• Journal of Arbitration Studies
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• v.33 no.3
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• pp.3-30
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• 2023

This article provides an overview of the state of attorney-client related privilege and confidentiality in Korea. It reviews the statutory framework, and how Korean courts have analyzed the privilege and confidentiality related to attorneys and their clients. It then examines the legislative initiatives Korea is currently debating with regard to adopting a more common law-style attorney-client privilege (ACP). If adopted, the new legislation will mark a significant milestone in providing guidance on how communications between attorney and client will be treated. Its impact in the context of international arbitration practice and law related to Korea is explored.

• Journal of Arbitration Studies
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• v.24 no.4
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• pp.49-97
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• 2014

This study is about the availability of Chinese internal arbitration institutions by Korean invested companies. Generally, Chinese internal arbitration institutions lack independence from government. However, because parties seeking an arbitration award have ways to get neutrality from internal arbitration institutions that guarantee party autonomy, these Korean companies can use Chinese internal arbitration institutions to resolve disputes in China. Special attention should be given to the following. First, because Korean companies invested in China are legally in the same position as Chinese companies, unless foreign-related factors intervene, when disputes occur with Chinese companies or individuals, the disputes correspond to internal dispute, and when it comes to choosing the arbitration institution, these Korean companies must choose either a Chinese internal arbitration institution or foreign-related arbitration institution. Second, most Chinese internal arbitration institutions still lack independence from government, which can influence the fairness of arbitration in the future. Therefore, Korean companies invested in China should think about alternative ways to get a minimum impartiality in arbitration cases. Third, the parties are allowed to choose arbitration rules freely in Beijing, Xian, Chongqing, Guangzhou, and Hangzhou arbitration commissions. Therefore, in arbitration cases, the parties can get impartiality by choosing arbitrators according to the arbitration rules which they agree on, or by choosing partially modified arbitration rules of those arbitration commissions. Fourth, in order to get an impartial arbitration award from Chinese internal arbitration institutions in China, it is important for Korean lawyers or arbitration experts -- fluent in Chinese -- to be registered in the List of Arbitrators of Chinese internal arbitration institution by way of signing a MOU between the Korean Commercial Arbitration Board, or the Korean Association of Arbitration Studies and arbitration commissions such as those of Beijing, Xian, Chongqing, Guangzhou, and Hangzhou which comparatively do guarantee party autonomy. Fifth, because application of the preservation of property before application of arbitration is not approved in China, in practice, in order to preserve property before application of arbitration, it is best to file another suit in China based on other legal issue (e.g., tort) independent from the contract which an arbitration agreement is applied to. Sixth, in arbitration commissions which allow different agreement regarding arbitration procedures or arbitration rules, it is possible to choose a neutral arbitrator from a third country as a presiding arbitrator via UNCITRAL arbitration rules or ICC arbitration rules. Seventh, in the case of Chinese internal arbitral award, because the court reviews the substantive matters to decide the refusal of compulsory execution, the execution rate could be relatively lower than that of foreign-related cases. Therefore, when Korean companies invested in China use Chinese internal arbitration institution, they should endure low rate of execution. Eighth, considering the operational experiences of public policy on foreign-related arbitration awards so far, in cases of Chinese internal arbitration award, the possibility of cancellation of arbitral award or the possibility to refuse to execute the award due to public policy is thought to be higher than that of foreign arbitral awards. Ninth, even though a treaty on judicial assistance in civil and commercial matters has been signed between Korea and China, and it includes a provision on acknowledgement and enforcement of arbitral award, when trying to resolve disputes through Chinese internal arbitration institution, the treaty would not be a big help to resolve the disputes, because the disputes between Korean companies invested in China and the party in China are not subject to the treaty. Tenth, considering recent tendency of conciliation by the arbitral tribunal in China and the voluntary execution rate of the parties, the system of conciliation by the arbitral tribunal is expected to affect as a positive factor the Korean companies that use Chinese internal arbitration institution. Finally, when using online arbitration, arbitration fees can be reduced, and if the arbitration commissions guaranteeing party autonomy have online arbitration system, the possibility of getting impartial arbitration award through them is higher. Therefore, the use of online arbitration system is recommended.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.113-133
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• 2015

This article reviews some recent decisions of the Supreme People's Court (SPC) of the People's Republic of China (PRC) on the recognition and enforcement of several South Korean arbitral awards. It explains the implementation of the New York Convention in the PRC and in particular the so-called Report System under the current Mainland Chinese law and judicial practice. It identifies some deficiencies in the People's Courts' approaches to the application and interpretation of the New York Convention and argues that the Mainland Chinese courts should adopt the pro-enforcement principle in the determination of the relevant issues under the New York Convention. It proposes further enhancement of the Report System and that the current categorization of 'domestic, foreign-related and foreign' in the context of arbitration agreements and arbitral awards needs to be further reviewed and clarified by the SPC. Last but not the least, it recommends some steps that South Korean parties should take to enhance the enforceability of South Korean Arbitral Awards in Mainland China.

• Journal of Arbitration Studies
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• v.32 no.3
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• pp.47-70
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• 2022

This paper studies legal regulation of the public policy exception in the Russian Federation and domestic judicial practice on the issue. It reviews current legislation and analyzes a number of recent court cases where an arbitral award rendered by a foreign arbitration body was refused recognition and enforcement based on public policy violation. By doing so, it contributes to the knowledge on the concept of public policy in the Russian legal system and how public policy can affect the process of recognition and enforcement of foreign arbitral awards on its territory. The review of court cases demonstrates different aspects of how the public policy exception can be applied by Russian arbitrazh courts. Such decisions can provide a clearer picture of the kinds of situation that can lead to invoking the public policy clause by the court. Also, it is of practical value as persons preparing to file a claim or to be a defendant in a Russian court can be required to present existing court decisions in support of their claim or defence.

• Journal of Arbitration Studies
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• v.11 no.1
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• pp.181-215
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• 2001

The thirty-fourth session of UNCITRAL Working Group on Arbitration was held in New York. Among the topics discussed at the session, many delegations agreed to reform the article 7 of the UNCITRAL Model Law on International Commercial Arbitration in light of the development of electronic commerce. As for the article 2(2) of the New York Convention, it was agreed to reflect the changes of the article 7 not in the form of a treaty amendment but in the form of an interpretative statement. The topic as to provisional measures has been found so difficult to reach an agreement that most of its texts submitted by the secretariat were left untouched for the lack of time. However, most provisions of the legislative texts on conciliation were dealt with by delegations. The next session is to be held in Vienna. While the Korean Arbitration Act of 1966 was fully amended in 1999, it seems interesting to look at the development in which the arbitration community of the world has already begun discussing the new dimension of the law and practice of international commercial arbitration. It may be considered early to start a new project of reforming the Korean Arbitration Act at this time when only three years passed after it was fully amended. It is, however, worthwhile to remember that some progressive efforts were aborted in amending the Arbitration Act of 1966. One of them is about the same issue on the insertion of some provisions on the enforcement of interim measures of protection to which the priority is given by the Working Group. It seems fair to say that it would not be dangerous to follow the developments and to adapt ourselves to such trends shown in the session. In Korea, the words “arbitration” and “conciliation” are misleadingly interchanged although these two words should be differentiated from each other in the sense of third-party binding decision. It is self-evident from the Korean Arbitration Act and judicial decisions that arbitral awards bind the disputing parties and are to be treated as final judgements by the competent courts. It is, however, not uncommon to find that the word “arbitration” is misinterpreted as having the same meaning of the word “conciliation”. One of the reasons for the confusion is that many legislations in Korea provide for conciliation as having the meaning of arbitration and vice versa. It may be probable that the proposed legislative texts on conciliation could be a kind of useful method to prevent such confusion from being uncontrollable. It is, therefore, necessary that the legislative texts should be introduced into Korea as a legislation on conciliation.

• Journal of Arbitration Studies
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• v.9 no.1
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• pp.265-290
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• 1999

All kinds of commerces are begun from the contract and the claims are frequently raised by the problem in the contracts. Therefore, the negotiation is very important to make a contract and resolve the claim. This article compared and analyzed the negotiation practice of Korean, American and Islam to strengthen the negotiation power of the Korean domestic companies and suggested the some guidelines when the Korean companies negotiate with the foreign companies. For the negotiator to make a effective negotiation with the foreigners and a make the negotiation performance, The negotiator has to prepare for the negotiation practice and strategy of the foreign countries. Secondly, the negotiator has to be accustomed to the foreign country and make the win-win strategy by giving the benefit to the foreign company as well as him. Especially, in the negotiation with American, it is very necessary that the negotiator persuade him logically by preparing the objective data and include the lawyer into the negotiation team. In the negotiation with Islam, making the personal relationship and, if possible, frequent contact with the person who has the responsibility in the contract is very important.

• Journal of Arbitration Studies
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• v.21 no.3
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• pp.21-54
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• 2011

International commercial arbitration has established itself as the primary dispute resolution mechanism for international business transactions. Certainly, there are commonly-accepted standards that have evolved to reflect an internationally-harmonized approach to issues relating to the taking of evidence. This is reflected in International Bar Association("IBA") Rules for Taking of Evidence in International Evidence("IBA Rules"). This IBA Rules were revised in 2010. Designed to assist parties in determining what procedures to use in their particular case, IBA Rules present some of the methods for conducting international arbitration proceedings. Parties and arbitral tribunals may adopt IBA Rules in whole or in part - at the time of drafting the arbitration clause in a contract or once an arbitration commences - or they may use them as guidelines. They supplement applicable national laws and institutional or ad hoc rules. The IBA Rules were an ambitious undertaking, designed to overcome fundamental cultural differences relating to the taking of evidence under different national court systems. While it is difficult to assess how frequently the IBA Rules are actually adopted by parties, it is fair to say that they have had a considerable influence on the practice of taking evidence in international arbitration. This article mainly describes the essential provisions of IBA Rules, as revised in 2010, including but not limited to production of document, witnesses of fact, party-appointed experts, and tribunal-appointed experts. It also provides a comparison of relevant procedural rules of civil law and common law systems to each of the above mentioned provisions. It is important for arbitration practitioners to understand the differences in the taking of evidence under civil law and common law systems, respectively. This article will be helpful for practitioners and academics not only to understand the revised IBA Rules themselves but also to prepare for, and adequately deal with, the frictions that may arise as a result of the differences in approach for taking evidences. Indeed, so prepared, the arbitration practitioner will be able to anticipate the expectations, perceptions and the conduct of the parties, their counsel and the tribunal members.

• Journal of Arbitration Studies
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• v.28 no.4
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• pp.131-152
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• 2018

On October 31, 2013, the Singapore Court of Appeals handed down a landmark decision in the case of PT First Media TBK v Astro Nusantara International and Others [2013] SGCA 57. The case arose out of an arbitration in Singapore involving the Malaysian conglomerate Astro and the Indonesian conglomerate Lippo, which culminated in a USD 250 million award in favor of Astro. The final award was given to three Astro subsidiaries who were not parties to the arbitration agreement, but who were joined in the arbitration pursuant to an application by Astro. Lippo then applied to the Singapore High Court to set aside the enforcement orders. The Court of Appeals, however, reversed the High Court's decision, and found that Astro was only entitled to enforce the awards. Also, the Court of Appeals undertook a detailed analysis of the use of active and passive remedies to defeat an arbitral award at the seat and the place of enforcement, respectively. It also touches on the innovation of forced joinders of third parties in arbitrations, which have garnered significant interest in the arbitration community. This decision is therefore expected to have a significant impact on the practice of international arbitration, including in relation to how awards can be enforced or defeated, as the case may be.

• Journal of Arbitration Studies
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• v.30 no.3
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• pp.115-136
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• 2020

This article provides an overview of the state of affairs of arbitrator disclosure obligations in Korea. It shows how Korean courts will analyze arbitrator conflicts and obligations through an evaluation of Supreme Court judgments and a case-specific analysis of the recent Oilhub case and provides a comparative perspective through a review of recent Japanese case law. Although limited to domestic arbitrations, it assesses the various grounds that courts consider when determining impermissible arbitrator conflicts based on relations with parties and when an award might be set aside as a result. With the 2016 adoption of the KCAB Code of Ethics for Arbitrators and its rigorous standards, great clarity has been brought to the landscape. The Code of Ethics marks a significant milestone in enhancing the robustness of arbitrator disclosures and guaranteeing the fairness, integrity, and transparency of Korean arbitration practice and law.

• Journal of Arbitration Studies
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• v.19 no.3
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• pp.141-160
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• 2009

This article examines some factors that should be taken into consideration as the number of arbitrators to constitute arbitral tribunal, how to select them and the characteristics of arbitrators by their expert field, and the various problems that may arise in selection of arbitrators. When dispute parties select one arbitrator or a chairman of arbitral tribunal, they should consider the characteristic of case. When legal problem is more important, they should select a lawyer, whereas when trade practice is more important, they should select a businessman. Especially, when they decide to select a businessman as one arbitrator or a chairman of arbitral tribunal, they allow him not to write the reason of award if possible because he is lack of know-how to write it. Also, dispute parties should acquire the information of the main career and character of arbitrator, his experience of arbitration and so on before they select him.