• 무역학회지
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• 제43권6호
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• pp.139-160
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• 2018

본 연구는 중재판정부의 임시적 처분에 대하여 중국 정부가 어떤 기준에 근거하여 판단하고 있는지 관련 사례분석을 통해 규명하고자 하였다. 먼저 대부분의 국가에서 중재판정부 에 의한 임시적 처분을 인정하고 있는 반면, 중국은 여전히 법원 고유의 권한으로 인정하고 있다. 이는 국제적 추세와 불일치하는 판단이기도 하다. 특히 주요법률 규정인 중재법과 민사소송법이 2017년에 개정되었음에도 임시적 처분에 대한 규정은 변화가 없고 여전히 중재규칙간의 불일치로 인한 문제가 남아 있다. 따라서 중재절차상 임시적 처분이 어떻게 적용하고 집행하는지 중국의 입장과 태도에 대해서 주의를 기울일 필요가 있다.

• 한국중재학회지:중재연구
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• 제15권2호
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• pp.93-123
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• 2005

As the international commercial transaction has drastically grown up with the mainland China, commercial disputes that are required to settle through ADR have tremendously increased during the last decade. Since China has not been fully exposed to the Free World for a long period of time, there would have been a great amount of misunderstanding about their competency and integrity to deal with internationally oriented commercial transactions with a view to internationally acceptable manner. This arbitration case was related to the contract in dispute of C&A Inc. as the importer v. China XX Importation Co. as the exporter for the sale of Silicon Metal. But after the contract were formed, exporter(respondent) declined to deliver the goods under the contracts because the market price of Silicon Metal increased according to the argument of the importer(claimant). Importer had to purchase alternative goods from other companies to substitute for the goods subject to the contracts in dispute. Importer purchased silicon metal of the same quality as under the contracts from two other Chinese companies as the necessary measure to mitigate the loss, paying prices higher than the contract price. Since exporter had breached the contracts, importer's loss should be compensated by the exporter as the Arbitration Tribunal decided for supporting importer's claim of loss for the substitute goods. This study is aiming at analyzing the rationale of the arbitral awards made by the Shanghai Commission in terms of (l)Place of Arbitration, (2)Applicable Law, (3)Validity of the Contracts, (4)Doctrine of Frustration, (5)Responsibility for the Mitigation of Damage by the Importer.

• 한국중재학회지:중재연구
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• 제4권1호
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• pp.1-22
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• 1994

• 한국중재학회지:중재연구
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• 제30권1호
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• pp.113-138
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• 2020

Using the Alternative Dispute Resolution (ADR) system to resolve disputes, rather than going through lawsuits, is used widely all across the world. The mediation system in the ADR has many advantages. Mediation is an ancient Chinese original dispute settlement system. The Chinese government tries to insure mediation to settle the disputes in business activities. There has been a stark increase in disputes following economic development and, in order to solve this, the Supreme People's Court has placed mediation as a priority in civil suits. In particular, China intends to powerfully move forward by building a "Moderately Prosperous Society" and to eradicate poverty as this year's economic and social development goal. Solving disputes through mediation would, above all else, be effective and be appropriate to the national development's goals. China should also provide policies that are fair and do not damage equality while it operates the mediation system.

• 한국중재학회지:중재연구
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• 제23권4호
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• pp.191-209
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• 2013

The amount of international trade conducted through Hong Kong (HK) is increasing, thus rendering the legal framework governing contracts of sale between Mainland China (China) and HK is of particular importance. The status of HK under the CISG is currently unclear, however. First, the CISG entered into force in China in 1988. This important development had no legal effect for HK though as China lacked the power to enter into international conventions for HK. Second, the "Letter of Notification" deposited to the Secretary-General of the UN referred a list of treaties to be applied to HK, taking effect from July 1, 1997. This list, however, made no mention of the CISG. Third, China made a reservation in Article 95 of the CISG. Pursuant to Article 1(1)(b) of the CISG, the CISG cannot apply to HK. As a result, the Chinese Arbitral Tribunal apply the Chinese law according to the closest connection principle with the contract. In this case, attention must be given to the different result to which the CISG is applied. Liability for damages pursuant to the Chinese Contract Law (CCL) is just the same as Article 74 CISG, but CCL does not govern the case with substitute transaction and without substitute transaction when the contract is avoided. Therefore, the contract should be governed by the CISG from a business perspective when a contract is concluded between China and HK; otherwise, a promisee could not be fully compensated for all loss incurred.

• 한국중재학회지:중재연구
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• 제16권2호
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• pp.239-264
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• 2006

Globalization of business activities and the market is making intern ational movement of capital much freer. Therefore the introduction of global standard is inevitable. Each and every country has had its own standard which restrain free exchange and cause misunderstanding and conflict between countries. A country or a company which is not capable of meeting the global standard can not be accepted in the global market. Consequently, it will eventually be left behind. It is right to say that countries and companies should accept the global standard and abide by it to survive in the competitive global market. The following preface which was introduced in the international conference co_organised by BAC, FTCTC and Tsinghua University in May, 2004 shows a timely movement for the globalization of construction business. *B A C, Beijing Arbitration Commission *FTCTC, The FIDIC-Tsinghua-CNAEC Training Center *CNAEC, China National Association of Engineering Consultants Introduction, As arbitration becomes more and more popular in the ways of alternative disputes resolution all over the world, the BAC is devoted to promoting international arbitration in China. As FIDIC contracts constitute an accepted point of reference for international construction contract, the BAC, characteristic of construction projects, is willing to facilitate the FIDIC contracts as the referred construction contracts in China. In order to carry out its purposes, the BAC, together with FTCTC is going to convene for discussion of dispute resolution and arbitration of international construction projects. FIDIC, construction contract management guide, explains arbitration as the ultimate dispute resolution method. The detail of FIDIC will be suggested in this essay.

• 한국중재학회지:중재연구
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• 제17권3호
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• pp.81-99
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• 2007

The purpose of this paper is to analyze trade disputes between Korea and China in terms of broad industrial policy concept and to derive some solution. It provide first a historical overview of the basic theory for the trade policy in the developing countries to see how the trade policy evolved the different stage of option and then try to highlight features of China's trade policy development after the capitalization. An attempt is also made to review the trade dispute in Kimchi in order to identify what are the underlying reasons for policy failure. Finally, we will try to suggest trade strategy with major policy directions which could be relevant for trade development of Korea today. The trade dispute issue with China has been newly coined referring to Korea's weakening economic stance among the two powerful Asians countries, China and Korea has always been closed partners geographically and economically. The study has stressed that the Koreans should not recoil from the trade crisis but to consider it as an opportunity. Rapidly growing Chinese manufacturing industry has heightened the importance of trade between Korea and China, indicating conversion in specialization from vertical to horizontal, according to the economic research so far. This paper has proposed strategy to cope with any trade disputes between Korea and China.

• 무역상무연구
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• 제31권
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• pp.107-134
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• 2006

Enforcement of an arbitration award is an extremely important issue in arbitration. Arbitration, as a dispute settlement process, is rendered meaningless if it is not possible to enforce an award rendered by an arbitration tribunal. On the other hand, the present international arbitration system guided by the New York Convention and UNCITRAL Model Law is established on the dual supervision from the national courts. The nationality of the international arbitral award closely relates to the supervision of the national court, and the national court is entitled to decide the nationality of the international award in accordance with the conditions set in its own domestic law. The national court may set aside arbitral award made in its territory while the foreign court may refuge enforcement of foreign arbitral awards according to its own law and international convention to which it is a party. The conditions set in the Arbitration Law of the People's Republic of China are in agreement with those set in the UNCITRAL Model Law. The Chinese national court is entitled to set aside international awards made in China in accordance with the Chinese Law. The purpose of this paper is to clarify the Chinesr practice on the revocation of international commercial arbitral awards.

• 한국중재학회지:중재연구
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• 제21권3호
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• pp.137-163
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• 2011

The Law of the People's Republic of China on the Mediation and Arbitration of Rural Land Contract Disputes, which was adopted at the 9th session of the Standing Committee of the 11th National People's Congress of the People's Republic of China on June 27, 2009, is hereby promulgated and shall come into force as of January 1, 2010. This Law is enacted with a view to impartially and timely settling the disputes over contracted management of rural land, maintaining the legitimate rights and interests of the parties concerned and promoting the rural economic development and social stability. The mediation and arbitration of disputes over contracted management of rural land shall be governed by this Law. The disputes over the contracted management of rural land include: 1) disputes arising from the conclusion, fulfillment, modification, cancellation and termination of rural land contracts; 2) disputes arising from the sub-contract, lease, interchange, transfer, holding of shares and other means of turnover of contracted management rights to rural land ; 3) disputes arising from the withdrawal and adjustment of the contracted land; 4) disputes arising from the confirmation of contracted management rights to rural land; 5) disputes arising from impairment to the contracted management rights to rural land; and 6) other disputes over contracted management of rural land as prescribed in law and regulations. The disputes arising from requisition of collectively owned land and the compensations therefor do not fall within the scope of acceptance by the rural land contract arbitration commission, they may be settled by means of administrative reconsideration or lawsuits. In the case of disputes over the contracted management of rural land, the parties may make reconciliation by themselves or may request mediation by the villagers' committee, people's government of the township (town), etc. This study analyzed each process and the main issues on the point of the Mediation and Arbitration of Rural Land Contract Disputes.

• 한국중재학회지:중재연구
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• 제23권1호
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• pp.25-53
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• 2013

With the Korea-China FTA negotiations currently on the line, the importance of research into the FTA dispute settlement system has been increasing. In this paper, a comparison of Korea and China's FTA dispute settlement agreements concluded with ASEAN is contemplated, and implications for the future of the Korea-China FTA have been suggested. The FTA dispute settlement agreements with ASEAN concluded by both Korea and China provide perspectives on both sides. This agreement with ASEAN also provides a standard for the potential Korea-China FTA agreement. Specifically, the basis of these agreements with ASEAN is the same, although there are clear distinctions, described in a more detailed manner. A problem arises when there has been no discussion on dispute settlement agreements in Korea, especially of the agreement with ASEAN, whereas the opposite is true of the China counterpart. In this paper, Chinese academic FTA dispute settlement agreement studies have been also examined.