• Journal of Arbitration Studies
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• v.22 no.1
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• pp.3-22
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• 2012

The Korean Commercial Arbitration Board ("KCAB") recently amended its 'International Arbitration Rules' and the 'Arbitration Rules', which became effective on September 1, 2011. Under the amendment, the 'Arbitration Rules' will be referred to as the 'Domestic Arbitration Rules' and in principle apply only to domestic arbitration cases. Accordingly, the amendment removed all of the provisions relating to international arbitration cases. In addition, under the amendment, the 'International Arbitration Rules' will automatically apply to all international arbitration cases unless the parties agree otherwise. The amended 'International Arbitration Rules' establish new expedited procedures for the international arbitration cases before the KCAB. The KCAB has also instituted additional changes related to international arbitration cases including reduction in the filing and administrative fees and appointment of prominent international foreign arbitrators on its panel. The remuneration for arbitrators has also increased to bring them more in line with the fees provided by other leading international arbitration institutions. While several problems remain, these most recent revisions must be seen as a step in the right direction for the KCAB.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.243-279
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• 2004

The construction arbitration field has developed considerably since the latter half of the 1990s. Through analysis of construction arbitration cases taken up by KCAB, this paper intends to show the present condition and the improvement direction of construction arbitration in Korea. The number of construction arbitration cases filed at KCAB has been increasing rapidly after 1997, but recently the rate of increase has tended to decline. From 2000 to 2003 the number of arbitration cases increased 23％ each year, on average, but in 2003 the increase was only 7.6％. In the very beginning, public construction claims made up the majority of all construction cases, however, civil construction claims are increasing gradually. The arbitration amount in the construction field is very high, owing to public construction claims. For example, the arbitration amount per case was 5 billion won, on average,. in the public construction field. It is shown that the claimants of arbitration are mostly constructors and the main reasons for making claims are to demand payment for construction and payment for additional work. KCAB investigated the performance status of arbitration awards. The voluntary performance rate for awards in construction arbitration is nearly 80％ and in 11％, a suit was filed to appeal the arbitration award. In spite of the development of construction arbitration, some improvements are requested. There have been arguments about the effectiveness of selective arbitration agreement in the General Terms of Construction Contract. This has caused a decrease in arbitration cases, so improvements in this dispute settlement clause need to be made. Enforcement of arbitration awards is granted by the judgment of a court. Resulting from this, appeals for arbitration awards are not allowed, however, up to three appeals for the enforcement of awards are allowed in court. As such, the enforcement system for arbitration awards needs to be improved and simplified.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.19-36
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• 2017

This paper reviews and analyzes the U.S. cases and statutes on the writing requirements of arbitration agreement. In order to discuss the legal aspects of writing requirement on arbitration agreement in the U.S., it is necessary to delve into both the contractual aspects of arbitration agreement and statutory specifications of the writing requirements of arbitration agreement. Statute of frauds and parole evidence rule were reviewed and employed to find legal implications on the writing requirement of arbitration agreement. Relevant cases were analyzed to verify how the courts have been responded to the conflicts regarding the validity of the arbitration contract with respect to writing requirement. International treaties absorbed into the U.S legal system were also reviewed and commented to analyze their implications on the writing requirement of arbitration agreement, including the UNCITRAL Model Arbitration Law and the New York Convention.

• Journal of Arbitration Studies
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• v.7 no.1
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• pp.411-446
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• 1997

This paper reports the results of an experimental companson of the winning rates in arbitral awards between the Korean Commercial Arbitration Board and the Japan Commercial Arbitration Association, and analyzed the comparative advantages of KCAB in international arbitration compared with ICC. There are so many factors to analyze the level of internationalizaton and competitiveness in the arbitration. From the recent lituratures, arbitration experts reported and debated tremendous elements which is vital to have a competition in the international arbitration market. Arbitration factors such as fairness, reliability, awareness, extension, enforcement, inexpensiveness, closed and expedited proceedings, arbitrators, expert knowledge, service, arbitral award, etc. are very important to appraise the level of the globalization and competitiveness of arbitration organizations Using these factors, I appraised current level of the globalization and competitiveness of the Korean Commercial Arbitration Board, unique arbitration organization in South Korea. Next, we are able to compare the level of fairness using the concept of 'winning rate' All over the world, only several arbitration organizations published and opened their own arbitral awards even In anonymity. The Japanese arbitration institutions published it regularly as well as the Korean When compared with these two institutions' "winning rates". there is similiar tendency in favor of domestic corporations That is to say, the winning rates in domestic arbitration cases are greater than those in international arbitration cases. This embarks an implication of unequality, a part of unfairness, in these two countries' arbitration. Finally, an analysis was conducted between the statistics of KCAB and ICC, especially to the focus on the number of arbitration cases, arbitration tribunals, arbitration places, parties' nationalities. the types of contents, the amount of arbitration, arbitration costs. There are two meanings to keep in mind for advancement of Korean arbitration. One is to establish new strategy specializing in small amount arbitration less than US$200,000. The other is to rearrange the panel of arbitration, especially in increasing field of arbitration cases such as the disputes of license, technology transfer, patent, etc.

• Journal of Arbitration Studies
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• v.28 no.1
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• pp.99-123
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• 2018

Korean businesses engaging in transactions with U.S. entities are increasingly favoring arbitration clauses to address unexpected disputes. How best ought the parties' arbitration contractual terms be drafted to avoid lengthy, protracted and expensive legal disputes? Authors examine the public policy favoring arbitration through the U.S. Federal Arbitration Act. Korean litigants seeking a "Motion to Compel Arbitration" rely on arbitration clauses designed to address four factors U.S. courts use to evaluate the enforceability of arbitration contract clauses. What role does U.S. state court jurisdiction hinder or help Korean businesses contracting with U.S. business entities located within certain boundaries? What is the effect of an arbitration clause that designates the Korean Commercial Arbitration Board in Seoul to arbitrate? All cases analyzed entail Korean business entities. Eleven cases demonstrate the results of seeking motions to compel arbitration in U.S. courts. Three cases illustrate motions to compel arbitration drafted to use the Korean Commercial Arbitration Board in Seoul. The results provide Korean businesses and legal practitioners insight into addressing the specific goals of including contractual arbitration clauses to enhance their international commercial interests in the United States.

• Journal of Arbitration Studies
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• v.11 no.1
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• pp.217-245
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• 2001

Like traditional commerce, disputes are bound to arise in the course of conducting an e-commerce transaction. At present of June 30, 2001, 259 cases of dispute on e-commerce have been applied for the mediation of Electronic Transaction Dispute Mediation Committee, types of them are 170 cases of delayed delivery of commodity, 21 cases of contract cancellation and refund, 16 cases of personal information protection, 16 cases of false and exaggerated advertisement, 14 cases of commodity defect. The settlement systems of e-commerce dispute are litigation and Alternative Dispute Resolution(ADR). ADR encompasses mediation, arbitration, and similar private tools for resolving disputes. ADR offers many perceived advantages. Speed of resolution and low cost are often cited as the primary benefits. Therfore e-commerce disputes may be settled more effectively by litigation. The settlement systems of e-commerce dispute by ADR are the mediation of Electronic Transaction Dispute Mediation Committee, the mediation of Consumer Dispute Mediation Commercial Arbitration Board, and the arbitration of Korean Commerical Arbitration Board. E-commerce sets up the probability that its merchants and customers will not exist in the same legal jurisdictions. The confusing application of laws and wide geographical dispersion of these parties will necessitate a faster and cheaper dispute resolution methodology. Therefore, online ADR may be effective for e-commerce dispute resolution. The examples of online ADR opetation are the cyber mediation of Electronic Transaction Dispute Resolution Committee, the cyber mediation of Korean Commercial Arbitration Board, the cyber mediation of Click N Settle, the online ADR of BBB online, and the cyber arbitration of virtual Magistrate.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.141-163
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• 2012

In Korea, although nearly all maritime arbitration cases are dealt with by the Korean Commercial Arbitration Board (KCAB), the total number of cases that are referred to the KCAB is relatively small compared with the total number of maritime cases that occur in Korea. There may be reasons why maritime arbitration is not utilized more in Korea. However, of the above reasons, the superseding one may be that there is still a lack of confidence in the credibility and foreseeability of maritime arbitration in Korea. To expand the use of maritime arbitration in Korea, it is essential that the base surrounding maritime arbitration be expanded. In addition, it is also necessary that specialists receivetraining in maritime law. In this context, it is strongly recommended that maritime and admiralty law be taught in law schools and be included as a regular subject on the Korean bar exam. Additionally, to promote maritime arbitration, a rule should be introduced allowing for shortened arbitration proceedings in Korea. Although Chapter 8 of the KCAB Arbitration Rules provide for "Expedited Procedure," this process alone is not because the rules for Expedited Procedure generally apply in arbitration cases where both parties have agreed in a separate agreement to follow the procedures provided or in any domestic arbitration valued atless than 100,000,000 Korean won. Therefore, the KCAB Arbitration Rules for Expedited Procedure must be reformed to encompass international arbitrations. Additionally, experts who are experienced in the maritime sector should be elected as arbitrators. Given the factthat a fair number of arbitration cases can be characterized as international, it is important that businesspersons who are very fluent in English be appointed as arbitrators in order to increase the reliability of maritime arbitration in Korea and save costs. Meanwhile, because lawyers and scholars constitute a considerable portion of KCAB arbitrators, commercial persons from relevant industries should be enlisted as arbitrators. Even though there are arguments for the establishment of an independent maritime arbitration board in Korea, establishment of a separate maritime arbitration board will not directly guarantee the prosperity of maritime arbitration in Korea. Instead of instituting a new maritime arbitration board, it is better that a reorganized KCAB modify existing arbitration proceedings to make them faster and more economical if maritime arbitration is to prosper. In this regard, ad-hoc arbitration would be an option for speedy and thrifty maritime arbitration. Finally, to gain the confidence of domestic and foreign parties, we cannot ignore the importance of advertising the specialties and qualifications of the KCAB and its personnel among business entities.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.47-68
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• 2004

The problems on application for custody in CIETAC Arbitration Rule are examined in this paper. First, The issue of jurisdiction for application for custody is arisen from the expansion of material jurisdiction of CIETAC. Until 1998, CIETAC had a jurisdiction only for the cases involving foreigners, but now, it has a jurisdiction not only for the cases involving foreigners but also for domestic cases. In the cases of arbitrating disputes involving foreigners, if the parties concerned apply for the preservation of property, CITEAC shall forward the application to and obtain a ruling from an intermediate people's court in the place where the object of the application resides, or where the property is located. But in the cases of arbitrating domestic disputes, if the parties concerned apply for the preservation of property, CITEAC shall forward the application to and obtain a ruling from an ground-level people's court in the place where the object of the application resides, or where the property is located. Therefore, "People's court" in article 23 of CIETAC Arbitration Rule includes both intermediate people's court and ground-level people's court in its meaning. Second, in the cases that the party concerned submits arbitration to CIETAC, it is not permitted for the party to ask the people's court for custody of property before submitting an arbitration. But there still can be the urgent cases that interests of the party concerned are at stake, and legitimate rights and interests of the party concerned may be damaged beyond remedy, if no application for custody of property is filed immediately. In that cases, even if the party may apply for custody of property with the people's court after submitting an arbitration, it might be too late to preserve property. Therefore, Chinese laws and rules have to be revised so that the party may ask the people's court for custody of property before submitting an arbitration. When revising laws and rules, according to the today's legislation trends, it must be considered that court and arbitration tribunal both have a right to decide the custody of property. When arbitration tribunal decides it, the procedural provisions executing it must be provided. It is also required that China permit to apply preservation of evidence as well as custody of property before submitting an arbitration. It is also strongly recommended that China permit custody of property or preservation of evidence even in the cases that an arbitration is submitted to the arbitration institute which is located in foreign country, not in China.

• Journal of Arbitration Studies
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• v.30 no.2
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• pp.121-144
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• 2020

If the interim disposition of the Arbitration Tribunal is not immediately enforceable, it will only give pressure to the other party concerned and the arbitration could work against him if the other party fails to implement it. If enforcement is impossible, the disposition will have no practical effect or practical benefit. In addition, if a system is contrary to its unique characteristics or nature, it will not function as a system or it will become an unnecessary decoration. There is no room for argument that the above provisions are wrong or misinterpreted if the temporary disposition in arbitration cannot be characterized by its characteristics, such as its provisionality, urgency, incidentality, or invasibility. As attracting international arbitration cases can create enormous added value for the national economy, countries are scrambling to create a mediating-friendly legal environment in their countries, and Korea has been more active in arbitration than in the past. Despite various efforts, however, attracting international arbitration cases is still a long way off. Therefore, Korea should create a mediating-friendly, legal environment to attract arbitration cases. There are many reasons why arbitration is activated internationally, but the most important of them is that it is easier to approve and execute. The use of the approval and execution of heavy court is, in turn, the most important requirement of a mediating-friendly environment. It is natural that temporary dispositions made in arbitration should be as easy to approve and enforce as in the case of arbitration. In addition, it is natural for the parties to consider the use of approval and execution when deciding where to mediate or when applying for arbitration; thus, the degree of ease of execution, along with the procedural use of arbitration or provisional disposition, will be a measure of the likelihood of hosting international arbitration cases, as well as the activation of arbitration.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.61-86
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• 2011

Korea Supreme Court has given thirty-nine time's judgments on enforcement of Arbitral awards for thirty-six arbitration cases and made four time's decision on the arbitration cases since Korea arbitration act was enacted in 1966. Most of the arbitration cases appealed to the Supreme Court was to obtain the recognition and enforcement of arbitral awards or to set aside the arbitral awards according to the Korea arbitration Act article 36 and article 37, by reason of (a) a party to the arbitration agreement was under some incapacity under the law applicable to him or the said agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, (b) a party making the application was not given proper notice of the appointment of the arbitrator or arbitrators or of the arbitral proceedings or was otherwise unable to present his case (c) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, 5 cases of these arbitral awards were refused to obtain the enforcement of Arbitral awards and have been cancelled finally by the Supreme Court only by the New York Convention of 1958.