• 한국중재학회지:중재연구
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• 제17권2호
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• pp.43-70
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• 2007

The purpose of this paper is to make research on the contents and discussions of the draft of revised UNCITRAL Arbitration Rules that have been discussed and considered by the Working Group. At its thirty-ninth session (New York, 19 June-7 July 2006), the Commission agreed that, in respect of future work of the Working Group, priority be given to a revision of the UNCITRAL Arbitration Rules (1976). At its forty-fifth session (Vienna, 11-15 September 2006), the Working Group undertook to identify areas where a revision of the UNCITRAL Arbitration Rules might be useful. At that session, it was considered that the focus of the revision should be on updating the Rules to meet changes that had taken place over the last thirty years in arbitral practice. The largely amended provisions of the draft of revised UNCITRAL Arbitration Rules are as follows : Notice of arbitration and response to the notice of arbitration (Article 3), Designating and appointing authorities (Article 4 bis), November of arbitrators (Article 5), Appointment of arbitrations (Article 6), Appointment of arbitrators in multi-party arbitration (Article 7 bis), Challenge of arbitrators (Article 9), Replacement of an arbitrator (Article 13), Pleas as to the jurisdiction of the arbitral tribunal (Article 21), Interim measures (Article 26), Form and effect of the award (Article 32), and Liability of arbitrators (Proposed additional provisions). There are some differences between the draft of revised UNCITRAL Arbitration Rules and the KCAB Arbitration Rules. In order to jnternationalize the Korea's commercial arbitration system, it is desirable that the main articles of the draft of revised UNCITRAL Arbitration Rules should be admitted to the KCAB Arbitration Rules. In conclusion, the Commission was generally of the view of any revision of the UNCITRAL Arbitration Rules should not alter the structure of the text, its spirit, its drafting style, and should respect the flexibility of the text rather than make it more complex. The Working Group agreed that harmonizing the provisions of the UNCITRAL Model Law should not be automatic but rather considered only where appropriate.

• 한국중재학회지:중재연구
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• 제31권1호
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• pp.23-54
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• 2021

While maritime arbitration industry has not been prevalent in Korea, Korea ranked fifth in terms of export volume and its shipbuilding industry ranked top globally in shipbuilding order volume in 2020. The discrepancy between the maritime industry's productivity and relative lack of maritime arbitration has had a negative impact on Korea's economic development. To address these problems, this paper i) reviews preceding research, ii) examines the Korean maritime arbitration system's status and analyzes the KCAB's maritime arbitration statistics from 2005-2020, iii) examines major foreign maritime arbitration institutions' status and strategies including LMAA, SMA, SCMA, and HKMAG, and lastly iv) suggests practical ways to promote maritime arbitration in Korea. The Suggestions for promoting maritime arbitration are 1) to prepare and promote various maritime standardized forms for the Korean shipping industry, 2) to insert an arbitration clause in medium and large-size Korean shipping firms' B/L clause, 3) to expand professional maritime manpower training and other infrastructure, and 4) to enhance the predictability of the result of arbitration through maritime arbitral awards or by examining the feasibility of the appeal system against the arbitral award only on a point of law in the future. In conclusion, the success or failure of promoting maritime arbitration in Korea depends on the will, passion, cooperation and practice of the most important key players in maritime arbitration, such as the Asia Pacific Maritime Arbitration Center (APMAC), the Korean Commercial Arbitration Board (KCAB) and the Seoul Maritime Arbitrators Association (SMAA).

• 한국중재학회지:중재연구
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• 제27권3호
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• pp.33-52
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• 2017

This article tried to describe the laws concerning the enforcement of foreign arbitration awards in Indonesia. This issue is relevant in the light of frequent curiosity of foreign commentators, business communities, practicing lawyers, concerning the arbitration in Indonesia, in particular its enforcement of foreign arbitration awards. The main laws on arbitration analyzed were, firstly, the Indonesian law on arbitration, namely Law No 30 of 1999 on Arbitration and Alternative Dispute Resolution and the Presidential Regulation No 34 of 1981 concerning the Ratification of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. The provisions of Law of 1999 analyzed were confined to its international provisions on arbitration, in particular the requirements for the enforcement of foreign arbitration awards and also the requirement that the awards do not violate Indonesian public policy. The problem with the Indonesian arbitration law (and the courts' practice) were that no provisions which provided guidance or meaning with regard to public policy. The absence or lack of guidance or definition on public policy had some times confused lawyers or the parties in dispute fearing that their arbitration awards would not be enforced due to the violation of public policy. Secondly was the different opinion of two Indonesian arbitration experts, Prof. Sudargo Gautama and Prof. Priyatna Abdurrasyid. Both scholars had rather different opinions with regard to the meaning of public policy in Indonesia. Thirdly was a recent case law, Astro Nusantara Bv et.al., vs PT Ayunda Primamitra Case (2010) decided by the Indonesian Supreme Court with regard to the enforcement of foreign arbitration awards. This article concluded that the Indonesian court, in particular the Central of Jakarta Court, so far have given its support that the execution of foreign awards was duly enforced.

• 무역상무연구
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• 제55권
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• pp.125-154
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• 2012

The International Chamber of Commerce (ICC) has published revised rules of arbitration, which come into force on 1 January 2012 (the ICC Rules 2012). The ICC Rules 2012 apply to all arbitrations commenced on or after 1 January 2012, unless the parties have agreed to submit their arbitration to the rules in effect on the date of their arbitration agreement (Article 6(1)). The ICC Rules 2012 explicitly require both the arbitrators and the parties to make every effort to conduct the arbitration in an expeditious and cost-effective manner. The changes will force participants to define more aspects of their claims and outline the merits of the dispute earlier on in the process. The Rules also contain new penalties for behaving in a way that undermines the process's efficiency. The new Rules permit the tribunal, when making allocating costs, to take into account the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner. Entirely new provisions relate to the emergency arbitrators, case management, and multi-party arbitrations. The ICC Rules 2012 take into account developments in arbitration practice and procedure, and in information technology, since the last revision of the rules in 1998, the aim being to provide modern and flexible procedures that promote efficiency in the arbitral process.

• 한국중재학회지:중재연구
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• 제18권2호
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• pp.3-31
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• 2008

At its thirty-ninth session(New York, 19 June - 7 July 2006), United Nations Commission on International Trade Law(hereinafter referred to as the Commission) agreed to give priority to the topic of revising the UNCITRAL Arbitration Rules. From the forty-fifth through the forty-seventh session, the Working Group checked various issues based on the draft revised version of the UNCITRAL Arbitration Rules prepared by the Secretariat. At its forty-eighth session, the Working Group is going to finish its first reading of articles 38 to 41 of the draft revised version of the UNCITRAL Arbitration Rules, and to commence its second reading of the draft revised version of UNCITRAL Arbitration Rules. Korea is keen on enticing foreign direct investment into its territory. From the 1960s, Korea has concluded more than 80 BITs. Korea is making efforts to conclude FTAs with its trading partners. As of January, 2008, 3 FTAs have taken into effect with respect to Korea. According to provisions on dispute settlement found in such BITs and FTAs involving Korea, the Rules can be chosen for Investor-State Arbitration. Furthermore, the Rules is followed by the arbitration rules for domestic and international arbitrations administered by the Korean Commercial Arbitration Board. If the Commission adopts the revised version of UNCITRAL Arbitration Rules, the Rules will be able to give impact on the arbitration law and practice around the world of arbitration. That is the reason why we should keep attention to the development of the deliberations of the Working Group.

• 통상정보연구
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• 제16권5호
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• pp.67-86
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• 2014

상사중재는 문제를 해결하고 사업 파트너간 분쟁에 대한 해결책을 찾는 신속하고 효과적인 방법이다. 상사중재 발전을 위해 이론 뿐 만 아니라 실무차원에서 중재연구의 접근이 필요하다. 본 논문은 파키스탄 국내 중재법과 파키스탄에서 적용되는 국제상사중재제도에 대한 상황과 접근방법 등을 제시하였다. 파키스탄에서 새롭게 정비된 2009년 중재법은 국내중재, 국제상사중재, 외국 중재판정의 집행뿐 만 아니라 국제투자분쟁의 해결에 관한 법률을 통합하는 것을 목표로 한다. 더 나아가 2011년에 파키스탄 투자자의 신뢰를 회복하기 위해 외국인 투자자를 보호할 수 있는 법을 도입하기도 하였다. 본 논문은 파키스탄의 중재법의 과거부터 현재까지 진전된 관계를 설명하고 새로운 법령에 의해 적용된 변경사항을 설명하고 중재계약 및 판정을 다루는 파키스탄 중재 법률, 규칙 및 절차를 실무차원에서 포괄적으로 제시하였다. 잠재시장인 파키스탄관련 통상정보가 부재한 상황에서 한국무역학자들에게 파키스탄 상사중재제도에 관한 실무적 이해를 돕기 위하여 작성되었다.

• 한국중재학회지:중재연구
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• 제19권2호
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• pp.197-227
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• 2009

This study describe the brief history and current statutes of Philippine arbitration. The practice of arbitration in the Philippines can be traced as far back as the barangay. From 1521, Spanish Civil Code became effective in the Philippines. During this period, the Supreme court was discouraged by the tendency of some courts to nullify arbitration clauses on the ground that the clauses ousted the judiciary of its jurisdiction. According to the growing need for a law regulating arbitration in general was acknowledged when Republic Act No.876(1953), otherwise known as the Arbitration Law, was passed. In 1958, the Philippines became a signatory to the New York Convention and in 1967 the said Convention was ratified. But no legislation has been passed. As a consequence, foreign arbitral awards have sometimes been deemed only presumptively valid, rather than conclusively valid. Fifty years after, the Philippine Congress enacted, Republic Act No. 9285, otherwise know as the Alternative Dispute Resolution Act of 2004. The enactment was the Philippines solution to making arbitration an efficient and effective method specially for international arbitration. To keep pace with the developments in international trade, ADR Act of 2004 also ensured that international commercial arbitration would be governed by the UNCITRAL Model Law on International Arbitration and also fortified the use and purpose of the New York Convention by specifically mandating. If the international commercial arbitration will be revitalization in the near future in the Philippine, it will be shown that the model law's comprehensive provisions will give the beat framework for arbitration.. The writer expect that Philippines continues in its effort to be the premier site for international arbitration in Southeast Asia.

• 한국중재학회지:중재연구
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• 제32권1호
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• pp.25-42
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• 2022

The modern arbitration practice recognises the need for a faster and simplified procedural framework for international disputes with fairly low amounts at stake. This has driven several institutions to expand their offer of procedural guidelines with a simplified set of rules that would fit this purpose. Expedited arbitration is increasingly used by parties and is growing in popularity. The basic idea behind establishing expedited arbitration rules is to create the possibility for the parties to a dispute to agree on a simplified and streamlined procedure and to have an arbitration award issued within a short period. The associated cost savings for the parties is another benefit. The importance of developing rules for expedited dispute resolution has recently also been considered by the UNCITRAL Working Group II, in light of the "increasing demand to resolve simple, low-value cases by arbitration" and "the lack of international mechanisms cope with such disputes." As a result, the UNCITRAL 2021 Expedited Arbitration Rules (UNCITRAL EAR) took effect on September 19, 2021. The EAR was adopted by the Commission on 21 July 2021 and, next to UNCITRAL's well-known instruments like the Arbitration Rules (UAR) and the Model Law, represent another chapter in the Commission's impactful work in the field of international arbitration. Overall, the UNCITRAL EAR has great potential to meet the need for more flexible and efficient arbitration proceedings, primarily because they provide the tribunal with strong managerial powers while still leaving room for consultation with the parties. However, parties must remember that not all disputes may be suitable for expedited arbitration, and disputes that are complex or have the possibility of being joint or consolidated may not benefit from simplified procedures and tight deadlines. This article will outline the core features and characteristics of the UNCITRAL EAR.

• 한국중재학회지:중재연구
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• 제24권4호
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• pp.3-28
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• 2014

This article examines the Annulment Mechanism of arbitral awards rendered under the auspices of the International Centre for Settlement of Investment Disputes (ICSID). The primary feature in the ICSID and non-ICSID arbitration regarding the review of awards involves the unified nature of the ICSID system, as compared to the scattered and multi-layered system of review existing under arbitration rules, national legislation, and international convention. This unity can be perceived at different levels. The ICSID annulment mechanism entails only a set of rules; thus, only one set of application standards of review will be implemented, as opposed to sometimes conflicting layers of application rules, laws, and convention, as in the case of non-ICSID arbitration. However, some of the recent annulment decisions have raised serious questions about the breadth of annulment in practice, as opposed to its original design. Nonetheless, implementing a new system under the ICSID awards to be reviewed by an appellate court appears to create more problems than it solves. The potential impact of introducing that mechanism could result in a longer and more complex proceeding, with uncertain benefits.

• 한국중재학회지:중재연구
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• 제24권2호
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• pp.81-107
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• 2014

ADR has recently been expanded, making it possible to solve traffic accident disputes, which is a matter of urgency for parties to avoid. This point serves as an important procedural element. Such disputes are an area that requires a quick resolution. To try to solve any dispute that occurs in the complex environment of modern times one-by-one through litigation does not make sense. It gives an undue burden on the judicial body and the investigation agency. Like litigation, today's arbitration system, should have effective conflict resolution. The arbitration of automobile traffic accident disputes can be seen as roughly adjusted through the insurance company, the Dispute Coordinating Committee, and the Crime Victims Protection Act. It consists of experts mainly, and the resolution of automobile traffic accident disputes can be resolved through the Sajonsa and workers insurance company. However, adjustments to failure incident mostly need attention. Most of a company's compensation insurance indemnity needs to be processed in practice. In addition, a vicious cycle of litigation and delay period is repeated if a lawyer is appointed. There are unreasonable adjustment systems in the midst of these. Avoiding traffic accidents allows parties to resolve disputes better. Arbitration of disputes in automobile traffic accidents handled by arbitration institutions is desirable. It is determined that the handling of a case by a village attorney is efficient.