• Journal of Arbitration Studies
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• v.29 no.2
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• pp.133-159
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• 2019

This paper reviews 2019 new arbitration rules of Japan Commercial Arbitration Association (JCAA). JCAA has amended its Commercial Arbitration Rules, and its Administrative Rules for UNCITRAL Arbitration. Also, it has introduced a new Interactive Arbitrations Rules. These new rules take effect from 1 January 2019. First, principal amendments of JCAA Commercial Arbitration Rules are such as arbitrator impartiality, tribunal secretaries, no dissenting opinions, expedited proceedings, arbitrator fees, administrative fees. Second, JCAA's new Interactive Arbitration Rules compel communication from the arbitral tribunal to the Parties and introduce a system of fixed compensation for arbitrators. Third, JCAA's Administrative Rules for UNCITRAL Arbitration are designed to provide the minimum essentials to allow the UNCITRAL Rules to be overseen by an institution. The only significant updates focus on arbitrator remuneration. This paper presents the intent and some implications of JACC's 2019 new rules for Korean Commercial Arbitration Board (KCAB) arbitration rules. Also, it seeks to provide a meaningful discussion and improvement on the facilitating of arbitration system in Korea.

• Journal of Arbitration Studies
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• v.25 no.4
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• pp.3-23
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• 2015

The Chevron saga including Chevron/TexPet v. Ecuador, PCA Case No. 34877(hereinafter referred to as "Chevron I") and Chevron/TexPet v. Ecuador, PCA Case No. 2009-23(hereinafter referred to as "Chevron II") started out of domestic litigations between TexPet and Ecuador in the early 1990s. In Chevron I, the Tribunal decided that Article 2(7) of the U.S.-Ecuador BIT on effective means of provision was breached because of undue delays in the seven legal proceedings TexPet had brought against Ecuador in respect to contractual obligations. In Chevron II, it was contended that through the actions and inactions of the judiciary and the executive, Ecuador breached her several obligations under the BIT. Ecuador objected to the jurisdiction of the Tribunal because TexPet's investment was terminated in 1992, and because Chevron is not a party to the 1995 Settlement Agreement and 1998 Final Release. In its Interim Award on Jurisdiction and Admissibility, the Tribunal applied a prima facie standard to the facts alleged by the Claimants but denied by the Respondent, and decided that questions in respect of the Respondent's jurisdictional objections should be joined to the merits under Article 21(4) of the UNCITRAL Arbitration Rules. In the merits phase of Chevron II, the Tribunal divided the merits of the Parties' dispute into two parts, entitled "Track 1" and "Track 2". In its Partial Award on Track 1, the Tribunal decided that Chevron is a "Releasee" under the 1995 Settlement Agreement. In a decision on "Track 1B", the Tribunal decided that the Lago Agrio complaint cannot be read as pleading "exclusively" or "only" diffuse claims, and that, to this extent, the Claimants' reliance on the 1995 Settlement Agreement as a complete bar to the Lago Agrio complaint must fail, as a matter of Ecuadorian law. The Tribunal maintained the position that the Parties' disputes on both merit and jurisdiction should be reserved for Track 2. It remains to be seen how the Tribunal addresses the Claimants' allegations of multiple denials of justice under international law against the judgments of the Respondent's Courts, together with the Respondent's jurisdictional objections in Track 2 of the arbitration.

• Korea Trade Review
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• v.45 no.1
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• pp.203-219
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• 2020

The parties shall perform all actions necessary for the proper and expeditious conduct of arbitral proceedings. This includes complying without delay with any determination of the tribunal as to any and all procedural or evidential matters, or with any order or directions of the tribunal, and where appropriate, taking without delay any necessary steps to obtain a decision of the court on a preliminary question of jurisdiction or law. The parties are free to agree on the powers of the tribunal in case of a party's failure to do something necessary for the proper and expeditious conduct of the arbitration. The parties' general duty may be based on agreements, such as the duty not to ask the court for a dispute, the duty to carry out arbitral awards, and the duty of confidentiality. In this study, as a premise, after confirming the discussion related to Article 40 (general obligations of the parties) of the law, the arbitral tribunal will analyze the authority to execute it based on Article 41. As a matter of fact, in LMAA Terms 2017, the parties want to analyze what is required in order to proceed effectively.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.73-106
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• 2004

The UNCITRAL Arbitration Working Group began its deliberations on the topic of interim measures of protection at its thirty-second session (Vienna, 21-30 March 2000), when the Working Group expressed general support for a legal regime governing enforcement of interim measures of protection ordered by the arbitral tribunal. Also the Working Group took a preliminary analysis of whether there was a need for a uniform rule on court-ordered interim measures of protection in support of arbitration. The Working Group agreed, at its thirty-third session (Vienna, 20 November-1 December 2000), that the proposed new article to the UNCITRAL Model Law on International Commercial Arbitration on enforcement of interim measures of protection (tentatively numbered article 17 bis) should include an obligation on courts to enforce interim measures if prescribed conditions were met. At its thirty-fourth session (New York, 21 May-1 Jun 2001), in addition to continuing its review of draft article 17 bis, the Working Group proceeded to consider a text revising article 17 of the UNCITRAL Model Law, which defined the scope of an arbitral tribunal's power to order interim measures and included an additional provision on the granting of interim measures on an ex parte basis. Discussions in relation to revised drafts of article 17 and 17 bis of the UNCITRAL Model Law have continued at the fortieth session ( New York, 23-27 February 2004). Article 17 of the UNCITRAL Model Law provides that the arbitral tribunal may order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect to the subject matter of the dispute. However it may be noted that the article does not deal with enforcement of such measures.

• Journal of Arbitration Studies
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• v.31 no.4
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• pp.3-27
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• 2021

Recent Discussions on Third-Party Funding (TPF) in the forums of UNCITRAL, ICSID, and ICC are making different levels of progress towards finalizing the rules. However, they also have similarities in dealing with legal issues related to TPF, such as definitions, disclosure, allocation of costs, and security for costs. International treaty tribunals have dealt with TPF issues, too. When it comes to the standing of funded claimants, the tribunal in Ambiente v. Argentina did not accept the argument that claimants were controlled by the TPF provider. Concerning the scope of the disclosure, the tribunal in Tennant v. Canada ordered the disclosure of the TPF arrangement. As for the allocation of costs, the tribunal in Kardassopoulos v. Georgia noted that there is no reason why a TPF agreement should be treated differently than an insurance contract. Regarding the security for costs, the tribunal in South American Silver v. Bolivia considered the mere existence of a third-party funder as not an exclusive factor to determine costs in the earlier stage of the proceedings. Lastly, relating to TPF as a ground for annulment, the tribunal in Teinver v. Argentina declined the respondent's argument that the TPF agreement was the vehicle of fraud.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.37-57
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• 2017

On 9 March 2017, a Tribunal constituted under the ICSID Convention issued its ruling in the case of Ansung Housing v. People's Republic of China, dismissing with prejudice all claims made by the Claimant, Ansung Housing Co., Ltd., in its Request for Arbitration, pursuant to ICSID Arbitration Rule 41(5). Ansung Housing v. PRC has drawn attention since it is the first case where an investor with Korean nationality initiated an ICSID arbitration on the basis of the Korea-China Bilateral Investment Treaty (BIT) as amended in 2007 between the Republic of Korea and the People's Republic of China. The Tribunal finds that its ruling is about a lack of jurisdiction of the ICSID and of its own competence as well as regarding manifest lack of legal merit due to a lack of temporal jurisdiction, since a Respondent's Rule 41(5) objection is concerned with the three-year limitation period in Article 9(7) of the Korea-China BIT. The Tribunal held that, under Article 9(7) of the Korea-China BIT, the limitation period begins with an investor's first knowledge of the fact that it has incurred loss or damage, not with the date on which it gains knowledge of the quantum of that loss or damage. Finally, the Tribunal held that Ansung submitted its dispute to ICSID and made its claim for purposes of Article 9(3) and (7) of the BIT after more than three years had elapsed from the date on which Ansung first acquired knowledge of loss or damage and that the claim is time-barred and, as such, is manifestly without legal merit. It remains to be seen whether the aggrieved Claimant initiates annulment proceedings before an ad hoc committee under the ICSID Convention. It is quite interesting to see whether the decisions by the Tribunal should be reversed on the basis of the Claimant's arguments as to the start date as well as the end date of the limitation period under the Korea-China BIT.

• Journal of Arbitration Studies
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• v.24 no.3
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• pp.1-31
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• 2014

The foundation of the arbitration jurisdiction is the arbitration agreement entered into by the parties to a contract. Usually, only the signatory parties to a contract and the disputes arising from a contract that includes an arbitration clause or to which the arbitration clause relates are the ones that can be submitted to arbitration. This article discusses some of the arguments for extending the arbitration clause in complex arbitrations, that is, in those cases where there are more than two parties, more than two contracts or more than two parties and contracts. Particularly, this paper addresses multiple contract arbitration when the contracts are related. One of the arguments used by the arbitral tribunal for the extension of jurisdiction is the existence of a link between the contracts. Additional arguments include implied consent, participation in the negotiation and performance of a contract and good faith. The article also discusses some of the typical cases of linked contracts in many civil law countries, such as subcontracts, third party beneficiaries and standard terms of contracts, from which arbitral jurisdictions problems may arise. Finally, special attention is given to Article 14 of the 2008 Peruvian Arbitration Law as the first provision in an arbitration law in Latin America that extends the arbitration agreement to non-signatory parties using for this a mixed approach.

• 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.30 no.2
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• pp.3-21
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• 2020

This study focuses on the binding power of the interim measures of the arbitral tribunal in ICSID arbitration and the effects of non-compliance. Upon consideration of the intentions of those who made these rules, given the interpretation of the provisions of Article 47 of the ICSID Convention and Article 39 of the ICSID Arbitration Rules, it was found reasonable to consider that the interim measures made by the arbitral tribunal in ICSID arbitration were not binding. However, in actual ICSID arbitration, most arbitral tribunals approve the binding power of the interim measures based on the purposes and the characteristics of the interim measures. As such, there is a certain distance between the legislative intention for interim measures in ICSID arbitration and the judicial practice, but considering the demand for maintaining the integrity of the arbitration procedure, it is reasonable to consider that the interim measures are binding. In addition, the fact that the interim measures have binding power can increase the possibility that the party will comply with the interim measures. Thus, the binding power of interim measures not only encourages voluntary compliance to the interim measures of the party, but can also cause negative consequences for the party if it is not met. In other words, the arbitral tribunal will be able to form negative inferences against the party who does not comply with it in a procedural side, and in the practical side, the party who does not comply with the interim measures will be compensated for the additional damages for non-compliance.

• Journal of Arbitration Studies
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• v.18 no.2
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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.