• Journal of Arbitration Studies
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• v.17 no.3
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• pp.57-79
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• 2007

Laws regarding to Arbitration in North Korea are Arbitration Act, Foreign Economic Arbitration Act, Regulations on the Foreign Trade Arbitration Commission, Regulation for treatment of cases in Arbitration Commission, Rules of Hearing. North Korea has enacted the laws related to Arbitration including Arbitration Act enacted in 1995 and Foreign Economic Arbitration Act enacted in 1999. In the North Korea's planed economy system, as there will be many disputes among organizations, companies, other Institutions Arbitration Act resolves the disputes to compete the economic plan. North Korea's Arbitration Act is different from Normal Arbitration Acts in particular other socialist states in view of arbitration agreement and selection of arbitrator and functions as the tools controlling the members of North Korea and have the characteristics such as national arbitration system and mixture of criminal trial and governmental control and strict legal control system on violent acts in North Korea's plan and plan regulation. And North Korea's Arbitration Act deals with the civil disputes and limits the parties and subject matter of arbitration. The parties in dispute such as organizations, companies, other Institutions could apply for arbitration to Central Arbitration Body and Provincial (City under the direct control of Government) Arbitration Body and Sectional Arbitration Body. The purpose of this paper is to contribute to the enhancement of the understanding arbitration in North Korea by studying the clauses in the Arbitration Act.

• Journal of Arbitration Studies
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• v.30 no.2
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• pp.91-120
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• 2020

The Scope of Application of North Korea's Foreign Economic Arbitration Act and Foreign Investment Act This article examines whether the Foreign Economic Arbitration Act and the Foreign Investment Act of North Korea apply to South Korean parties or companies. This article analyzes laws and agreements related to economic cooperation between South Korea and North Korea. Furthermore, this article compares and evaluates laws related to foreign investment and enacted in North Korea. Now, North Korea's door is closed due to economic sanctions against it, but it will be opened soon. Thus, this article prepares for the future opening of North Korea's markets. Is there a rule of laws in North Korea or just a ruler? Are there laws in North Korea? North Korea has enacted a number of legislation to attract foreign investors, referring to those Chinese laws. For example, North Korea enacted the Foreigner Investment Act, the Foreigner Company Act, the Foreign Investment Bank Act, the Foreign Economic Arbitration Act, the Foreign Economic Contract Act, the International Trade Act, and the Free Economy and Trade Zone Act, among others. Article 2 (2) of the Foreign Investment Law of North Korea states, "Foreign investors are corporations and individuals from other countries investing in our country." It is interpreted that South Korea is not included in the "other countries" of this definition. According to many mutual agreements signed by South Korea and North Korea, the relationship between the two Koreas is a special relation inside the Korean ethnic group. An arbitration between a South Korean party and a North Korean party has the characteristics of both domestic arbitrations and international arbitrations. If the South Korea and North Korea Commercial Arbitration Commission or the Kaesong Industrial Complex Arbitration Commission is not established, the possibility of arbitration by the Chosun International Trade Arbitration Commission, established under North Korea's Foreign Economic Arbitration Act, should be examined. There have been no cases where the Foreign Economic Arbitration Act is applied to disputes between parties of South Korea and North Korea. It might be possible to apply the Foreign Economic Arbitration Act by recognizing the "foreign factor" of a dispute between the South Korean party and North Korean party. It is necessary to raise legislative clarifications by revising the North Korea's Foreign Economic Arbitration Act as to whether Korean parties or companies are included in the scope of this Act's application. Even if it is interpreted that South Korean parties or companies are not included in the scope of North Korea's Foreign Economic Arbitration Act, disputes between South Korean companies and North Korean companies can be resolved by foreign arbitration institutes such as CIETAC in China, HKIAC in Hong Kong, or SIAC in Singapore. Such arbitration awards could be enforced in North Korea pursuant to Article 64 of North Korea's Foreign Economic Arbitration Act. This is because the arbitration awards of foreign arbitration institutes are included in the scope of North Korea's Foreign Economic Arbitration Act. The matter is how to enforce the North Korean laws when a North Korean party or North Korean government does not abide by the laws or their contracts. It is essential for North Korea to join the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and the ICSID Convention (Convention on the Settlement of Investment Disputes Between States and Nationals of Other States).

• Journal of Arbitration Studies
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• v.28 no.4
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• pp.3-42
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• 2018

This paper aims to explore ways to develop the arbitration industry in Korea. The prospects for the promotion of the arbitration industry in Korea are never dim. International arbitration competitiveness is somewhat lower than its competitors at present, but the international economic base to support it is solid, and the domestic arbitration environment seems to be sufficient to support the development possibility of arbitration. Since geographical and economic factors have already been defined, Korea must at least improve the arbitration act with passion and vision for the best one. The arbitration act that is the most accessible to arbitration consumers is the best arbitration act. The important thing is to have an arbitration act that makes people want to use more than litigation or other dispute resolution procedures. There is no hope of remaining as a "second mover" in the field of arbitration law. One should have a will and ambition to become a "first mover" even if it is risky. Considering the situation of the current arbitration law, it is necessary to start an arbitration appeal system in order to become a consumer-friendly arbitration law, and it is necessary to examine ways of integrating the grant of execution clause and enforcement application procedures. The abolition of the condition of Article 35 of the Arbitration Act, which rules the validity of the arbitration award, will help promote international arbitration. Exclusion agreements of setting aside against arbitration awards must also be fully recognized. It is also important to publish a widely cited international arbitration journal. In order to respond to the fourth industrial revolution era, it is necessary to support the establishment of a dispute resolution system that utilizes IT technology. In order to actively engage the arbitrators in the market, it is necessary to abolish the regulations that exist in the Attorneys-at-Law Act. There is also a need to allocate more budget to educate arbitration consumers and to establish arbitration training centers to strengthen domestic arbitration education. It is also necessary to evaluate and verify the Arbitration Promotion Act so that it can achieve results. In the international arbitration market, competition is fierce and competitors are already taking the initiative, so in order not to miss the timing, Korea needs to activate international arbitration first. In order to activate international arbitration, the arbitration body needs to be managed with the same mobility and strategy as the agency in the marketplace. In Korea, unlike in Singapore and Hong Kong, it is necessary to recognize that the size of the domestic arbitration market is very likely to increase sharply due to the economic size of the country and the large market potential it can bring from litigation. In order to promote the arbitration industry, what is most important is to make arbitration activities in accordance with the principles of the market and to establish an institutional basis to enable competition. It is urgently required to change the perception of the relevant government departments and arbitration officials.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.76
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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.

• Journal of Arbitration Studies
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• v.26 no.2
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• pp.115-134
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• 2016

Arbitration is a consensual process in which a dispute is resolved by an impartial arbitrator outside the courts. Arbitration is flexible, neutral, time- and cost-efficient, and confidential. In 1985, the United Nations Commission on International Trade Law(UNCITRAL) enacted the UNCITRAL Model Law on International Commercial Arbitration to help countries reform and modernize their arbitration laws. In 1999, South Korea adopted the model law. Later in 2006, UNCITRAL amended the model law to promote international arbitration. The amended model law includes, among other things, specific provisions regarding interim measures. In 2016, in order to adopt the newly amended version of the model law, South Korea revised its Arbitration Act. The revised act includes a more comprehensive legal regime regarding interim measures, including definitions, types, processes, requirements, the court's recognition and enforcement, and liability. This paper examines the revision of the Arbitration Act of Korea and its legislative intent, presents the problems, and offers recommendations for resolving the problems.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.259-277
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• 2011

In 2008, North Korea revised its Foreign Economic Arbitration Act. To some extent, the new Act reflected such international standard of arbitration as UNCITRAL Arbitration Rules. In this paper, the said Act will be evaluated, and then cooperation ways of South-North Korea on Inter-Korean Commercial Arbitration will be suggested. In 2007, the Ministry of Unification has designated the Korean Commercial Arbitration Board as Inter-Korean Arbitration Committee and has made efforts to prepare follow-up measures on the two Agreements of Inter-Korean Commercial Arbitration. In 2008 however, the follow-up measures has in fact been suspended. In order to revitalize the Inter-Korean commercial arbitration, some prerequisites must be satisfied. First, Inter-Korean Arbitration Committee for Inter-Korean commercial arbitration should re-open as soon as possible. Second, as North Korea recently shows interest in joining the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards(now so called New York Convention), Governmental Authority of Rep. of Korea should also actively assist and support their joining in New York Convention. Third, both Korean governments should carry out joint study on raising the efficiency of the arbitration system which they will use. Fourth, comparative study on arbitration systems used in both countries should be conducted. Also, it may is very timely to discuss the issue in international arbitration community such as "North-East Asia International Arbitration Conference" or other similar events. In conclusion, continuous study on prevention of commercial disputes between South-North Korea and ways to resolve disputes when they arise should be conducted.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.71-92
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• 2012

The significant increase in international trade over the last few decades has been accompanied by an increase in the number of commercial disputes between Korea and India. Understanding the Indian dispute resolution system, including arbitration, is necessary for successful business operation with Indian companies. This article investigates characteristics of India's Arbitration and Conciliation Act in order to help then traders who enter into business with Indian companies to settle their disputes efficiently. The Arbitration and Conciliation Act(1996) based on the 1985 UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976, has a number of characteristics including the following: (i) this act covers ad hoc arbitration and institutional arbitration (ii) parties to the arbitration agreement have no option except arbitration in case of any dispute (iii) the parties can choose their own laws, places, procedures, and arbitrators (iv) the decision of the arbitrators is final and binding (v)role of the court has been minimized and (vi) enforcement of foreign awards is recognized. However, there have been some court decisions that have not been in tune with the spirit and provisions of the Act. Therefore, Korean companies insert the KCAB's standard arbitration clause into their contracts and use India's ADR(Alternative Dispute Resolution) Methods to strategically resolve their disputes. Additionally, Korean companies investigate Indian companies' credit standing before entering into business relations with them.

• Journal of Arbitration Studies
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• v.25 no.1
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• pp.47-64
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• 2015

Pursuant to Article 109(1) of the Attorney-at-Law Act of Korea, a person, not an attorney-at-law, who receives or promises to receive money, articles, entertainment or other benefits or who gives or promises to give those things to a third party, in compensation for providing or mediating legal services, such as examination, representation, arbitration(emphasis added), settlement, solicitation, legal consultation, making of legal documents, etc. shall be punished by imprisonment with prison labor for not more than 7 years or by a fine not exceeding KRW 50 million or may be punished by both and there is no specific provision on qualification of arbitrator except on nationality of an arbitrator in the Arbitration Act of Korea. Then, the question arises, can any non-lawyer arbitrator who receives arbitrator's fees be punished in accordance with the Attorney-at-Law Act in Korea? To search for an answer for this matter, this paper examines the Arbitration Act or the Civil Procedure Code of 33 major countries in the world and explains a research on the participation ratio of non-lawyer arbitrators in all 360 arbitration cases registered in 2012 at the Korean Commercial Arbitration Board (KCAB).

• Journal of Arbitration Studies
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• v.24 no.3
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• pp.125-169
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• 2014

In France, arbitration, both domestic and international, has recently been subjected to a major reform. This article discusses the content of the 2011 reform and its aftermath, while putting into perspective the current arbitration act in South Korea, an arbitration-friendly jurisdiction that contemplates reforming its own law. The two legal systems are characterized by their concern for efficiency and rationalization of the arbitration proceedings, through the codification of essential principles previously established by case law and through the promotion of the independence of this ADR vis-$\grave{a}$-vis state courts. The efficiency consideration is strengthened at every stage of the proceedings: from the arbitration agreement often considered valid and rarely challenged, through the proceedings for annulment, recognition and enforcement of the award, up to the judicial assistance of the French supporting judge towards the actual arbitral proceedings. Finally, new concerns are emerging: the increase of transparency and the arbitrability of disputes in some uncertain fields of law.

• Journal of Arbitration Studies
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• v.32 no.2
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• pp.55-83
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• 2022

The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Mediation Convention) results in new challenges to the area of international dispute resolution by providing the enforcement regime for mediated settlement agreements, which have not been admitted as enforceable in some civil law countries, including Korea and Japan. Japan has struggled to promote international arbitration and international mediation, and such efforts were accelerated by the adoption of the Singapore Mediation Convention in 2018. In order to standardize arbitration proceedings and promote the practice of international arbitration, Japan produced two noticeable results: the new JCAA Arbitration Rules and the amendment to the Arbitration Act of Japan. In addition to that Expedited arbitration procedure and Interactive Arbitration Rules of JCAA present the new possibility of international arbitration procedure for civil law practitioners, the amendment to the Arbitration Act of Japan suggests significant implications to Korea for its manifest provisions regarding enforcement requirements and proceedings and its protection of Access to Justice for foreign law practitioners.