• 한국중재학회지:중재연구
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• 제16권1호
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• pp.187-217
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• 2006

This study has the purpose to investigate other countries' arbitrator systems to compare with the current KCAB's system and to find their merits and demerits so that we can make up for the demerits of KCAB's arbitrator system and to make the most use of its merits. The most important factor of arbitral procedure is the arbitrator. If we compare clauses related with the arbitrator to KCAB's arbitration rules, expand the merits of it and apply the merits of other arbitrating organs, KCAB's arbitration can avoid criticism which it has got so far while it was handling the international cases. Also, we may need to grow up the role of the executive office in the range of respecting the self-government of the concerned party for the rapid proceeding of arbitral procedure. According to the foreign countries' international arbitration rules, they go with the process that they firstly give the concurrence period to the concerned parties, especially related with the arbitral procedure such as selection of arbitrator or filling the vacancy of the arbitrator, and as for the concerned party who doesn't fulfill within that period, the arbitrating organ or the other one corresponding to the pertinent arbitrating organ in case of the ad-hoc arbitration rules fulfill instead.

• 한국중재학회지:중재연구
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• 제24권4호
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• pp.3-28
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• 2014

This article examines the Annulment Mechanism of arbitral awards rendered under the auspices of the International Centre for Settlement of Investment Disputes (ICSID). The primary feature in the ICSID and non-ICSID arbitration regarding the review of awards involves the unified nature of the ICSID system, as compared to the scattered and multi-layered system of review existing under arbitration rules, national legislation, and international convention. This unity can be perceived at different levels. The ICSID annulment mechanism entails only a set of rules; thus, only one set of application standards of review will be implemented, as opposed to sometimes conflicting layers of application rules, laws, and convention, as in the case of non-ICSID arbitration. However, some of the recent annulment decisions have raised serious questions about the breadth of annulment in practice, as opposed to its original design. Nonetheless, implementing a new system under the ICSID awards to be reviewed by an appellate court appears to create more problems than it solves. The potential impact of introducing that mechanism could result in a longer and more complex proceeding, with uncertain benefits.

• 무역상무연구
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• 제55권
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• pp.33-62
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• 2012

Arbitration is an essential methods of settlement for disputes in international commercial transaction. UNCITRAL Arbitration Rules have been in force after adoption in 1976. Over the 30 years, UNCITRAL Arbitration rules have been modeled for domestic and international arbitration institutes for setting and revision on their arbitration rules. UNCITRAL Committee has published the revised Arbitration Rules which entered into force after 15 August 2010. Therefore new version of arbitration rules are substituted for the previous version of UNCITRAL Arbitration Rules 1976 since its enforcement. The revised arbitration rules of UNCITRAL have been changed in various items for convergence with new trends and modern practices on arbitration including information communication and technology. The revision of arbitration rules focused on resolving problems in practice and codifying best practice to enhance the efficiency of arbitration conducted under the rules. There are considerable in a number of important respects on the removing the restricted in writing requirement for information technology, adapting the multiparties arbitration, joinder arbitration, truncated arbitral tribunal and adjustment in terms and condition and construction simply. Also a number of provisions have been refined, varied and clarified with new articles included. Conclusively the new revised arbitration rules fill a number of gaps which became apparent in the UNCITRAL Arbitration Rules 1976 to bring into line with new modern practices of international arbitration rules in international commercial disputes. This paper focus on the study the problems and inspired points on significant revised provisions and its considerable points in arbitration environment. This paper is approaching to the comparisons of UNCITRAL revised Arbitration Rules 2010 with previous Arbitration Rules 1976 of UNCITRAL and International Arbitration Rules 2011 of KCAB.

• 한국중재학회지:중재연구
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• 제15권3호
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• pp.113-137
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• 2005

In the provisions of 'the Arbitration Law of China, there are special provisions for international arbitration. When a court refuses the recognition and enforcement of foreign arbitral awards or cancel the domestic awards relating to international arbitration, they have to adopt the provisions of 'Chinese Civil Procedure Law'. These provisions are the same as the provisions of Korean Civil Procedure Law concerning the reasons of renewal. In the Korean Arbitration Act, those provisions disappeared when it was revised on December 31, 1999. Among the characteristics of the Chinese arbitration system, a serious question is that it provides only institutional arbitration and there is no ad-hoc arbitration in the Chinese Arbitration Law. On the other hand, when the parties appoint three arbitrators according to their agreement, the parties appoint the third arbitrator by mutual agreement and when they fail to agree, the Arbitration Committee appoints the third arbitrator. In practice, as the parties hardly agree on the third arbitrator or sole arbitrator, the Committee usually appoints them. And appointing an arbitrator from out of their panel of arbitrators is permitted these days only under examination by the Arbitration Committee in accordance with the arbitration rules of the China International Economic and Trade Arbitration Commission, Other arbitration committees except the China International Economic and Trade Arbitration Commission are still prohibited from making appointments from out of their panel of arbitrators. Accordingly, arbitration in China cannot be predicted and poses a question about legal stability as party autonomy is restricted in the appointment of arbitrators and arbitral procedure. Such being the case it is strongly recommended to select Korea as the place of arbitration in transactions with China. However it is better to arbitrate than to file a law suit in China.

• 무역상무연구
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• 제38권
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• pp.155-180
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• 2008

The purpose of this paper is to examine the major elements of Arbitration Clause in international investment contracts and to help the investor, especially foreign investors, considering these elements when they draft the contracts. First of all, to describe the extent of the arbitrable issues broadly is very important by using the phrase such as "disputes in connection with". Furthermore in order to be enforceable, the issues must be a subject-matter to be submitted to arbitration in accordance with the laws of the place of arbitration and the law application to the merits of the disputes (N.Y. Convention, Art. II). Second, the appointment of the arbitrators usually shall be based on the principle of freedom of contract. If the parties do not agree on the appointment, it is decided in accordance with the arbitration rules of the institution by the tribunal. Third, the procedural rules of the arbitration are the arbitration rules of the arbitration institution in case of institution arbitration, unless otherwise agreed. Forth, what is the most importance element of Arbitration Clause is the place of arbitration. In this case, also the principle of freedom of contract has priority. Unless otherwise agreed, Washington is the place of arbitration in case of ICSID Arbitration, but in case of ICC Arbitration, neutral third country may be the place of arbitration. However in case of ad hoc arbitration, both parties should indicate the place. If not, the whole arbitration may be paralysed by an uncooperative party. Besides the major elements, I examined the relation between the arbitration clause and award enforcement in terms of sovereign immunity. The enforcement of awards in the field of state contracts many encounter the problem of the sovereign immunity, which means that the State itself or the State enterprise is the contract partner. To avoid the this problems, it is advisable for the parties insert the clause such as ICSID Model Clause XIX.

• 무역상무연구
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• 제28권
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• pp.91-117
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• 2005

The purpose of this paper is to examine practical and legal considerations in the choice of the "Seat of Arbitration". As the selection of the "Seat of Arbitration" in an international commercial contract is vital both judicially and practically, so to speak, in terms of enforceability of award, judical interference in arbitration proceedings, relative convenience and expense, and the selection of arbitrators, the selection should be carefully considered and examined. In case of institutional arbitration, when the arbitration clause does not nominate the seat, the administrator or the secretariat of the institution or the arbitrator tribunal would usually determine the seat. On the contrary in case of ad hoc arbitration, Unless otherwise agreed by the parties, the "Seat of Arbitration" would be determined according to the rules which are selected by parties or their arbitrators. To avoid confusing situation about the selection of the seat, this writer would like to recommend ICC or LCIA with each Standard Arbitration Clause. If the parties want any national arbitration institution because of the expenses incurred in international institution, AAA or CEPANI is recommendable in terms of the reputation, operating system and recognized performance. Specially ICC Court of Arbitration usually examines the award before it is issued, so the enforceablity would go up. Thus when the parties lay down the arbitration clause in their contract they should confirm whether the "Seat of Arbitration" is fixed or not. If not, at least they should examine the arbitration rules which would be applied, and know in advance how the seat be determined.

• 통상정보연구
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• 제19권2호
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• pp.169-190
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• 2017

중국과의 무역거래가 지속적으로 증가하고 있는 가운데 상사분쟁 발생 가능성도 커지고 있으며 사회주의 국가체제에 익숙하지 못한 한국 기업의 입장에서는 중국의 상사중재제도에 대한 연구는 필수불가결하다. 근래 중국은 국제표준과 시장경제에 맞추어 국내법규를 개정함으로써 외국기업들에게 법적 안정성 보장을 위한 지속적인 노력을 하고 있지만 여러 가지 문화적, 정치적, 사회적 특성으로 말미암아 법규의 내용에 한계점과 실무상의 문제점이 존재한다. 중국 상사중재제도는 국내중재와 국제중재 일부 구별 적용, 임시중재 불인정, 당사자자치의 제한, 중재기관의 독립성 부족, 중재에 대한 사법간여, 판정집행의 곤란 등 다른 국가와 차이점이 있다. 또한 중국의 중재기관에서는 중재절차 중에 판정부가 직접 조정을 진행하고 조정결과를 판정서로 작성하는 중재와 조정의 결합이 이루어지고 있다. 이와 같은 본 논문은 중국 상사중재제도의 법적 주요내용을 살펴봄으로써 중국 기업과의 상사분쟁해결에 대한 법적 실무적 대응방안을 제시하고자 한다.

• 한국중재학회지:중재연구
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• 제15권3호
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• pp.3-25
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• 2005

The companies' management strategies of the electronic commerce market are different from those of the traditional market. The main difference between the electronic commerce market and the traditional market is an IT network system which is a companies' management strategies in the electronic commerce market. This study focuses on the examination and analysis of the companies' management strategies which are constituted through influence on the effectiveness of the IT network system in the electronic commerce market and Promoting Arbitration System in The Era of Digital Economy this study is to introduce several alternative policies of the Government and companies to such formated IT network system of the electronic commerce market in the future. It's also suggested that the Korean Commercial Arbitration Board (KCAB) fully cover consideration and arbitration, while KCAB for Electronic Commerce activates its proper role of consulting and ad hoc arbitration by using electronic information. E-commerce sets up the probability that its merchants and customers will not exist in the same legal jurisdictions. The confusing application of laws and wide geographical dispersion of these parties will necessitate a faster and cheaper dispute resolution methodology. Therefore, online ADR may be effective for e-commerce dispute resolution. The examples of online ADR operation are the cyber mediation of Electronic Transaction Dispute Resolution Committee, the cyber mediation of Korean Commercial Arbitration Board, the cyber mediation of Click N Settle, the online ADR of BBB online, and the cyber arbitration of virtual Magistrate. The paper points out the last one as the most desired practice. This study results are how to minimize the disputes and the method of dispute settlement. Therefore, a role of arbitration proposed and emphasized. To protect the dispute in advance, it's suggested to revise rules timely following on technical changes, and emphasized that the dispute has to lead to arbitration settlement not for consuming unnecessary time and finance for enterprises and consumers.

• 한국중재학회지:중재연구
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• 제22권3호
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• pp.141-163
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• 2012

In Korea, although nearly all maritime arbitration cases are dealt with by the Korean Commercial Arbitration Board (KCAB), the total number of cases that are referred to the KCAB is relatively small compared with the total number of maritime cases that occur in Korea. There may be reasons why maritime arbitration is not utilized more in Korea. However, of the above reasons, the superseding one may be that there is still a lack of confidence in the credibility and foreseeability of maritime arbitration in Korea. To expand the use of maritime arbitration in Korea, it is essential that the base surrounding maritime arbitration be expanded. In addition, it is also necessary that specialists receivetraining in maritime law. In this context, it is strongly recommended that maritime and admiralty law be taught in law schools and be included as a regular subject on the Korean bar exam. Additionally, to promote maritime arbitration, a rule should be introduced allowing for shortened arbitration proceedings in Korea. Although Chapter 8 of the KCAB Arbitration Rules provide for "Expedited Procedure," this process alone is not because the rules for Expedited Procedure generally apply in arbitration cases where both parties have agreed in a separate agreement to follow the procedures provided or in any domestic arbitration valued atless than 100,000,000 Korean won. Therefore, the KCAB Arbitration Rules for Expedited Procedure must be reformed to encompass international arbitrations. Additionally, experts who are experienced in the maritime sector should be elected as arbitrators. Given the factthat a fair number of arbitration cases can be characterized as international, it is important that businesspersons who are very fluent in English be appointed as arbitrators in order to increase the reliability of maritime arbitration in Korea and save costs. Meanwhile, because lawyers and scholars constitute a considerable portion of KCAB arbitrators, commercial persons from relevant industries should be enlisted as arbitrators. Even though there are arguments for the establishment of an independent maritime arbitration board in Korea, establishment of a separate maritime arbitration board will not directly guarantee the prosperity of maritime arbitration in Korea. Instead of instituting a new maritime arbitration board, it is better that a reorganized KCAB modify existing arbitration proceedings to make them faster and more economical if maritime arbitration is to prosper. In this regard, ad-hoc arbitration would be an option for speedy and thrifty maritime arbitration. Finally, to gain the confidence of domestic and foreign parties, we cannot ignore the importance of advertising the specialties and qualifications of the KCAB and its personnel among business entities.

• 한국중재학회지:중재연구
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• 제20권3호
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• pp.3-24
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• 2010

In the approaching 21th century, the outstanding development in international trade and commerce has established arbitration as the preferred form of dispute resolution on international business transaction. Because the form of commercial dispute becomes more complicated and varied with the quantitative increase of them, the reasonable and rapid settlement of them must be the important problem simultaneously. In this article, the author discusses various issues on the recognition and enforcement of an foreign arbitral awards under Korean Arbitration Act, which is modeled after the Model Law on International Commercial Arbitration of the UNCITRAL of 1985. The Dec. 31, 1999 amendment to the Korean Arbitration Act admits the basis for enforcement of foreign arbitral awards rendered under United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958(commonly known as the New York Convention). Korea has acceded to the New York Convention since 1973. When acceding to the convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of anther Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provision relating to the enforcement of arbitral awards falling under the New York Convention consists of Article III, IV, V. In particular, Article V of the New York Convention enumerates the grounds for refusal of recognition foreign arbitral awards. The grounds are separated into two categories : One that abides by procedures and the others are based on national legal sovereignty. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of awards. Because Korea requires enforcement to be based on a judgement, the result is that arbitral of award holders are forced to institute domestic litigation.