• 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 Legislation Research
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• no.44
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• pp.343-386
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• 2013

"Financial ADR" system in South Korea can be represented by so-called "Financial Dispute Resolution System", in which Financial Supervisory Service (FSS) and Financial Dispute Resolution Committee are the principal actors in operation of the system, and this is discussed as an "Administrative Financial ADR System". The system has over 10-year history since it was introduced in around 1999. Nonetheless, it was not until when financial consumer protection began to be highlighted after the 2008 financial crisis that Financial ADR system actually started to draw attention in Korea. This was because interest has been rising in "Alternative Dispute Resolution (ADR)" as an institutional measure to protect financial consumers damaged via financial transactions. However, the current discussion on the domestic Financial ADR system shows an aspect that it is confined to who is to be a principal actor for the operation of Financial ADR institution with main regards to reorganization of supervisory system. This article aims to embody these facts in an institutional model by recognizing them as a problem and analyzing the features of the Financial ADR system, thereby clarifying problems of the system and presenting the direction of improvement. The Korean Financial ADR system can be judged as "administrative model integrated model consensual model quasi-judicial model non-prepositive Internal Dispute Resolution (IDR) model". However, at the same time, it is confronted with a task to overcome the two problems; the system is not equipped with institutional basis for securing its validity in spite of the adopted quasi-judicial effect model; and a burden of operating an integrated ADR system is considerable. From this perspective, the article suggests improvement plans for security of validity in the current system and for expansion of industry-control ADR system, in particular, a system of prepositive IDR model. Amongst them, it suggests further plans for securing the validity of the system as follows; promotion to expand the number of internal persons and to differentiate mediation procedures and effect; a plan to keep a financial institution from filing a lawsuit before an agreement recommendation or a mediation proposal is advised; and a plan to grant suspension of extinctive prescription as well as that of procedures of the lawsuit.

• Journal of Environmental Policy
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• v.9 no.4
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• pp.125-154
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• 2010

Among the various contemporary issues that confront the nation or society, surely one of the most difficult to resolve are environmental disputes between government authorities, developers, local residents and advocacy groups. While such disputes can in some cases be the result of a selfish and illegal NIMBY("Not In My Back Yard") syndrome, they can also be an expression of rational and appropriate demands from local residents to preserve the ecology and quality of life for their communities, particularly with respect to the planning of "locally unwanted land uses(LULUs). Accordingly, rethinking NIMBYism entails several implications for planning of LULUs. Until the 20th century many planners considered only "functional rationality" in their decision making, in a confrontational "us versus them"process of "decide-announce-defend(DAD)". I believe, however, that a fair, voluntary, and negotiated process of alternative dispute resolution(ADR) based on consensus building is the means to resolving these disputes. A voluntary process is more desirable and feasible than a coercive one, making ADR well worth pursuing. From this perspective, I explore several factors which affect the resolution of environmental disputes. I suggest three main factors as follows: i) extension of citizen participation, ii) enhancement of equity, and iii) building of trust. Alternatives are presented based on these factors.

• Journal of Arbitration Studies
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• v.25 no.2
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• pp.19-47
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• 2015

International arbitration is an increasingly popular means of alternative dispute resolution for cross-border commercial transactions. The primary advantage of international arbitration over court litigation is enforceability. An international arbitration award is enforceable in most countries in the world. Especially, statistics indicate of ASEAN such as Malaysia and Singapore that the vast majority of defeated companies comply with the terms of international arbitral awards against them or settle soon after the award is rendered. Unlike Malaysia and Singapore, in Indonesia, there are several grounds for refusal of enforcement of an award including where both the nature of the dispute and the agreement to arbitrate do not meet the requirements set out in the Arbitration Law. Because Indonesia does not acknowledge decisions of foreign courts, theoretically they could enforce an international arbitral award which was set aside by the court in the seat of arbitration. This paper introduces the legal system and cases of recognition and enforcement of foreign arbitration awards in ASEAN, especially Malaysia, Singapore, and Indonesia. Secondly, by comparing their law and cases, the paper emphasized the international suitability and global fitness in involved in recognition and enforcement of foreign arbitration awards.

• The Korean Society of Law and Medicine
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• v.13 no.1
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• pp.295-329
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• 2012

A medical malpractice case requires special legal protection, considering its characteristics, such as seriousness and long term effects of its damages, medical information asymmetry between practitioners and patients, and difficulties in realization of liability. Taking the points above into consideration, Medical Malpractice Arbitration Act of 2012(MAA) has legislative intent to protect the rights of the injured from medical malpractice, while protecting the stability of medical practice by providing arbitration as an alternative dispute resolution. However, constitutional review is required for one new scheme of compensation for medical injuries during delivery, which is implemented in MAA of 2012, especially with regard to freedom to exercise occupation, property, equality under the Constitution. Two important aspects are 1. according to the law, absolute liability applies to compensation for damages during delivery without negligence of practitioners; and 2. the practitioner bears some portion of the cost, 30% in the law above. This article aims to analyze this new institution in various aspects of the Constitution, and, as a result, it does not comply with constitutional criteria.

• Journal of Arbitration Studies
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• v.33 no.4
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• pp.69-87
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• 2023

This study recognizes that consumers are becoming important as a subject of commerce as they change from the existing e-commerce market to the consumer-led e-commerce market, and proposes the use of consumer intervention as a remedy for consumer damage in international e-commerce disputes. In Korea, there is no separate regulation on consumer arbitration, so we will analyze the U.S. arbitration judgment, which is the most active in consumer arbitration, and examine it through the U.S. arbitration judgment so that arbitration can become active as a remedy for consumer disputes in Korea. In summary, in the event of a dispute between consumers and companies through e-commerce, consumers' preference for arbitration was confirmed through repeated collection of opinions without coercion. It is necessary to revitalize arbitration in Korea to protect consumers through arbitration rather than litigation and to resolve disputes through active alternative dispute resolution as a solution to disputes in e-commerce, which is rapidly increasing through U.S. consumer arbitration cases. The topic of the activation of arbitration has been mentioned a lot before, but the preference for arbitration is still lower than that of litigation. However, from now on, as the appearance of existing commerce has changed to consumer-led e-commerce, it has proposed a plan to use arbitration to rescue consumers from damage as consumers as buyers grow in the market.

• Journal of Arbitration Studies
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• v.12 no.1
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• pp.89-122
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• 2002

Mediation is defined most simply as facilitated negotiation. An impartial third party(the mediator) facilitates negotiations between disputants or the disputants' representatives in their search for a resolution of their dispute. The disputants remain responsible for negotiating a settlement; the mediator's role is to assist the process in ways acceptable to the disputants. Sometimes this means merely providing a forum for negotiations or convening the negotiations. More often it menas helping the disputants find areas of common ground for resolution, offering alternatives, supervising the bargaining, then drafting the final settlement. mediation can occur between two disputants seeking to resolve one issue, or among many disputants seeking to resolve several issues. The disputants can participate in mediation themselves or they can have representatives negotiate for them. Mediation most often is a voluntary process. In Korea, as mediation could not have developed for lack of people's correct understanding on it, there must be enlightenment against the people, and it needs subsidiary from government and support from lawers. In order for the lawers to accomplish their role in progressing mediation procedure favorably, they should study and develope on the skill on mediate the case. Furthermore through the good mediation system, it also needs to induce the parties to participate in mediation procedure voluntarily. On the other hand, It also needs to bring up and develope the ADR institution to proceed the mediation impartially and effectively, and let them improve the mediation systems, like the Korean Commercial Arbitration Board.

• Journal of Arbitration Studies
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• v.25 no.4
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• pp.119-136
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• 2015

The contracting parties must be provided a litigation scheme in order to resolve a dispute. This means taking advantage of effective measures for mediation or arbitration. A lease transaction is likely to occur mainly after a dispute. It is necessary to take the appropriate measures in advance. In general, when a variety of contracts are created, conflicts arise and disputes have to be resolved through mediation and arbitration documents, and adjustment or intervention is called for. Arbitration system is a system that is established based on the trust of the arbitral tribunal. For such system, quality education for enhancing professionalism required of the arbitrator is important. A party responding to an arbitration agreement presents a problem. The current system must ensure that there are no disadvantaged parties. However, a party must depend on an arbitration agreement that is part of the law rescue system. A litigation support by the local Bar Association must be carried out. It should be notified of the contents of the contract to select a strategy that will best resolve the conflict. In the case of lease transactions, there is a need to create a scheme to make a standard agreement that inserts an arbitration clause. Lease sale and purchase agreement or lease agreement is a form of contract that has been frequently used. Here, the arbitration agreement clause for a lawyer that will serve as arbitrator should be inserted. It is a scheme that can be activated for individuals in poor areas. In addition, it is possible to see it taking a scheme to take advantage of the lawyer system for the future of the town. The Attorney System of a town is a system that the Korean Bar Association, Legal Department has put in place since 2013. If a real estate trade dispute occurs, the role of the intermediary attorney should be to carry out his duties efficiently. In the case of real estate transaction conflicts, the lawyer of the village should be registered as the arbitrator. It is important to establish a basis of regulations through this type of real estate transaction accident analysis. Before proceeding with various adjustment systems, it is desirable to expand the arbitration region. Now we need a realtor amendment. It is the part where fragmentation of intermediary qualification is required, along with the eligibility of a subdivision.

• Journal of Arbitration Studies
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• v.19 no.2
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• pp.197-227
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• 2009

This study describe the brief history and current statutes of Philippine arbitration. The practice of arbitration in the Philippines can be traced as far back as the barangay. From 1521, Spanish Civil Code became effective in the Philippines. During this period, the Supreme court was discouraged by the tendency of some courts to nullify arbitration clauses on the ground that the clauses ousted the judiciary of its jurisdiction. According to the growing need for a law regulating arbitration in general was acknowledged when Republic Act No.876(1953), otherwise known as the Arbitration Law, was passed. In 1958, the Philippines became a signatory to the New York Convention and in 1967 the said Convention was ratified. But no legislation has been passed. As a consequence, foreign arbitral awards have sometimes been deemed only presumptively valid, rather than conclusively valid. Fifty years after, the Philippine Congress enacted, Republic Act No. 9285, otherwise know as the Alternative Dispute Resolution Act of 2004. The enactment was the Philippines solution to making arbitration an efficient and effective method specially for international arbitration. To keep pace with the developments in international trade, ADR Act of 2004 also ensured that international commercial arbitration would be governed by the UNCITRAL Model Law on International Arbitration and also fortified the use and purpose of the New York Convention by specifically mandating. If the international commercial arbitration will be revitalization in the near future in the Philippine, it will be shown that the model law's comprehensive provisions will give the beat framework for arbitration.. The writer expect that Philippines continues in its effort to be the premier site for international arbitration in Southeast Asia.

• Health Policy and Management
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• v.22 no.3
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• pp.315-346
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• 2012

The legal relationship between patient and physician is legally equal relationship. But, in times past, patients be compelled to sign an unequal contract, substantially. Because of the imbalance between supply and demand in the health care market. Today, the law of supply and demand in the health care market is running well. And as the cognition of citizens' rights grows, the relationship between patient and physician can also get a lot of changes. Patients have the right to know the information about medical care, and to decide whether or not to get treatment including invasions against their own bodies. In other words, Doctors have an obligation to explain to their patients. If doctors did not provide patients sufficient explanation or information, it violates the right of patients. This is a tort, or a breach of contract. To improve the remedy for violation of patient's right, patient is able to be protected by status as consumer. If patient is a kind of consumer in terms of medical consumption, he/she as consumer can enjoy supplementally the consumer's right. The patient as a consumer can exercise now a consumer's right as a constitutional right. In addition, with respect to consumer's rights, Framework Act on Consumers was enacted. This Act is based on constitutional provisions of Article 124 and the Act can be seen as a law that embodies consumer right because the provision of the constitutional law delegates specific contents. In the health care field, patients need to win recognition the statue of the consumer to hold the sovereignty of the consumer. In particular, if patients are consumers, they may be able to make good use of the quickly and efficiently collective dispute resolution and association lawsuit to rescue their damage, the Alternative Dispute Resolution(ADR) of Framework Act on Consumers.