• Journal of Arbitration Studies
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• v.23 no.4
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• pp.55-76
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• 2013

This study aims to analyze the main features of Mongolian arbitration system compared with Korean Arbitration Law which was revised under the UNCITRAL Arbitration Model Law. On the basis of this comparative study, certain differences are suggested: First, the environment of Mongolian arbitration is still insufficient in terms of its operation and usage at the international level. Second, the Mongol National Arbitration Court has established Ad-hoc Arbitration Rules and has promoted Ad-hoc Arbitration although it is an institutional arbitration organization. Third, the arbitration objects are defined as the types of tangible and intangible assets in Mongolia which are different from those of the Korean Arbitration Law. Accordingly, court and officer disputes, family disputes, labor-management relations, and criminal matters are covered by the arbitration objects. Fourth, Mongol Arbitration Law specifies the following persons disqualified for arbitrator appointment: the member of the Constitutional Court, judge, procurator, inquiry officer, investigator, court decision enforcement officer, attorney, or notary who has previously rendered legal service to any party of the disputes, and any officials who are prohibited by laws to be engaged in positions above the scope of their duties. Fifth, the arbitrator selection and appointment criteria should be documented, and the arbitrator should have the ability to resolve the disputes independently and fairly and achieve concord from both parties. Sixth, if there is no agreement between the parties, the arbitration language should be Mongolian, and the arbitral tribunal has no power to decide on it. Seventh, despite the agreement for a documentary hearing between the parties, there should be provided opportunities for an oral hearing if either of the parties requires it. Eighth, if the parties do not understand the language of the arbitration, the parties can directly ask the translation service. They should also keep secrets in the process of arbitration. Ninth, the cancellation of arbitral award is allowed by the application of the parties, not by the authority of the court. Except for the nine differences above, the Mongolian arbitration system is similar to that of the Korean Arbitration Law. This paper serves to contribute to the furtherance in trade relationship between Mongolia and Korea after the rapid and efficient resolution of disputes.

• Journal of Arbitration Studies
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• v.17 no.2
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• pp.101-124
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• 2007

The legal systems and open-door policies to foreign affairs in North Korea have been followed by those of China. Whereas an arbitration system of South Korea accepted most parts of UNCITRAL Model Law, North Korea has succeeded to an arbitration system of a socialist country. China, under the arbitration system of socialist country, enacted an arbitration act reflected from UNCITRAL Model Law for keeping face with international trends. We have used these three arbitration system as a tool for analyzing an arbitration system in North Korea. With an open-door policy, North Korea and China enacted an arbitration act to provide a legal security. Therefore, the core parts of arbitration system in North Korea and China are based on a socialist system while those of South Korea is on liberalism. So, North Korea and China enacted an arbitration act on the basis of institutional arbitration, on the other side, South Korea is based on ad-hoc arbitration. Because of these characters, in terms of party autonomy, it is recognized with the order as South Korea, China and North Korea. Also North Korea enacted separate 'Foreign Economic Arbitration Act' to resolve disputes arising out of foreign economies including commercial things and investments. There are differences in arbitration procedures and appointment of arbitrators : South Korea recognizes parties' autonomy, however parties should follow the arbitration rules of arbitration institutes in North Korea and China. According to an appointment of arbitrators, if parties fail to appoint co-arbitrators or chief arbitrators by a mutual agreement, the court has the right to appoint them. In case of following KCAB's rules, KCAB secretariats take a scoring system by providing a list of candidates. A party has to appoint arbitrators out of the lists provided by arbitration board(or committee) in North Korea. If a party may fail to appoint a chief arbitrator, President of International Trade Arbitration Board(or Committee) may appoint it. In China, if parties fail to appoint a co-arbitrator or a chief arbitrator by a mutual agreement, Secretary general will decide it. If a arbitral tribunal fails to give a final award by a majority decision, a chief arbitrator has the right for a final decision making. These arbitration systems in North Korea and China are one of concerns that our companies take into account in conducting arbitration procedures inside China. It is only possible for a party to enforce a final arbitral award when he applies an arbitration inside North Korea according to International Trade Arbitration Act because North Korea has not joined the New York Convention. It's doubtful that a party might be treated very fairly in arbitration procedures in North Korea because International Trade Promotion Commission controls(or exercises its rights against) International Trade Arbitration Commission(or Board).

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.79-102
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• 2008

When several parties are involved in a dispute, it is usually considered desirable that the issues should be dealt with in the same proceedings, rather than in a series of separate proceedings. This saves time and money. It avoids the possibility of conflicting decisions on the same issues of law and fact, since all issues are determined by the same tribunal at the same time. Where there is a multi-party arbitration, it may be because there are several parties to one contract, or it may be because there are several contracts with different parties that have a bearing on the matters in dispute. In international trade and commerce, for individuals, corporations or state agencies to join together in a joint venture or consortium or in some other legal relationship of this kind, in order to enter into a contract with another party or parties, where such a contract contains an arbitration clause and a dispute arises, the members of the consortium or joint venture may decided that they would each like to appoint an arbitrator. A different problem arises where there are several contracts with different parties, each of which has a bearing on the issues in dispute. A major international construction project is likely to involve not only the employer and the main contractor, but also a host of special suppliers and sub-contractors. Each of them will be operating under different contracts often with different choice of law and arbitration clauses. The appointment of the arbitrator or the composition of the arbitral tribunal should be in accordance with the agreement of the parties. The parties have to be equally treated in the constituting of the arbitral tribunal and the arbitral proceedings. However, the right of the parties to nominate a member of the arbitral tribunal could be taken away from them, if they are subject to the restrictions by means of the law of the country where the arbitration is taking place. That is, multiple parties jointly should nominate one arbitrator, where there they have to exercise their substantive right in common, or one of them exert his substantive right, then it has an effect on another parties, or they, whether as claimant or as respondent, get the same or similar treatment in the arbitral procedure. Therefore it is necessary to intend to settle multi-party disputes quickly and efficiently.

• Journal of Arbitration Studies
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• v.15 no.3
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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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.481-507
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• 2009

Along with continuous increase in international investments encouraged by wide spread bilateral investment treaties (BIT) including free trade agreements (FTA), international investment disputes have been also increasing. This means that a host State, an importer of foreign investments, and a investor who exports its investment to foreign State, need to take measures to prevent international disputes arising from international investment or to prepare for the arbitration for resolving the disputes. Under these circumstances, this paper compares ICSID arbitration rules and UNCITRAL arbitration rules in respect of (i) the institution of arbitration, (ii) the appointment of arbitrators and the composition of arbitral tribunal, and (iii) the procedures for, and the form of, arbitral awards. On base of this comparison, this paper further suggests certain practical issues that the host State's government and the foreign investors should be aware of in order to be ready for the resolutions of disputes by ICSID or UNCITRAL arbitrations.

• Journal of Arbitration Studies
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• v.17 no.2
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• pp.23-41
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• 2007

The role of ICC Court of Arbitration in ICC Arbitration is critical in maintaining the good reputation and worldwide recognition. While most arbitration institutions are the products of regional on national private associations, which play a relatively limited role in appointing or confirming the arbitrators, the Court of Arbitration is not only international in the appointment of arbitrators through the each National Committee, but also intervene in the confirmation of the prospective arbitrators proposed by the parties. Thus the ICC Arbitration is undoubtedly the most highly-supervised form of institutional arbitration available. The purpose of this paper is to examine the appointment and confirmation system of ICC Arbitration, to find the distinctive features of the ICC Rules of Arbitration and to check how to apply the features in the Rules of International Arbitration for the Korean Commercial Arbitration Board(KCAB Rules). Although the KCAB Rules have inherent limitations in the appointment of the arbitrators comparing with the ICC Court. They do not have any confirmation system of the arbitrator proposed by the parties. Although no arbitral institutions is in a position to guarantee completely the ultimate quality and efficacy of the process, the ICC, more than any other institution has historically endeavored to do so through a combination of the efforts of its International Court of Arbitration and National Committees. Composed of legal professionals of more than 75 nationalities, the Court, with the support of its permanent Secretariat in Paris, brings to bear on the decisions that it is responsibility to make the collective and disparate knowledge and experience of a multinational body. Therefore, if the KCAB wants to attract many international disputes, it should try to benchmark the ICC Rules of Arbitration, expecially the Article 9, to secure the prominent arbitrators throughout the world, even though a lot of limitations are exist. The positive role of the ICC Court of Arbitration gives us very important signal.

• Journal of Arbitration Studies
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• v.26 no.1
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• pp.29-51
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• 2016

This paper reviews the Supreme Court decision of the United Kingdom in Jivraj v. Hashwani (2011) concerning the employment issue of arbitrators, falling within the exception of genuine occupational requirement under the Employment Equality (Religion or Belief) Regulations 2003, and nationality of arbitrators. In 2011, the Supreme Court of the United Kingdom delivered its judgment in Jivraj v. Hashwani, unanimously overturning decision of the English Court of Appeal. The facts of this case and the decision of the Court of Appeal have been widely discussed. The decision of the Supreme Court has been met with approval within the international arbitration community in London, having restored the legal position to that prior to the Court of Appeal's ruling. Thus, the Supreme Court unanimously overturned the Court of Appeal's finding that arbitrators are the employees of the arbitrating parties. Arbitrators were held to be genuinely self-employed, and therefore outside the scope of the Regulations or Equality Act(2010). As such, the anti-discrimination provisions are not applicable to the selection, engagement or appointment of arbitrators. Most importantly, the Supreme Court's finding that arbitrators are not employees removes the possibility of challenges to arbitration agreements on the grounds that they are in breach of the Equality Act. As a practical matter, parties no longer need to consider carving out nationality provisions when drafting arbitration agreements.

• Journal of Arbitration Studies
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• v.24 no.4
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• pp.99-125
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• 2014

The purpose of this paper is to introduce the arbitral proceeding system in Indonesia. Arbitration in Indonesia is governed by Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution (Arbitration Law). Also, the Indonesian National Board of Arbitration (BANI) is the main arbitration body in Indonesia. BANI handles both domestic and international disputes. BANI has published its Rules of Arbitral Procedure (the BANI Rules). Within a period of not longer than 30 days after receiving the petition for arbitration, the respondent must submit its reply. Also, if the respondent wishes to assert against the claimant a counter-claim in connection with the dispute, the respondent may submit such counter-claim together with its statement of defense no later than the first hearing. This paper suggests that the following may be some of the disadvantages to using arbitration under the BANI Rules. The first is that final decision or approval regarding the designation of all arbitrators shall be in the hands of the Chairman of BANI. It is the chief problem facing the international stream of arbitration systems. The second is that arbitrators must have certain minimum qualifications. BANI Rules provide the same requirements for the qualifications of the arbitrators as the Arbitration Law. The third is that the BANI Rules require arbitrators in BANI-administered references to be chosen from BANI's list of arbitrators. BANI can also consider a recognized foreign arbitrator if the foreign arbitrator meets the qualification requirements and is prepared to comply with the BANI Rules. This includes the requirement that the appointing party must bear the travel, accommodation, and other special expenses related to the appointment of the foreign arbitrator.

• 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.

• Journal of Arbitration Studies
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• v.8 no.1
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• pp.35-54
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• 1998

In recent years, there has been a significant increase in the number of large-scale projects involving construction, public works and the installation of industrial plants. These projects usually require the participation of a number of public and private entities and involve more than one contract. When disputes arising in connection with these projects are to be submitted to commercial arbitration, the parties often wish to have all disputes decided by one arbitral tribunal, in a single comprehensive proceeding. It has become apparent that the resolution of all major disputes which may arise in connection with such a project in a single comprehensive arbitration proceeding presents a number of advantages. The arbitral institution can provide for a multiparty arbitration proceeding only where all of the parties have agreed to it either at the time the disputes arise or at the time the parties enter into their various contractual arrangement. The discussion about multiparty arbitration centers on the question whether courts should have the power to order the consolidation of arbitration proceedings absent the consent of the parties. As the U.S. Supreme Court has repeatedly denied certiorari to cases presenting the consolidation-question, the conflict between the Court of Appeals' positions remains. The common method of selection in a bilaterial proceeding is the formula by which each party appoints one arbitrator and the two party-chosen arbitrators then mutually agree on a third, neutral arbitrator. This popular method poses, however, both a policy and practical problems In a 3-party-proceeding. It seems that the better solution is to have courts or arbitral institutions appoint all arbitrators for a multiparty proceeding. American courts have employed a variety of methods to appoint arbitrators for multiparty disputes in cases in which the parties had not provided for or could not agree upon a method themselves.