• 한국중재학회지:중재연구
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• 제18권2호
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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.

• 무역상무연구
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• 제76권
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• pp.49-76
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• 2017

Lex arbitri, a law that regulates arbitration procedures at arbitral seat, can be viewed as an additional procedural law. In addition, the lex arbitri refers to mandatory provision imposed by each country on arbitrators in their own territory. The reason is that the lex arbitri often relates to matters of public policy of the place of arbitration. In Korea, the LMAA terms is frequently mentioned in the shipping industry in Korea, and the LMAA terms clause is often set up in the contract between Korean companies. However, the study of the UK Arbitration Act 1996, which regulates the LMAA arbitration, is not so much in Korea. On the other hand, Lex Arbitri, a corporation that regulates mediation procedures in arbitration, can be viewed as an additional procedure. There may also be procedures that must be followed compulsorily by the Arbitration Act of Arbitration. The reason is that Lex Arbitri seems to be related to the public policy of the arbitration. Therefore, the arbitration law of the country of arbitration seat may be the most important regulations in relation to the legality of the arbitration procedure. If the proceedings of the arbitration violate the Lex Arbitri, the arbitral award may be nullified. The purpose of this study is to analyze the arbitration theory, international arbitration and Lex Arbitri, focusing on the UK Arbitration Act 1996.

• 한국중재학회지:중재연구
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• 제11권1호
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• pp.121-143
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• 2001

Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of defined legal relationship, whether contractual or not. Arbitration has become increasingly popular in settling international and domestic commercial disputes nowadays. The importance of arbitration agreement cannot be overemphasized. It is the most reasonable way to settle commercial disputes. There are two types in arbitration agreement. one is arbitration clause, the other is submission agreement. The arbitration agreement must be made in writing, in addition, other communication instruments shall be considered as effective arbitration agreement if they are properly documented. Over the past few decades, a considerable number of studies have been conducted on the legal property of arbitration agreement in Germany and Japan. Its legal property is aspect of substantial law contract. The basis of arbitration agreement is the principle of party autonomy. The important effect of arbitration agreement is to preclude jurisdiction from national court. The respondent shall raise a plea not later than when submitting his first defense on the merits of the action. As positive effect of arbitration agreement, the court must support the conduct of arbitral proceedings and arbitrator can be appointed upon request of a party.

• 한국중재학회지:중재연구
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• 제19권2호
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• pp.95-126
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• 2009

One of the controversial issues in investor-state investment arbitration is the interpretation of "umbrella clause" that is found in most BIT and FTAs. This treaty clause requires on Contracting State of treaty to observe all investment obligations entered into with foreign investors from the other Contracting State. This clause did not receive in-depth attention until SGS v. Pakistan and SGS v. Philippines cases produced starkly different conclusions on the relations about treaty-based jurisdiction and contract-based jurisdiction. More recent decisions by other arbitral tribunals continue to show different approaches in their interpretation of umbrella clauses. Following the SGS v. Philippines decision, some recent decisions understand that all contracts are covered by umbrella clause, for example, in Siemens A.G. v. Argentina, LG&E Energy Corp. v. Argentina, Sempra Energy Int'l v. Argentina and Enron Corp. V. Argentina. However, other recent decisions have found a different approach that only certain kinds of public contracts are covered by umbrella clauses, for example, in El Paso Energy Int'l Co. v. Argentina, Pan American Energy LLC v. Argentina and CMS Gas Transmission Co. v. Argentina. With relation to the exhaustion of domestic remedies, most of tribunals have the position that the contractual remedy should not affect the jurisdiction of BIT tribunal. Even some tribunals considered that there is no need to exhaust contract remedies before bringing BIT arbitration, provoking suspicion of the validity of sanctity of contract in front of treaty obligation. The decision of the Annulment Committee In CMS case in 2007 was an extraordinarily surprising one and poured oil on the debate. The Committee composed of the three respected international lawyers, Gilbert Guillaume and Nabil Elaraby, both from the ICJ, and professor James Crawford, the Rapportuer of the International Law Commission on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, observed that the arbitral tribunal made critical errors of law, however, noting that it has limited power to review and overturn the award. The position of the Committee was a direct attack on ICSID system showing as an internal recognition of ICSID itself that the current system of investor-state arbitration is problematic. States are coming to limit the scope of umbrella clauses. For example, the 2004 U.S. Model BIT detailed definition of the type of contracts for which breach of contract claims may be submitted to arbitration, to increase certainty and predictability. Latin American countries, in particular, Argentina, are feeling collectively victims of these pro-investor interpretations of the ICSID tribunals. In fact, BIT between developed and developing countries are negotiated to protect foreign investment from developing countries. This general characteristic of BIT reflects naturally on the provisions making them extremely protective for foreign investors. Naturally, developing countries seek to interpret restrictively BIT provisions, whereas developed countries try to interpret more expansively. As most of cases arising out of alleged violation of BIT are administered in the ICSID, a forum under the auspices of the World Bank, these Latin American countries have been raising the legitimacy deficit of the ICSID. The Argentine cases have been provoking many legal issues of international law, predicting crisis almost coming in actual investor-state arbitration system. Some Latin American countries, such as Bolivia, Venezuela, Ecuador, Argentina, already showed their dissatisfaction with the ICSID system considering withdrawing from it to minimize the eventual investor-state dispute. Thus the disagreement over umbrella clauses in their interpretation is becoming interpreted as an historical reflection on the continued tension between developing and developed countries on foreign investment. There is an academic and political discussion on the possible return of the Calvo Doctrine in Latin America. The paper will comment on these problems related to the interpretation of umbrella clause. The paper analyses ICSID cases involving principally Latin American countries to identify the critical legal issues arising between developing and developed countries. And the paper discusses alternatives in improving actual investor-State investment arbitration; inter alia, the introduction of an appellate system and treaty interpretation rules.

• 무역상무연구
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• 제33권
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• pp.145-164
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• 2007

The Arbitration costs provided in Article 31 consist of arbitrators' fees, arbitrators' expenses, ICC administrative expenses, expenses of experts appointed by the Arbitral Tribunal, and parties' costs. Among them the first three items are independently determined by the Court in accordance with the Scale, while another two items are determined by the arbitrator and each party. The three items determined by the Court are communicated by Secretariat to the Arbitral Tribunal for inclusion in the award following the approval of the draft submitted to the Court. Also the final award may decide which of the parties shall bear them or in what proportion they shall be borne by the parties. According to Article 31(3), the arbitrators have complete jurisdiction or discretion to allocate the costs. Three common approaches are as follows; First, all of the costs are borne by the losing party. Second, all of the costs are allocated in proportion to the outcome of the case. Third, all of the costs determined by the Courts are shared equally by the parties and both parties bear their own costs. But, both parties may include intentions in accordance with the principle of party autonomy. For example, if the parties wish to ensure that the arbitration costs be shared equally and that the arbitrator make no allocation of costs or fees, the following sentence could be added to the arbitration clause in their contract. "All costs and expenses of the arbitrators [and the arbitral institution] shall be borne by the parties equally; each party shall bear the costs and expenses, including attorneys' fees, of its own counsel, experts, witness and preparation and presentation of its case" And also, if the parties wish expressly to link any allocation of costs, and fees to the result of the award the following could be added to the arbitration clauses. "The arbitrators may award to the prevailing party, if any, as determined by the arbitrators, its costs and expenses, including attorneys' fees"

• 한국중재학회지:중재연구
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• 제26권1호
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• pp.3-27
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• 2016

There is a need for disputes in sports to be settled by arbitration rather than a court ruling, taking the unique characteristics of sports into consideration. Arbitration is a form of alternative dispute resolution (ADR). A dispute resolution system is regarded as: an arbitrator is selected by the agreement between the parties, and a binding decision is made, which the parties obey, consequently resulting in a final resolution. To resolve a dispute upon arbitration, there must be an arbitration agreement upon the free will of the parties. In relation to the arbitration agreement, however, there are some cases in which sports organizations have an arbitration clause in the articles of association, regulations or player registration application that call for settling disputes by arbitration. In such cases, the validity of the arbitration agreement may create doubt whether or not this sort of arbitration has been made by mutual agreement. Consequently this is required to be legally examined. The activities of a sports organization are recognized as part of private autonomy, and they include even the rights that establish regulations or rules. Nonetheless, the powers that such sport organizations are able to establish are not allowed without limit. However, sports activities and autonomy shall be protected as themselves. Therefore, if we give priority to arbitration upon the independent arbitrator and fair process by establishing an independent arbitral organization in charge of sports disputes to handle the effective resolution of disputes and protect sports autonomy and ask for a court decision if one party disobeys the arbitration, or the sports arbitration prepositive principle, it seems helpful to resolve the unfairness of compulsory jurisdiction and the clause for sports arbitration and protect the player's right of choice and of claims for trial.

• 한국중재학회지:중재연구
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• 제14권2호
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• pp.173-198
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• 2004

Recently in Korea, franchise system has been specially used in the distribution industry. However, it also brought up many problems caused by various issues between franchisor and franchisee. The purpose of this article is to review recent trend of the franchise transaction contracts and resolution of the disputes in Korea. And to expand to use of ADR(Alternative Dispute Resolution) system as a practical dispute settlement procedure including mediation and arbitration. Arbitration means a procedure to settle any dispute in private laws, not by the adjudication of a court, but by the award of an arbitrator or arbitrators, as agreed by the parties. Arbitration agreement is a prerequisite for either party to a dispute to commence arbitral proceeding and may be in the form of a separate agreement or in the form of an arbitration clause in a contract and shall be in writing.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.87-122
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• 1998

This study reports on the Arbitration system in the China International Economic and Trade Arbitration commission (CIETAC) and the International Arbitration problems of Korea and China. The Chines laws including Arbitration laws are influenced by the civil Code system Particulary the German system. China is contracting state of the U N Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958 New York Convention), which became effective in the China April 22, 1987. International Commercial Arbitration is popular in China. CIETAC is the sole International Commercial Arbitration body in China. CIETAC has two sub-commissions, on is shen zhem S E Z and the other in shanghai. The CIETAC rules, are similar to the rules in effect in Countries using a civil Code system. Both an agreement to submit an existing dispute to Arbitration and an Arbitration clause in a contract relating to future disputes are recognizeal as valiad Arbitration agreements. CIETAC has the power to make a decision on disputes concering the validity of the Arbitration agreements, or jurisdiction over a specicific case.

• 한국중재학회지:중재연구
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• 제25권3호
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• pp.3-31
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• 2015

This paper sets out a multi-dimensional approach that parties drafting a "hybrid clause" for their arbitration agreement can adopt, for purposes of maximizing enforceability, taking into account the multi-jurisdictional interplay between the seat Court, the governing law and the enforcement Court(s), as well as mandatory rules that can be present in the lex arbitrii, the governing law, and/or the law of the enforcement for a. This paper draws on both the co-authors' practice experience, as well as first principles of party autonomy in light of mandatory rules, based predominantly on the scholarship of Briggs and Nygh.

• 무역상무연구
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• 제54권
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• pp.145-166
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• 2012

This article examines the limitations of the choice of law caused by Internationally Mandatory Rules in Entering into the Turn-Key Contracts. In June 2007, Clough Engineering, a corporation based in Western Australia, approached the Federal Court of Australia seeking injunctive relief and leave to commence proceedings against an entity located outside Australia, the Oil & Natural Gas Corp of India (ONGC). Clough had contracted with ONGC to provide a range of services in relation to the construction of gas and oil wells off the coast of India. The contract was governed by Indian law, and included a clause by which the parties agreed to submit their disputes to arbitration. Yet the Federal Court assumed jurisdiction over the dispute, principally because Clough had framed its claim as a plea for relief for contraventions of Australia's Trade Practices Act 1974. The result of this cases that it is possible for an arbitral tribunal to hear a claim made under the Trade Practices Act even if that claim arises "in connection with"a contract the proper law of which is not the law of Australia. However, in Transfield Philippines Inc v Pacific Hydro Ltd, the turnkey contract included a choice of law provision, selecting the law of the Philippines, and a clause providing that all disputes arising out of or in connection with the agreement were to be arbitrated under the ICC Rules, with the seat in Singapore. Hearings were in fact conducted in Melbourne, Australia, although all awards were published in Singapore. The result of this cases that it would not be appropriate for an Australian court to adjudicate claims for misrepresentation under Australian statutes dealing with misleading and deceptive conduct, once the arbitral tribunal had determined, applying appropriate choice of law rules, that such claims are governed by the law of the Philippines. To do so would lead to a multiplicity of proceedings, usurp the jurisdiction of the tribunal and deny the intention of the parties as expressed by them in the arbitration agreement. In short, the Internationally Mandatory Rules as an active part of public order create limitation of party autonomy in choice of law rules in a different way. The court is fully entitled to refuse to use those rules of law applicable on the contract which are in the contradiction to the internationally mandatory rules of law of the forum. And the court may give an effect to those Internationally Mandatory Rules that form a part of a law of foreign country when deciding about applicability of certain rules of applicable law.