• 한국중재학회지:중재연구
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• 제27권3호
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• pp.53-76
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• 2017

Korean businesses, and their legal representatives, have observed the improvements of enforcement of commercial judgments through arbitration over traditional collections litigation in U.S. Courts-due to quicker proceedings, exceptional cost savings and more predictable outcomes-in attaching assets within U.S. jurisdictions. But how are the 2016 interim measures implemented by the Arbitration Act of Korea utilized to avoid jurisdictional and procedure pitfalls of enforcement proceedings in the Federal Courts of the United States? Authors examine the necessary prerequisites of the U.S. Federal Arbitration Act as adopted through the New York Convention, to which Korea and the U.S. are signatories, as distinguished from the Panama Convention. Five common U.S. arbitration institutions address U.S. "domestic" disputes, preempting U.S. state law arbitrations, while this article focuses on U.S. enforcement of "international" arbitration awards. Seeking U.S. recognition and enforcement of Korean arbitral awards necessitates avoiding common defenses involving due process, public policy or documentary formality challenges. Provisional and conservatory injunctive relief measures are explored. A variety of U.S. cases involving Korean litigants are examined to illustrate the legal challenges involving non?domestic arbitral awards, foreign arbitral awards and injunctive relief. Suggestions aimed toward further research are focused on typical Korean business needs such as motions to confirm foreign arbitration awards, enforce such awards or motions to compel arbitration.

• 한국중재학회지:중재연구
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• 제31권3호
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• pp.3-23
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• 2021

England is a significant base for international trade in Europe, and dispute resolution through arbitration is active. Therefore, due to the geographical relationship with the European continent, the settlement of trade transactions and disputes with European countries is one of the most essential tasks. In this regard, arbitration procedures in England have been actively used for a long time. In England, dispute resolution methods through arbitration have been developed centered on merchant groups such as guilds from the 16th century and have been actively used until today. However, the arbitration procedure also had the characteristics of the common law because there was no legislation related to arbitration. Therefore, arbitration based on common law was carried out until the first half of the 19th century. In the 'Arbitration Act 1889', two types of arbitration systems, 'common law arbitration' and 'statutory arbitration' coexisted. However, in the arbitration procedure, according to the newly enacted 'Arbitration Act 1889', the arbitration agreement was binding from the time the arbitration agreement was reached. There was a way to select an arbitrator even if it was not explicitly stipulated in the arbitration agreement, and the arbitration award was quickly enforced. Arbitration under contract was preferred over common law arbitration, where withdrawal and revocation of awards were possible. However, in response to these provisions, the England courts considered the arbitration system to deprive the courts of jurisdiction, while a strengthened judicial review of arbitration procedures was done. In particular, England unified the arbitration-related laws, which had been scattered for a long time, adopted the model law, and enacted the 'Arbitration Act 1996'. Under the recognition and enforcement of arbitral awards in 'Arbitration Act 1996', Section 66 deals with the recognition and enforcement of arbitral awards and foreign arbitral awards. Section 2 of the 'Arbitration Act 1950' is inherited and used as it is. Second, it deals with the execution of arbitral awards under the New York Convention: Article 100 (New York Convention), Section 101 (Approval and Enforcement of Awards), Section 102 (Evidence Presented by a Party Seeking Recognition and Enforcement), and Section 103 (Provides Matters Concerning Rejection Recognition and Enforcement).

• 한국중재학회지:중재연구
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• 제18권3호
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• pp.3-22
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• 2008

The purpose of this article is to make research on the meaning and function of the place of arbitration for, the international commercial arbitration. For this purpose is to analyse regal issue the meaning and function of the place of arbitration on the international commercial arbitration relating to the arbitration law and the recognition and enforcement of foreign arbitral awards. In this Article is dealt with Art. 2 para. 1 of the Korean Arbitration Act(KAA). The KAA corresponds with the connection to the place of arbitration, the internationally prevailing 'the principle of territoriality'. The place of arbitration is therefore great practical relevance, as there is not only the existing legal supplements on the arbitration procedure applies, but also in the state courts rule for the support and control of the tribunal are responsible. In this context, this article first intends the importance of the place of arbitration for determination of the applicable procedural law. Secondly, this article intends the importance of the place of arbitration for the recognition and enforcement of foreign arbitral awards under "the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards(New York Convention)". In conclusion, this article stresses, that the place of arbitration setting under Article 21 para. 1 KAA determine not only the applicable arbitration law, but also the jurisdiction of state courts in lawsuit for repeal of arbitration and qualification as a domestic or foreign arbitration award.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.71-100
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• 2007

To promote the way of resolving the increasing disputes regarding international intellectual property by arbitration, we should overcome uncertainty thwarting the dispute resolution; i.e., whether a dispute regarding intellectual property would be an arbitrable subject, whether the arbitration agreement would be valid and enforceable, and whether the arbitral award could be recognized and enforced in a foreign country. This article is intended to seek how to promote and facilitate the resolution of international disputes regarding intellectual property by arbitration. This article in Chapter II will examine the characteristics of the IP disputes first. Chapter III of this article will study arbitrability of IP disputes. Then, Chapter IV will discuss the requirements, validity, and effectiveness of arbitration agreement of international IP disputes. The author will discuss the procedure of arbitration of the international IP disputes in Chapter V, and finally the recognition and enforcement of foreign arbitral awards thereon in Chapter VI. Due to the so called 'territoriality principle' in intellectual property, the international disputes thereof confront numerous procedural setback, e.g., jurisdiction, conflict of laws, the recognition and enforcement of foreign judgments or awards. To overcome such setbacks, I propose resolution of international IP disputes by one-step arbitration procedure through widely recognizing the arbitrability of IP disputes, and utilizing unnational nature of arbitration. In addition, I propose to set up the principles as to arbitration of the international IP disputes as the American Law Institute has formulated the principles for International Intellectual Property Litigations. By setting up these principles, I am certain it will be helpful to just and prompt resolution of international IP disputes which occur more frequently these days.

• 무역상무연구
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• 제29권
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• pp.3-37
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• 2006

This writing is for the purpose of investigating the specific character and problem point of China arbitration system which has near 90 years history and overviewing the drift of system improvement which happens recently. The arbitration system of China which traditionally does not acknowledge ad hoc arbitration, unlike most of the other nations that employ The UNCITRAL model law and make it their own legislation, is restrictive to the parties concerned principle of private autonomy considerably. Also the independence of arbitration is delicate, because of a civil characteristic weakness of the arbitral institutions and the intervention of the courts on the arbitration procedure and award. The dual system of domestic and international arbitration which maintains after enforcement of 1994 arbitration law is often to be a primary factor interrupting the development of Chinese arbitration system and making it vulnerable to challenges. The system improvement demand of the recent time reflects this point and makes the arbitration system of China to a international standard rather than now, so it is a desirable direction for China to be as the member of the world economy to be globalization.

• 한국중재학회지:중재연구
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• 제15권3호
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• pp.27-54
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• 2005

In the era of globalization firms must operate all useable resources into marketing activities to survive on the unlimited competition. However, firms face many kinds of disputes with counterparts because of aggressive marketing activities. There are two ways of solving these disputes : litigation and arbitration. As compared to litigation, arbitration is more popular because of such merits as the enforcement of arbitral award in foreign countries, the single trial system, the settlement by specialists, and the confidential proceedings. This paper examines trade firms' perception on the arbitration system and the effects of the advantages of arbitration and quality of arbitrators on the outcome of arbitration. The results show that the advantages of arbitration and quality of arbitrators influenced positively on the outcome of arbitration, but influenced negatively on the closed-door of arbitration procedures and a fair procedure of arbitrator. Though this paper has several limitations, this paper may contribute to figure out the relationship between arbitration merits and quality of arbitrator and outcomes as a first empirical paper and to suggest future research method and direction.