• 한국중재학회지:중재연구
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• 제29권1호
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• pp.3-29
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• 2019

A franchise business is a business in which the owners, or "franchisors," sell the rights to their business logo, name, and model to third party retail outlets, owned by independent, third party operators, called "franchisees." There are a number of features in franchising or terms in franchise agreements that may lead to disputes between franchisors and franchisees. These disputes may arise because of underlying risks in the franchise relationship, franchise agreement, or conduct of the parties. In this case, ADR is an effective way to resolve disputes in a quicker and often less costly way than having to go to court. If an agreement cannot be reached through mediation, then arbitration becomes the next step to resolving the differences. Whereas mediation is non-binding and focused on facilitating the parties to find a resolution that is acceptable to both, arbitration is binding and may result in a decision that is not acceptable to one of the parties. These situations can be resolved through experienced arbitration as arbitration allows franchisees to settle matters promptly and outside of the public eye. In addition, franchise dispute arbitration is usually less costly than going to traditional court. Considering all of these, reaching an agreement will also have typical clauses that address the issue of dispute resolution. It is again a more efficient process than going through the legal process and courts and is often less costly. By going through arbitration, the parties agree to give up their rights to pursue the dispute in the courts. However, there is a problem that the arbitration prior to the agreement and under the terms would be contrary to the restriction of jurisdiction under the "ACT ON THE REGULATION OF TERMS AND CONDITIONS" in Korea.

• 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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• 제30권4호
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• pp.51-70
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• 2020

The Mediation-Arbitration hybrid is becoming more popular since it makes an amicable relationship and thorough statement possible. The Mediation-Arbitration hybrid has been used to take advantage of both dispute resolution methods. In a Med-Arb process, negotiating a resolution to disputes is attempted with a mediator's help. If the mediation ends in an impasse or issues remain unresolved, parties can move on to arbitration. Med-Arb can also be cost-effective when disputants hire one person to serve as mediator and arbitrator (Med-Arb-Pure). However, it can disturb the fairness and neutrality of arbitrators, and awards can be annulled. Indeed, "Award by Consent" is different from the "Med-Arb-Pure" process. Arbitrators easily confuse them. Only the parties settle on the arbitral proceedings' course, and the arbitrator can help them (award by consent). The role and skill of a mediator are different from an arbitrator's. Disputants have the right to use a mediator who specializes in mediation. Moreover, mediation communication confidentiality is the essential value of mediation, and this should be protected. Therefore, in the process of "Med-Arb," separation between mediating and arbitrating is a better choice to specialize in each expertise. In this process, "Med-Arb" can be an affordable, expeditious, proper, and effective method of resolving international commercial disputes and continuing ADR prime time.

• 한국중재학회지:중재연구
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• 제14권2호
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• pp.107-133
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• 2004

In these days, arbitration helps alleviate some of the burden of a heavy caseload from the judiciary and is a viable method to resolve disputes in a relatively quick and efficient manner. An award of punitive damages is often the most significant and detrimental part of an award arising from a judicial or arbitral proceeding. In 1995, the United States Supreme Court resolved a circuit split. upholding an arbitral panel's authority to award punitive damages under a securities arbitration agreement. This decision was monumental in establishing arbitral power. However, it left several questions unanswered. For example, which, if any, standards should be applied to such awards？ The decision in Sawtelle, adopting a separate ground for review of punitive damages awards, is one that signals a significant change in the field of arbitration. This article addresses the reviewability of punitive damages awards arising out of a securities arbitration hearing. It would be necessary to introduce securities arbitration system to our disputes resolution system. Compared to American practices, there could be many differences in recognition on arbitration and legal structure in our country. Thus it will be a future assignment to consider seriously and carefully what kind of securities arbitration system will be proper for us. This article analyzed predispute arbitration agreements and agreements to arbitrate after a dispute has already arisen.

• 대한전자공학회논문지TC
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• 제41권10호
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• pp.35-43
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• 2004

동시에 전송을 시도할 수 있는 다수의 비콘(전송장치)과 별도의 리스너(수신장치)로 구성되는 측위시스템에서 비콘들의 전송 간에 충돌이 발생할 경우, 그 충돌을 분해하여 비콘들 간 전송을 중재하는 기법을 제안한다. 이 기법을 이용하면, 2개 이상의 비콘이 동시에 전송을 시도하여도 전송 중에 자체적으로 전송의 우선순위가 결정되도록 하여, 동시에 전송을 시도한 비콘 중 하나만이 전송을 계속하도록 하고, 나머지 비콘들은 도중에 스스로 포기할 수 있도록 한다. 이렇게 하므로써 비콘들의 전송이 충돌했을 때 모든 비콘의 전송이 실패하는 것을 피하고, 패널 이용율을 향상시킴으로써 측위시스템의 위치 갱신율 (또는 정보 갱신율)을 향상시킬 수 있다. 또한 한 번 전송에 성공한 비콘은 낮은 우선순위를 부여하고, 중재 과정에서 전송을 포기한 비콘은 높은 우선순위를 부여하므로써 모든 비콘들에게 공평한 전송기회를 보장하도록 한다. 또한 비콘들 간에 어떠한 중앙집중적인 제어가 존재하지 않으므로, 시스템의 설치와 확장이 용이하게 이루어질 수 있다.

• 통상정보연구
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• 제5권1호
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• pp.137-158
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• 2003

The rapid growth of electronic commerce increases the potential for conflicts over contracts which have been entered into online(e.g. about price, late delivery, defects, specifications...). Using arbitration as a dispute resolution alternative is becoming increasingly popular especially in cases involving intellectual property rights and technology disputes since speed and secrecy are essential. The use of online dispute resolution(ODR) mechanisms to resolve such e-commerce conflicts is crucial for building business, consumer confidence and permitting access to justice in an online business environment. However, the use of the Internet and the World Wide Web in dispute resolution has an impact on the types of communication implied in the relevant processes(negotiation, mediation and arbitration). This paper deals with legal issues with respect to the practice of online arbitration. The paper begins with a brief introduction to the theories behind arbitration. These sections will be followed by a discussion on the specifics of online arbitration and the problems the process faces online arbitration by the legal community.

• 한국중재학회지:중재연구
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• 제28권2호
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• pp.111-135
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• 2018

As the disputes in the investment and civil/commercial sectors of China and Taiwan have increased due to active cross-strait economic exchanges, the Chinese government is addressing cross-strait disputes through various dispute resolution methods. In recent years, the Arbitration Center Across the Straits (ACAS) has been established to resolve disputes between cross-strait parties, while ACAS Arbitration Rules have been enacted and enforced. ACAS Arbitration Rules are prepared by referring to the Arbitration Act of China and Taiwan, the relevant provisions and practices of the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules and the cross-strait practical affairs of the China International Economic and Trade Arbitration Commission, and the cross-strait practical affairs giving consideration to the specificity of the cross-strait relationship and the characteristics of economic and trade disputes. Therefore, this paper has compared the features and main contents of the ACAS Arbitration Rules with those of the CIETAC Arbitration Rules. This refers to arbitration proceedings such as form and effect of arbitration agreement, decision of place of arbitration, and organization of arbitral tribunal; the provision of consolidation of multiple contracts and arbitration, and the provision of joinder of arbitration parties, which are implementing the "principle of party autonomy" with streamlining arbitration proceedings and reducing costs; "common, simple, and small sum arbitration proceedings which require shorter arbitration proceedings depending on the size of the arbitration object; and regulations on the "interconnection of mediation and conciliation" which is characteristic of China's arbitration system. Based on the above-mentioned main contents of the ACAS Arbitration Rules in China, there are some implications to be considered in the establishment of the Arbitration Rules of the South-North Commercial Arbitration Commission which will be applied to solve commercial and investment disputes arising from the Inter-Korean Economic Cooperation process, suggesting implications such as the need for the rapid composition and operation of the South-North Commercial Arbitration Commission, requirements for selecting arbitrators, expansion of the object of arbitration, specification of concreteness in deciding the place of arbitration, need to create a variety of arbitration proceedings, and application plan of the International Center for Settlement of Investment Dispute (ICSID) or Third Power Arbitration Agency.

• 한국중재학회지:중재연구
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• 제18권2호
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• pp.33-54
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• 2008

The KCAB enacted their new international arbitration rules(the KCAB rules) in 2007 wheres The CIETAC revised their arbitration rules(the CIETAC new rules) in 2005. This article investigates some practical problems on both rules respectively and helps trading companies to proceed arbitration by these rules. This study finds some problems as follows. There are the following problems in KCAB rules. First, application fee is too expensive fee. So KCAB should cut down their application fee. Second, if there is no agreement on number of arbitrators, the arbitration is processed by sole arbitrator. But it is very difficult for sole arbitrator to process international arbitration due to characteristics of international arbitration such as complexity of case and a large sum of claim. Third, a period of selection of arbitrator is long. In view of developing of communication means, this period is needed more short. In the meantimes, there are the following problems in CIETAC rules. First, though the CIETAC new rules enlarges the right of parties autonomy such as selection of arbitration rules or revise of it, China arbitration Act stipulates a institute arbitration which restrict partie's autonomy. Second, if there is no agreement on arbitrators, the CIETAC appoints chair of tribural in three arbitrators ion or sole arbitrators. is processed by sole arbitrator. Third, a draft of arbitral award is checked by the CIETAC in advance. Especially, the two latter problems is possible for foreigners to have doubts of fairness of CIETAC arbitration. Becuase the CIETAC is not a complete independent private institution. Consequently, I suggest that Korean trading companies should examine problems of these two arbitration rules carefully, and select a most appropriate rules for settlement of their disputes with Chines companies.

• 한국중재학회지:중재연구
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• 제24권2호
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• pp.161-181
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• 2014

This thesis, which mainly focuses on the characteristics of the Chinese arbitration system, will mainly deal with three characteristics and analyze the causes that directly or indirectly influence them. The first characteristic is China does not recognize ad hoc arbitration. Ad hoc arbitration is the initial form of arbitration, and it occupies an important position in many countries; however, China's judicial system does not recognize it. There are many disadvantages for building a system of ad hoc arbitration in China; i. e., the arbitration system in China is undeveloped and shot-time established, and it lacks social and civil society basis, along with a credit system, which the Western ad hoc arbitration relies on. The second characteristic is the existence of excessive judicial supervision and control over arbitration in China. Judicial supervision over arbitration has been the customary practice in each country of the modern world, but sharp variation exists in the legal stipulations and the courts' attitude toward the standard to be applied in the supervision over arbitration. In China, there has always been a controversy over judicial supervision, and the standards applied in the supervision over arbitration by courts in different regions are less than identical. The last characteristic is the existence of a combination of mediation with arbitration, which is called Arb-Med in China. Such means that in the process of arbitration, the arbitrator may conduct mediation proceedings for the case it is handling if both parties agree to do so. Under the Chinese law, Arb-Med may lead to a binding and enforceable outcome. However, it has several legal disadvantages and almost no country adopts this system. China still insists that this system will go on because Arb-Med was first made in China, and its effect was proven through long-time practice in CIETAC.

• 한국중재학회지:중재연구
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• 제18권1호
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• pp.97-119
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• 2008

The reluctance of Latin American countries to practice international arbitration is not a new topic in international law. This reluctance historically based on Calvo Doctrine provoked not only the absence of Latin American countries from the major international commercial arbitration conventions, but obsolete national arbitration legislation. Recently, however, these countries have undertaken major steps showing that the region is no longer reluctant to practice international commercial arbitration. Most Latin American countries have ratified the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"), the 1965 Convention on the Settlement of Investment Disputes ("Washington Convention") and the 1975 Inter-American Convention on International Commercial Arbitration ("Panama Convention"). The majority of Latin American countries have also modified and adapted their national legislation on arbitration to the UNCITRAL model law. Even judiciary has been following this pro-arbitration. This article will focus on some of these factors provoking the acceptance of international commercial arbitration in Latin America to trace the common trends and characteristics in an attempt to understand better how international arbitration set on its place firmly. For this purpose we selected five countries, Brazil, Argentina, Chile, Mexico and Venezuela, to analyse legislations and jurisprudence. Latin America is ready to challenge any obstacles to promote arbitration as alternative methods of judicial resolution. There is an ever-increasing number of international arbitration in Latin America. Both practitioners and judiciary have shown desires to promote the resolution of disputes by arbitration and used the legal instruments to ensure that process interpreting and applying legislations for pro-arbitration. Even there remains Calvo Doctrine's culture in Latin America still now, it should be certain this culture will disappear from the conduct of international arbitration.