• 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.9 no.1
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• pp.323-365
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• 1999

The digital revolution is happening much more quickly and Internet Commerce and Electronic Commerce is having a profound influence on the global trade and internal commerce, revolutionize the way of doing business, especially retail and direct marketing. Owing to Internet, an increasing share of business transactions occurs online. Electronic payment is essential for the smooth progress of the electronic commerce as electronic payment plays the important role in the electronic commerce, that is, the value transfer resulting from the electronic commerce. So far, there have not been a considerable emphasis on the risks residing in the electronic payment and money. So, this paper deals with the risks in the electronic payment and money, in particular technical risks and social risks, and the reliability-increasing schemes to prevent the risks in the electronic payment. The reliability-increasing schemes relate to the security of the electronic payment systems and certification authority and key management, transaction rules between the parties concerned in the electronic payment.

• Journal of Arbitration Studies
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• v.12 no.2
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• pp.221-262
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• 2003

In recent years, information technological revolution of using Internet in the Stock Market has shown reconsideration of Securities and Exchange Law. Since the 1998 Taipei Conference, ILA have studied upon it and presented 6th Interim Report during the 2000 London Conference. This paper summarizes a part of the 6th Interim Report. The Internet has created a medium to which traditional principles of jurisdiction may not have full relevance. To understand the jurisdictional issues posed by this new medium, we should first review the traditional principles of jurisdiction under international, U. S. law and Other Countries law. In previous reports, the general principles of jurisdiction in international law have been described. These principles are, however, difficult to apply in the context of Internet and other forms of computerized securities trading. Regulators all over the world are trying to address and solve jurisdictional issues raised by the Internet. The traditional rules of jurisdiction in international law, grounded as they are on a geography-based approach, may be in the process of being undermined by the Internet and other global networks allowing for remote access to information and to markets.

• Journal of Arbitration Studies
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• v.29 no.3
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• pp.23-38
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• 2019

This article aims to explore ways to prevent disputes arising from 'Origin Procedure' under FTAs through 'advance ruling system'. To achieve the aims of this article, this paper examines advance ruling systems operated by Korea and the United States to implement the Korea-US FTA, and analyzes whether the systems are realizing the original purpose of preventing disputes in terms of legal certainty and accessibility. The results show that the advance ruling system for origin in Korea has the same high level of laws and institutions as that of the United States. However, it is necessary to further provide institutional support for staffs that operate the system, so that expertise knowledge can be consolidated and accumulated. Also the accessibility of the system requires improvements.

• Korea Trade Review
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• v.42 no.2
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• pp.205-225
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• 2017

The study attempts to verify the case related to the notice of payment refusal by issuing bank regarding discrepancy in transport document under L/C(Letter of Credit) transaction. Considering the high portion of trade between Korea and China, Korean companies and banks in L/C transaction should be careful about many unpredictable situations. The case of this study is that Chinese seller(beneficiary) initiated a civil suit against Industrial Bank of Korea to Chinese court and Chinese courts in the first and second trials judged that the notice of payment refusal by Industrial bank of Korea doesn't satisfy Article 16, (c) (ii) (iii) in UCP 600. However, Industrial Bank of Korea implements the judgement even though the judgement is highly biased to Chinese seller. Considering the judgement by Chinese courts, the study suggests some countermeasures to Korean companies and banks which opened L/C. First, the issuing bank should describe the contents of discrepancy specifically based on Article 16, (c) in UCP 600. Second, it is necessary to insert a clause regarding governing law in the L/C contract like sales contract. Third, considering the biased judgement by Chinese court and difficulty in execution of foreign judgement in China, it is recommended to using arbitration as a method of dispute resolution such as ICLOCA and DOCDEX Rules which are international system operated by international instruments because it has legal effects to parties in L/C contracts if the issuing bank inserts arbitration clause in L/C.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.36
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• pp.111-140
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• 2007

This paper intends to review the qualifications of arbitrator, the disclosure of disqualifications by arbitrator, the challenge grounds of arbitrator, and the challenge procedure of arbitrator under the arbitration laws and rules. There are no provisions for the qualification of arbitrator in the UNCITRAL Model Law on International Commercial Arbitration. Under the UNCITRAL Model Law on person shall be precluded by reason of his nationality from acting as an arbitrators. Under the UNCITRAL Model Law when a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties. Under the UNCITRAL Model Law an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. Under the UNCITRAL Model Law the parties are free to agree on a procedure for challenge an arbitrator. Failing such agreement, a party who intends to challenge an arbitrator shall send a written statement of the reasons for the challenge to the arbitral tribunal within 15 days after becoming aware of the constitution of the arbitral tribunal or any circumstance that give rise to justifiable doubts as to his impartiality or independence. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. In conclusion, an arbitrator has a responsibility not only to the parties but also to the process of arbitration, and must observe high standards of conduct so that the integrity and must observe high standards of conduct so that the integrity and fairness of the process will be preserved.

• Journal of Arbitration Studies
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• v.22 no.2
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• pp.53-77
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• 2012

Competence-competence refers to an arbitratorpower to determine whether he or she has jurisdiction to decide a controversy. Although arbitrators power to rule on their own jurisdiction is generally recognized throughout the world, in the United States, neither the courts nor legislative bodies have recognized its significance or the reasoning behind its widespread adoption. Section 3 of the Federal Arbitration Act (FAA) is notorious among arbitration statues for its failure to incorporate competence-competence. When courts rule on an issue of competence-competence, it is referred to as a question of who decides the arbitrability of the case. In the United States, the use of competence-competence as a term of art is still limited to scholarly writings. The answer to the competence-competence inquiry is found in an interpretation of section 3 of the FAA which empowers the courts to decide arbitrability issues. The cases of the Supreme Court and most commentators interpreted sections 2 and 3 of the FAA as conferring issues of arbitrability on the federal courts, including the ability to rule on the validity and scope of the arbitral agreement. Traditionally, United States courts have denied the competence-competence to arbitral tribunal. Recently, however, they have confounded the rules by placing primary importance on the arbitration agreement between the parties. The Supreme Court, in a series of cases, has underscored the necessity of giving full effect to the intentions of the parties as expressed in their agreement to arbitrate. The result of the Supreme Court's emphasis on contractualism in determining the issue of arbitrability is most evident in the Courtdecision in the First Options case. Under First Options, courts are to decide arbitrability issues unless there is a clear and unmistakable contractual assignment of these issues to the tribunal itself. The Court is appraised that it has attempted to compromise between contractual freedom in the arbitration setting and the rule of law that is necessary in a society that depends on the concept of ordered liberty. In the decision in Howsam, the Court clarified the definition of arbitrability by attempting to draw a clear line between questions of arbitrability that are to be decided by courts and those matters that bear on the allocation of decisions between courts and arbitrators but are not questions of arbitrability.

• Journal of Arbitration Studies
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• v.10 no.1
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• pp.3-25
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• 2000

At its thirty-second session in 1999, the UNCITRAL had before it the requested note entitled "Possible future work in the area of international commercial arbitration." After concluding the discussion on its future work in the area of international commercial arbitration, it was agreed that the priority items for the working group should be conciliation, requirement of written form for the arbitration and enforceability of interim measures of protection. the Commission entrusted the work to the Working Group on Arbitration which held its thirty-second session at Vienna from 20 to 31 March 2000. The Working Group discussed agenda item 3 on the basis of the report of Secretary General entitled "Possible uniform rules on certain issues concerning settlement of commercial disputes : conciliation, interim measures of protection, written form for arbitration agreement." At its thirty-three session in 2000, the UNCITRAL had before it the report of Secretary General on agenda item 3 discussed by the Working Group. The Working Group discussed the issues relating to certain aspects of conciliation proceedings ; (1) Admissibility of certain evidence in subsequent judicial or arbitral proceedings ; (2) Role of conciliatior in arbitration or court proceedings ; (3) Enforceability of settlement agreements reached in conciliation proceedings ; (4) Other possible items for harmonized treatment : a) Admissibility or desirability of conciliation by arbitrators b) Effect of an agreement to conciliate on judicial or arbitral proceedings c) Effect of conciliation on the running of limitation period d) Communication between the conciliator and parties ; disclosure of information e) Role of conciliator. It was generally considered that decisions as to the form of the text to be prepared should be made at a later stage when the substance of prepared solutions would become clearer. However, it was noted that model legislative provisions seemed to be appropriate form for a number of matters proposed to be discussed in the area conciliation. There was general support in the Working Group for the proposition to perpare a legislative regime governing the enforcement of interim measures of protection ordered by arbitral tribunals. It was generally considered that legislative regime should apply to enforcement of interim measures issued in arbitration taking place in State where enforcement was sought as well as outside that State. It was generally observed that there was a need for provisions which conformed to current practice in international trade with regard to requirements of written form for arbitration agreement. The view was adopted by the Working Group that the objective of ensuring a uniform interpretation of the form requirement that responded to the needs of international trade could be achieved by : preparing a model legislative provision clarifying, for avoidance of doubt, the scope of article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration : and adopting a declaration, resolution or statement addressing the interpretation of the New York Convention that would reflect a broad understanding of the form requirement. There was general agreement in the Working Group that, in order to promote the use of electronic commerce for international trade and leave the parties free to agree to the use of arbitration in the electronic commerce sphere, article II(2) of the New York Convention should be interpreted to cover the use of electronic means of communication as defined un article 2 of the Model Law on Electronic Commerce and that it required no amendment to do that. The UNCITRAL may wish to consider to the desirability of preparing uniform provisions on any of those issues concerning conciliation and arbitration proceedings, possibly indicating whether future work should be towards a legislative text or non-legislative text.

• Proceedings of the Korean Institute of Intelligent Systems Conference
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• 2004.04a
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• pp.164-167
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• 2004

In the paper is proposed a hierarchical adaptive fuzzy controller for balancing and position control of the inverted pendulum system. Because balancing control rules of the pendulum and position control rules of the cart can be opposite, it is difficult to design an adaptive fuzzy controller that satisfy both objectives. To stabilize the pendulum at a specified position, the hierarchical adaptive fuzzy controller consists of a robust indirect adaptive fuzzy controller for balancing, a forced disturbance generator which emulates heuristic control strategy, and a supervisory decision maker for the arbitration of two control objectives It is proved that all the signals in the overall system are bounded. Simulation results are given to verify the proposed adapt i ye fuzzy control method.

• Journal of Arbitration Studies
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• v.20 no.3
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• pp.25-46
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• 2010

In spite of great interest and recent innovation of the legislative system in the Arbitration and other Alternative Dispute Resolution(ADR) system, In Japan there have been only a few case in which International commercial dispute was settled through the Arbitration compared to other countries. However, we can easily expect that foreign arbitral awards which need to be recognized and enforced in Japan will gradually increase and this makes it very important for us to review the Japanese legislative system regarding recognition and enforcement of foreign arbitral awards. In this paper, I focused on the relations between applicable laws(including convention) regarding recognition and enforcement of foreign arbitral awards in Japan and some issues concerning refusal of recognition and enforcement of foreign arbitral awards. Japan is a member state of several multilateral conventions concerning recognition and enforcement of foreign arbitral awards including the New York Convention of 1958 and at least 20 bilateral agreements which include provisions in relate to the recognition and enforcement of arbitral awards. Therefore there are some legal issues about the priority application between multilateral and bilateral agreements in relate to Article 7(1) of the New York Convention. In Japan, as I mentioned in this paper, there are incoherent opinions concerning this issue. To solve it substantially it would seem appropriate to build up concrete and explicit provisions concerning the application of priority between multilateral and bilateral agreements. On the other hand, in relate to the application between the New York Convention and National Law, it is necessary to take general approach regarding the priority application between Convention (Treaty) and National Law, considering the national application of conventions under the Constitutional System of each country. Among the grounds for non-recognition/enforcement, there are the ones that are decided under the law of the requested country, for instance, arbitrability and public policy. It would therefore be possible that some foreign arbitral awards would not be recognized in Japan especially relating to the arbitrability because its scope in Japan is not so large. Regarding the enforcement of awards annulled in their place of origin, some positive opinions in recent Japanese legal discussions, say that annulled awards should be enforced as a counter strategy of developed countries and judiciary discretion of the requested country would be needed. As mentioned in this paper, the recognition and enforcement of foreign arbitral awards is closely related to judicial policy of the requested country as the recognition and enforcement of foreign judgment is. Even though there existed uniform rules on recognition and enforcement of foreign arbitral awards like the New York convention, each country has different internal legal status of conventions under its own Constitutional System and tends to interpret the provisions based in its own profit. Therefore, it is necessary to review, in the light of conflict of laws, the national legislative system including legal status of conventions of the requested countries concerning recognition and enforcement of foreign arbitral awards.