• Journal of Arbitration Studies
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• v.22 no.1
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• pp.3-22
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• 2012

The Korean Commercial Arbitration Board ("KCAB") recently amended its 'International Arbitration Rules' and the 'Arbitration Rules', which became effective on September 1, 2011. Under the amendment, the 'Arbitration Rules' will be referred to as the 'Domestic Arbitration Rules' and in principle apply only to domestic arbitration cases. Accordingly, the amendment removed all of the provisions relating to international arbitration cases. In addition, under the amendment, the 'International Arbitration Rules' will automatically apply to all international arbitration cases unless the parties agree otherwise. The amended 'International Arbitration Rules' establish new expedited procedures for the international arbitration cases before the KCAB. The KCAB has also instituted additional changes related to international arbitration cases including reduction in the filing and administrative fees and appointment of prominent international foreign arbitrators on its panel. The remuneration for arbitrators has also increased to bring them more in line with the fees provided by other leading international arbitration institutions. While several problems remain, these most recent revisions must be seen as a step in the right direction for the KCAB.

• Journal of Arbitration Studies
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• v.12 no.1
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• pp.271-321
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• 2002

Every year, many million of business transactions take place. Ocassionally, disagreements develop over these business transactions. Many of these disputes are resolved by mediation, arbitration and out-of-court settlement options. The American Arbitration Association(AAA) helps resolve a wide range of disputes through mediation, arbitration, elections and other out-of-court settlement procedures. The AAA offers a broad range of dispute resolution services to business executives, attorneys, individuals, trade associations, unions, management, consumers, families, communities, and all level of governments. The 198,491 cases composed of the 194,303 arbitration cases and the 4,188 mediation cases, were filed with the AAA in 2000. These case filings represent a full range of matters, including commercial finance, construction, labor and employment, environmental, health care, insurance, real state, securities, and technology disputes. The Korean Commercial Arbitration Board (KCAB) does more than render arbitration services. It helps facilitate settlements and guarantee implementation thereof between trading partners at home and abroad involving disputes related to such areas as the sale of commodities, construction, joint venture agreements, technical assistance, agency agreements, and maritime transport. The 643 cases composed of the the 197 arbitration cases and the 446 mediation cases, were filed with the KCAB in 2001. There are some differences between the AAA and the KCAB regarding the number and the area of mediation and arbitration case filings, the breath of service offerings, the scope of alternative dispute resolution, and the education and training. In order to apply to the proceedings of the commercial mediation and arbitration, the AAA has the Commercial Mediation Rules, the Commercial Arbitration Rules, the Expedited Procedures, the Optional Procedures for Large, Complex Commerical Dispute, and the Optional Rules for Emergency Measures of Protection as amended and effective on September 1, 2000. In order to apply to the proceedings of commercial arbitration, the KCAB has the Arbitration Rules as amended by the Supreme Court on April 27, 2000, which have been changed to incorporate the revisions of the Arbitration Act that went into effect on December 31, 1999. There are some differences between the AAA's commercial Arbitration Rules and the KCAB's Arbitration Rules regarding the clauses of jurisdiction and administrative conference, number of arbitrators, communication with arbitrator, vacancies, preliminary hearing, exchange of information, oaths, evidence by affidavit and posthearing filing of documents or others, interim measures, serving of notice, form of award, scope of award, delivery of award to parties, modification of award, release of liability, administrative fees, neutral arbitrator's compensation, and expedited procedures. In conclusion, for the vitalization of KCAB and its ADR system, the following measures should be taken : the effective case management, the development of on0-line ADR, the establishment of ADR system of electronic commerce disputes, and the variety of dispute resolution rules in each expert field.

• Journal of Arbitration Studies
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• v.32 no.4
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• pp.53-85
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• 2022

Small and medium-sized enterprises ("SMEs") are vulnerable to trade secret misappropriation. Korea's legislation for the protection of SMEs' trade secrets and provision of civil, criminal, and administrative remedies includes the SME Technology Protection Act, the Unfair Competition Prevention Act, the Industrial Technology Protection Act, the Mutually Beneficial Cooperation Act, and the Subcontracting Act. Among these acts, the revised SME Technology Protection Act of 2018 introduced the "administrative technology misappropriation investigation system" to facilitate a rapid resolution of SMEs' technology misappropriation disputes. On September 27, 2021, Korea's Ministry of SMEs announced that it had reached an agreement to resolve the dispute between Hyundai Heavy Industries and Samyeong Machinery through the administrative technology misappropriation investigation system. However, not until 3 years and a few months passed since the introduction of the system could it be used to resolve an SME's technology misappropriation dispute with a large corporation. So there arose a question on the usefulness of the system. Therefore, we conducted a comparative legal analysis of Korea's laws enacted to protect trade secrets of SMEs and to address technology misappropriation, focusing on their legislative purpose, protected subject matter, types of misappropriation, and legal remedies. Then we analyzed the administrative technology misappropriation investigation system and the cases where this system was applied. We developed a proposal to enhance the usefulness of the system. The expert interviews of 4 attorneys who are experienced in the management of the system to check the practical value of the proposal. Our analysis shows that the lack of compulsory investigation and criminal sanctions is the fundamental limitation of the system. We propose revising the SME Technology Protection Act to provide correction orders, criminal sanctions, and compulsory investigation. We also propose training professional workforces to conduct digital forensics, enabling terminated SMEs to utilize the system, and assuring independence and fairness of the mediation and arbitration of the technology misappropriation disputes.

• Journal of Arbitration Studies
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• v.20 no.2
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• pp.49-65
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• 2010

The expanded role of courts in arbitral procedures is said to have certain detrimental effects on the cost-effective approach to arbitration. This is the case when the court is appointing an arbitrator, pursuant to the specific domestic legal regime. The danger of decisions, especially those with expanded role of courts can create delays and hurdles. Even with contradictory viewpoints, the role of the court should complement the arbitral tribunal and not impede the functioning of arbitration independent of the judicial system. In this paper, two recent cases in Korean Supreme Court are reviewed, trying to find the proper implications on further arbitration practices especially in the stage of arbitrator appointment. Even though the proper appointment of arbitrators is essential to the existence of valid arbitration proceedings, appointment of arbitrators by the courts should constitute an administrative power, and not a judicial power. The cases reviewed make clear that the court must play a facilitative role in international commercial arbitration by assisting the parties in appointing the arbitral tribunal, the court intervention must be kept to a minimum.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.33
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• pp.121-144
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• 2007

The International Chamber of Commerce has been the world's leading organization in the field of international commercial dispute resolution. Established in 1923 as the arbitration body of ICC, the International Court of Arbitration has pioneered international commercial arbitration as it is known today. The ICC International Court of Arbitration is the world's foremost institution in the resolution of international business disputes. While most arbitration institutions are regional or national in scope, the ICC Court is truly international. The purpose of this paper is to examine their advantages and to introduce main contents provided in ICC Rules of Arbitration as follows; First, before the actual merits of the case can be addressed, the Arbitral Tribunal must first draw up the Terms of Reference. The Terms of Reference should include the particulars listed in the ICC Rules. Apart from the full names and description of the parties and arbitrators, the place of arbitration and a summary of the parties' respective claims, they contain particulars concerning the applicable procedural rules and any other provisions required to make the Award enforceable at law Second, the Scrutiny is a fundamental feature of ICC arbitration and is one that distinguishes it from the other major international arbitration rules. The scrutiny system has two aspects ; the first is to identify or modify the defects of form, while the second is to draw the arbitrators' attention to points of substance. Third, as soon as practicable, the Court fixes an advance on costs intended to cover the estimated fees and expenses of the arbitrators, as well as the administrative expenses of ICC. Specially, the advance on costs fixed by the Court shall be payable in equal shares by the Claimant and Respondent. Finally, the parties are also free to select the arbitrator or arbitrators of their choice. The Court or the Secretary General confirms arbitrators nominated by the parties. Taking a step forward, to upgrade the quality of the award of KCAB, it is desirable to consider how to incorporate the main contents of the ICC Arbitration into Korea Commercial Arbitration Rules.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.519-546
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• 2004

On June 27, 2002 Canadian Internet Registration Authority (CIRA) launched dot-ca domain name dispute resolution service through BCICAC and Resolution Canada, Inc. The Domain name Dispute Resolution Policy (CDRP) of CIRA is basically modelled after Uniform Domain Name Dispute Resolution Policy(UDRP), while the substance of CDRP is slightly modified to meet the need of Canadian domain name regime and its legal system. Firstly, this article examined CIRA's domain name dispute resolution policy in general. It is obvious that the domain name dispute resolution proceeding is non-binding arbitration to which arbitration law does not apply. However it still belongs to the arbitration and far from the usual mediation process. Domain name arbitrators render decision rather than assist disputing parties themselves reach to agreement. In this respect the domain name arbitration is similar to arbitration or litigation rather than mediation. Secondly it explored how the panels applied the substantive standards in domain name arbitration. There is some criticism that panelists interprets the test of "confusingly similar" in conflicting manner. As a result critics assert that courts' judicial review is necessary to reduce the conflicting interpretation on the test of substantive standards stipulated in paragraph 3 of CDRP. Finally, it analysed the court's position on domain name arbitral award. Canadian courts do not seem to establish a explicit standard for judicial review over it yet. However, in Black v. Molson case Ontario Superior Court applied the UDRP rules in examining the WIPO panel's decision, while US courts often apply domestic patent law and ACPA(Anticyber -squatting Consumer's Protection Act) to review domain name arbitration decision rather than UDRP rules. In conclusion this article suggests that courts should restrict their judicial review on domain name administrative panel's decision at best. This will lead to facilitating the use of ADR in domain name dispute resolution and reducing the burden of courts' dockets.

• Health Policy and Management
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• v.2 no.1
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• pp.80-114
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• 1992

Current compensation schemes for medical malpractice based on negligence is absolutely malfunctioning in Korea. Focussing on the reform of present tort systems for resolving medical malpractice disputes, this paper discusses the alternative models of the Social Relief Schemes for Medical Malpractice (SRSMM). Alternative models of SRSMM should fundamentally be based on either negligence or nofalult compensation principle. On the foundation of the previous relief principle, the SRSMM should be equupped with three major components-the preventio/reduction of the sharp increasing medical malpractice, the effective and efficient resolving process for malpractice disputes and the proper social financing scheme for compensation. The paper deals with pros and cons of the possible alternative models for reform centering on the three major components of the scheme. As conclusions, administrative arbitration machinaries and a compulsory fund for compensating the injured under the negligence principle are proposed to resolve the current problems Korea has faced.

• Journal of Arbitration Studies
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• v.24 no.2
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• pp.3-31
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• 2014

As all aspects of international activity have kept growing in good transaction, transnational investments, joint ventures, and the licensing of intellectual property, it is inevitable for disputes to increase across national frontiers. International disputes can be settled by arbitration and ADR. In the situation presented in the paper, any dispute shall be finalized by arbitration and conciliation in the Gaeseong Industrial Complex. Inter-Korean Commercial Arbitration in the Gaeseong Industrial Complex has become the principal method of resolving disputes in trade, commerce, and investment in accordance with the "Agreement on South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). But the follow-up measures of the said agreements have not been fulfilled. Some prerequisite measures of the Inter-Korean commercial arbitration must be satisfied. In order to proceed with arbitration and conciliation in the Gaeseong Industrial Complex, we need to ask the following: Does the status of an arbitrational matter? Should an agreement to arbitrate contain a choice of law clause? Should one provide for one arbitrator or three? How should the arbitrators be selected? What is the relation between party-appointed arbitrators and the presiding arbitrator (neutral arbitrator)? Do arbitrators compromise more than the litigation? Can conciliation be combined with arbitration? To execute the enactment of arbitration regulations, the contents of the Arbitration Rules of the Korean Commercial Arbitration Board (South) and the Korea International Trade Arbitration Committee (North), together with the Korean Arbitration Act and External Arbitration Act of North Korea and the UNCITRAL Model Arbitration Law and UNCITRAL l Arbitration Rules are reflected in the Rules. There are many aspects of the Inter-Korean Commercial Arbitration. It is essential to understand key elements; namely, the arbitration agreement, appointment of arbitrator, arbitral proceeding and arbitral award, and enforcement and setting aside of arbitral award. This research deals with five chapters. Chapter 1 provides the introduction. Chapter 2 deals with trade volume between South and North Korea and the kinds of dispute in Gaeseong. Chapter 3 addresses contents and follow-up measures of the agreement on the "South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). Chapter 4 features the problems and tasks of the pertinent agreements. Chapter 5 gives the conclusion. Enabling parties to find an amicable solution to the dispute in the Gaeseong Industrial Complex can lead to a useful and appropriate framework either through direct negotiation or by resorting to conciliation or mediation in accordance with pertinent agreements and follow-up measures contained in the agreements.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.39
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• pp.179-220
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• 2008

The notion of the 'court' is most unique to ICC arbitration. This paper focuses on what the court is and how it works and what the role and the duties of the Court under the ICC arbitration imply for the KCAB International Arbitration Rules. The Court is an administrative body that administers arbitrations taking place under the ICC Rules of Arbitration. The Court consists of 126 members from 88 countries around the world. Court members participate in decision-making process by way of attending the committee sessions and plenary sessions. At the Court's committee sessions, the Court fixes advance on costs; reviews the prima facie existence of arbitration agreements; fixes the place and language of arbitration, and the number of arbitrator(s); confirms and approves arbitrators; scrutinizes draft awards, determines the costs of arbitration; decides on extensions related to Terms of Reference, draft awards and correction and interpretation of the awards. At the Court's plenary sessions, the Court performs only two responsibilities: the challenge or replacement of arbitrators or the scrutiny of draft awards. The Court is required to scrutinize draft awards involving states or state entities, drafts with huge amounts in dispute or complex technical or legal questions, and as well as draft awards to which a dissenting opinion has been attached. Turning to the KCAB International Arbitration Rules, Article 1(3) provides that the KCAB shall establish an International Arbitration Committee. Further, it is provided that the KCAB shall consult with the said Committee with respect to challenge and replacement/removal of arbitrators pursuant to Article 1(3). The notion and role of the International Arbitration Committee was originally adapted from the Court to ICC arbitration, but its role was quite reduced in the process of enactment of its Rules. Accordingly, I examined the detailed roles of the Court to ICC arbitration in this paper and hereby suggest that the KCAB International Arbitration Rules shall be amended in the following ways: The Secretariat of the KCAB shall: fix advance on costs at the first stage and the costs of arbitration at the final stage of the proceedings; determine the number of arbitrators; review the prima facie of existence of arbitration agreement; confirm arbitrators; decide extensions related to time table, draft awards and correction and interpretation of the awards. I, also, suggest that the arbitral tribunals shall fix the place of arbitration and the language of arbitration and make a final decision on the validity of arbitration agreement. With regard to the International Arbitration Committee, it is desirable for its Rules to empower the Committee to recommend any prospective arbitrator and to review and decide challenge and replacement/removal of arbitrators.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.57-72
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• 2011

According to Japanese Patent Act, the Japanese Patent Office, administrative organization, was authorized to decide validation of patent. However, Supreme Court of Japan held that a court is able to decide the invalidation of patent in 11th April, 2000, which caused the reform of Japanese Patent Act in June 2004. Reformed Patent Act established the article 104-3 and makes it for a court to decide the patentability where there are grounds for a patent invalidation. Through this amendment to the Patent Act, the legislative system to decide the patent validation has been reorganized and furthermore alleged infringer is allowed to argue against the patent validation by making use of infringement litigation procedure through defenses against patent invalidation as well as invalidation trial procedure for to file a request for a trial for patent invalidation to the Japanese Patent Office. That is to say, the article 104-3 was established in the Japanese Patent Act in the wake of Kilby, and thus a court, which is judicial authority, not administrative disposition agency is also able to decide the patent validation. Thus this article discuss how a court, the authority of which only patent infringement cases fell under, has been authorized to arbitrate cases about the patent validation and the decision of the patent validation in a court.