• Journal of Arbitration Studies
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• v.19 no.3
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• pp.25-42
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• 2009

That occur in international trade disputes between the parties without resorting to a court trial on the basis of principle of government by the parties to resolve the dispute resolution in general (Alternative Disputes Resolution: ADR) agreed to, reconciliation, coordination, mediation and other methods are. Here, unlike arbitration and other dispute resolution arbitrator, the court confirmed the arbitration award came from the judge and the same shall become effective in doing international commerce dispute resolution methods are widely used. Arbitration Agreement is a contractual dispute, regardless of whether a certain law there arise about the relationship between the parties, Currently exists, future conflicts can arise in whole or in part by the arbitration agreement is to be resolved. Arbitration agreement include: the effects of out of contract arbitration proceedings, the court does not want the progress of the dispute referred to arbitration proceedings to the effect, and the presence of the parties to the arbitration agreement does not claim to knowing the defense plea that Appeals ticket of destruction that have the effect of demurrer, that the arbitration agreement are rebuttal to the rebuttal of prozesshindernde Einrede and the mediation of a plea on the merits when the first defense must be submitted to the arbitration proceedings in which the applicant until the arbitration award determined that the property dispute to court for water conservation measures to dispose of the watch was in effect for arbitration in the contract. In addition, the arbitration agreement and the court sentenced the same kinds of effects that resolved the final effect, especially at the same time the effect of foreign recognition and enforcement of the decision regarding the New York Convention arbitration award based on the recognition and enforcement of domestic and international effects are being recognized. Consequently, the arbitration agreement to take effect a valid arbitration agreement exists is determined by whether or not staying. Therefore, agreements between individual university entrance exams based on the company signed a contract regarding the effect of arbitration first, associated with individual university entrance exams, and the leading research and analysis, review, and examine the general concept of the arbitration agreement after the arbitration agreement between the parties focuses on information about the effects of study to contribute to the activation of the arbitration system is aimed at the individual university entrance exams.

• Journal of Arbitration Studies
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• v.33 no.1
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• pp.51-76
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• 2023

It is important who is bound by an arbitration agreement and what is the subject of the agreement in resolving disputes through arbitration. However, there are no provisions on them in the Korean Arbitration Act. Where an arbitration agreement is valid, the persons who are bound by the agreement cannot bring the claims which are the subject of the agreement to a court. Therefore, in determining the subjective scope of the effect of an arbitration agreement, we should make allowances for the essential qualities of arbitration to ensure the efficient resolution of disputes on the basis of the parties' agreement, and take caution not to infringe on the rights to be tried in court. Where the rights or legal relationships constituting the dispute that is the subject of the arbitration agreement have been assigned, the effect of the arbitration agreement between the predecessor and the other party should be extend to the successor, when it is agreed to transfer the status under the arbitration agreement to the successor between the three. However, in the absence of such an agreement, it is necessary to weigh the interests between the predecessor, the other party and the successor to determine whether the arbitration agreement has any effect on the successor. Arbitration is a method of resolving disputes based on the agreement of the parties. If it matters whether third parties who are not parties to the arbitration agreement is bound by the arbitration agreement or may invoke it, it should be resolved according to the intentions of the parties. Where the parties to an arbitration agreement have agreed to allow a third party to invoke the arbitration agreement, the effect of the arbitration agreement will extend to the third party. However, even if the parties to the arbitration agreement have not expressly agreed on this, when it is recognized that the parties have sought to resolve the dispute through arbitration even in relation to a third party by exploring the reasonable intentions of the parties, the effect of the arbitration agreement will extend to the third party.

• Journal of Arbitration Studies
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• v.23 no.2
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• pp.1-35
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• 2013

In the 21th century, its important role in international commercial disputes has established arbitration as the preferred form of dispute resolution. Because commercial disputes have become more complicated and varied with their quantitative increase, it is important that they be settled in a reasonable and rapid manner. Alternative Dispute Resolution (ADR) is now regarded as one of the most effective dispute resolution methods for the settling of commercial disputes and merits notice. Arbitration is a form of dispute resolution in which two parties agree to have their dispute resolved by one or more arbitrators and thereby avoid what could be costly and time-consuming court battles. Often contracts mandate that disputes be settled through arbitration. These arbitration clauses also frequently prohibit plaintiffs from banding together to bring an action on behalf of a larger class. An arbitration agreement is an agreement by parties to summit to arbitration all or certain disputes which have arisen or which may arise between them with respect to their defined legal relationship, whether contractual or not. According to the Supreme Court, general elective arbitration clauses may be considered valid in light of all the relevant facts. Arbitration has been the subject of a great deal of research and the scope of effect in arbitration agreements is a promising avenue for future research.

• Journal of Arbitration Studies
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• v.11 no.1
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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.

• Journal of Arbitration Studies
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• v.25 no.2
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• pp.49-70
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• 2015

There are three categories of arbitration - domestic arbitration, foreign-related arbitration and foreign arbitration. Although the meaning of foreign arbitration and International Commercial Arbitration is different, they are used to mean the same in practice. In fact, there is significant controversy about the meaning of non-domestic arbitration because it is too difficult to distinguish between non-domestic arbitration and domestic arbitration. In the Chinese arbitration system, there are two main laws,Chinese Arbitration Law and Chinese Civil Procedure Law. Chinese Arbitration Law regulates the internal matters, while Chinese Civil Procedure Law regulates the external legal regulations. After the 2012 revised Chinese Civil Procedure Law, a number of laws and regulations have been revised, and almost every Arbitrations Rules have been revised, and will be in effect in 2015. Depending on the nationality of arbitration, the applicable laws will be different. The nationality of arbitration is so important that this paper will pay more attention to it. Although the case in China has no precedent effect, it is so important to the parties that this paper will address it. This paper will analyze the process and the cases of the recognition and enforcement of the award system in China.

• Journal of Arbitration Studies
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• v.34 no.2
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• pp.3-26
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• 2024

The insolvency proceedings, which are collective debt processing procedures that equitably distribute properties of the debtor who is declared insolvency to multiple creditors, and the arbitral proceedings that resolve disputes over individual legal relationships between the parties differ in nature. However, there are no express provisions that directly regulate the legal relationships when the party to an arbitration agreement is declared insolvency. The presence of an arbitration agreement between the parties does not necessarily initiate the arbitral proceedings, the arbitral proceedings are initiated by the parties' application under the arbitration agreement. It is also necessary to examine the effect of the insolvency of the party to the arbitration agreement on the arbitral proceedings step by step. This paper reviews the cases in which the parties to the arbitration agreement have been declared insolvency before the commencement of the arbitral proceedings and have been declared insolvency during the arbitral proceedings. This paper examines how the effect of the arbitration agreement affects the insolvency proceedings when the debtor is declared insolvency after concluding the arbitration agreement and how the declaration of insolvency affects the arbitral proceedings when the debtor, who is a party to the arbitration agreement, is declared insolvency during the arbitration proceedings.

• Journal of Arbitration Studies
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• v.33 no.4
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• pp.3-35
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• 2023

The Korean government has enacted the Arbitration Industry Promotion Act, which aims to foster the arbitration system as an industry, strengthen national competitiveness, and systematically provide government support so that the arbitration industry can become a future growth engine, and has been in effect since June 28, 2017. In accordance with Article 3 of the Arbitration Industry Promotion Act, the Minister of Justice must establish and implement the Basic Plan for the Promotion of the arbitration industry every five years to promote the arbitration industry. Accordingly, the Ministry of Justice established the "Basic Plan for the Promotion of the Arbitration Industry" (2019-2023) at the end of 2018, which has been in effect since January 1, 2019. This study first reviews and evaluates the domestic arbitration sector performance of the first basic plan, then reviews and evaluates the international arbitration sector performance of the first basic plan, and finally suggests what tasks to focus on when establishing the second basic plan for Promotion of Arbitration Industry.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.89-120
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• 2006

If the existence and effect of the arbitration agreement becomes an issue in international business transactions, it is the key point how we shall determine the applicable law by national rules for the conflict of laws, or by other methods. The argument in determination of the applicable law to the existence and effect of the arbitration agreement is related to regal nature of the arbitration agreement. As there are foreign factors in international arbitration, therefore we must consider such an aspect. Besides, we have to examine whether the general theory of contract is universally applicable to the arbitration agreement. Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the arbitration agreement. However, it is a difficult problem to recognize the applicable law chosen by the parties, whether it is based on any regal standard(for example New York Convention or the private international law or the essential quality of the arbitration agreement). In the light of the actual transactions, when the parties don't make a choice of the applicable law expressly, it will finally come down to presuming the party's implied intent. Nevertheless, finding the implied intent is a difficult problem. Some argue that we shall presume the choice of applicable law by an objective standard such as a place of arbitration, to prevent too much expansion of the scope of the recognition. But we need to review that this interpretation harmonizes with the principle of party autonomy. Especially, if we desire to detect the vital point where it is most closely linked to the arbitration agreement, we have to inquire how we will decide such a relation by means of any standard. However, as the existing Arbitration Act doesn't offer the solution to these issues, therefore we have to settle these problems through the development of adjudications and theories.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.3-33
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• 2017

This paper examines some questions and issues of the effect of an arbitral award, and discusses about the restriction of the trial level in other separate actions permitted under the existence of grounds of setting aside arbitral award after the amendment of the Arbitration Act in 2016. Because there are no interests of litigation in the action for setting aside arbitral award due to the exclusion of res judicata by provisory clause of Article 35, filing an action for setting aside is not allowed even when the grounds of setting aside exist. If we examine the precedent on possibility of retrial for excluding the outward form of invalid judgement, we can find that the court did not approve the retrial. Therefore, the action for setting aside that which is for excluding the outward form of an arbitral award will not be allowed for filing. On the issue of whether an arbitral award having a ground for setting aside can be an object of the action for setting aside for excluding its outward form or not, the views of scholars are divided. In the case of an arbitral award that has grounds for setting aside, it could be interpreted that the arbitral award would not have a formale Rechtskraft or effect of sentence (bindende Kraft). Even if there is formale Rechtskraft or effect of sentence (bindende Kraft), the significance of existence of action for setting aside arbitral award under paragraph 1 of Article 36 is reduced because other actions separate from arbitration is permitted under the 2016 Act. The amendment of the Arbitration Act in 2016 provides an opportunity to review the position and the role of action for setting aside the arbitral award. It also requires further studies on efficiently treating other actions separate from arbitration. Because the restriction of the trial level of other separate actions can make arbitration active by making arbitration procedures become 3 trial levels from 4 trial levels, it needs to be solved with legislative action. Specifically, if the trial starts at the stage of trial on appeal, it can utilize the strength of both the arbitration and the litigation, playing a chief role in boosting arbitration by removing the problems of action for setting aside and enabling arbitration institutes and the person interested to promote the activation of arbitration.

• Journal of Arbitration Studies
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• v.8 no.1
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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.