• 한국중재학회지:중재연구
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• 제19권2호
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• pp.3-26
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• 2009

This paper is to research on the role of party autonomy in the decision of applicable law for the arbitral proceeding, arbitral award and arbitration agreement, in the decision of the place of arbitration, in the composition of arbitration tribunal, and the choice of arbitral proceedings. The principle of party autonomy is fundamental to arbitration in general and to international arbitration in particular. Generally the tenn of party autonomy is used as the autonomy of the parties to decide all aspects of an arbitration procedure subject only to certain limitations of mandatory law. Party autonomy permits the parties to a commercial arbitration to choose the laws and make the rules which govern the arbitral proceedings. Party autonomy allows the parties freedom to choose the applicable laws for the arbitral proceeding and the place of arbitration. Party autonomy is recognized in relation to the choice of law for the merits of the dispute as well as for the arbitration agreement and the arbitration procedure. On the basis of the recognition of party autonomy in international treaties, national legislation and court decisions, arbitral practice has generally accepted and enforced party autonomy both regarding the procedure and the applicable substantive law. All modern institutional rules of arbitration follow that line. Today it is recognized by national legislators all over the world to the effect that the jurisdiction of national courts can be excluded by arbitration agreement and that the parties may choose the law applicable to arbitral proceedings. Limits on party autonomy are imposed by mandatory provisions of international or national law or of institutional arbitration rules regarding the procedure. Mandatory laws at the place of the arbitration or under any procedural law chosen by the parties may restrict party autonomy. These mandatory laws usually take the form of public policy considerations in the arbitration. Limitations on party autonomy have been reduced more and more, and the trend of modern national as well as international legislation on arbitration leans clearly in the direction of a maximum of party autonomy.

• 한국중재학회지:중재연구
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• 제25권3호
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• pp.33-58
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• 2015

Arbitration clauses or institutional arbitration rules rarely, if ever, specify the law applicable to the arbitration agreement. A wide range of laws may thus govern this question, such as the law at the place of arbitration, the law where the agreement or the award is enforced or the law of the main contract between the parties. It is also conceivable that international uniform law or soft law may play a role. Tribunals and courts seized with this question must consequently decide which of these various laws shall apply to verify the existence and validity of the arbitration agreement. This paper picks up on this controversially debated conflict of laws issue. At times, this debate is characterized by a strong divide between arbitration and international trade law practitioners. But are the different approaches really leading to diverging results in arbitral practice?

• 무역상무연구
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• 제38권
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• pp.155-180
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• 2008

The purpose of this paper is to examine the major elements of Arbitration Clause in international investment contracts and to help the investor, especially foreign investors, considering these elements when they draft the contracts. First of all, to describe the extent of the arbitrable issues broadly is very important by using the phrase such as "disputes in connection with". Furthermore in order to be enforceable, the issues must be a subject-matter to be submitted to arbitration in accordance with the laws of the place of arbitration and the law application to the merits of the disputes (N.Y. Convention, Art. II). Second, the appointment of the arbitrators usually shall be based on the principle of freedom of contract. If the parties do not agree on the appointment, it is decided in accordance with the arbitration rules of the institution by the tribunal. Third, the procedural rules of the arbitration are the arbitration rules of the arbitration institution in case of institution arbitration, unless otherwise agreed. Forth, what is the most importance element of Arbitration Clause is the place of arbitration. In this case, also the principle of freedom of contract has priority. Unless otherwise agreed, Washington is the place of arbitration in case of ICSID Arbitration, but in case of ICC Arbitration, neutral third country may be the place of arbitration. However in case of ad hoc arbitration, both parties should indicate the place. If not, the whole arbitration may be paralysed by an uncooperative party. Besides the major elements, I examined the relation between the arbitration clause and award enforcement in terms of sovereign immunity. The enforcement of awards in the field of state contracts many encounter the problem of the sovereign immunity, which means that the State itself or the State enterprise is the contract partner. To avoid the this problems, it is advisable for the parties insert the clause such as ICSID Model Clause XIX.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.353-375
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• 1998

This study is focused on the rules for resolving documentary credits disputes. First, International Chamber of Commerce published Documentary Credit Dispute Expertise Rules on October 1, 1997. The DOCDEX Rules are the International Chamber of Commerce(ICC) response to a clear call from the international banking community for a rapid, cost effective, expert-based dispute resolution mechanism for documentary credit practice, including bank-to-bank reimbursement issues. Next, The International Center for Letter of Credit Arbitration was established in September 1996. The Center was founded as a result of an initiative from within the letter of credit community and has been co-sponsored by the United States Council on International Banking(USCIB) and the Institute of International Banking Law and Practice Inc. In September, ICLOCA adopted its "Rules of Arbitration for Letter of Credit Disputes." Therefore, parties to letter of credit disputes should choose a appropriate dispute resolution mechanism under the circumstances in the future.

• 한국중재학회지:중재연구
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• 제15권1호
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• pp.147-178
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• 2005

Arbitration agreement is an agreement by the parties to submit to arbitration all or certain dispute which have arisen or which may arise between them. Arbitration agreement is an important factor to judge the existence of the mutual arbitration agreement and it should be the object of examination before anything else to judge the existence of the mutual arbitration agreement. Recently the Supreme Court seemed to make negative position about validity of selective arbitration agreement. However theoretically and scientifically selective arbitration agreement is a valid arbitration agreement. Examine selective arbitration agreement throughly according to the autonomy of the parties rules, wide jurisdiction rules of interpretation, principle of kompetenz-kompetenz, and moses cone presumption rule of interpretation, selective arbitration agreement is a valid arbitration agreement. Also analyze precedents in accordance with validity of selective from all angles which are voluntary agreement of the parties, agreement in writing, principle of private autonomy, comparative study of domestic and foreign precedents and mutual relation of arbitration and trial, selective arbitration agreement based on principle of private by the parties is considered a valid arbitration agreement. Courts should actively accept selective arbitration agreement as a valid arbitration agreement to make foreign companies prefer arbitration in Korea and in oder for arbitration to be widely used in disputes.

• 한국중재학회지:중재연구
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• 제14권1호
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• pp.103-132
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• 2004

This paper suggests the establishment of construction arbitration tribunal in The Korean Commercial Arbitration Board or the construction arbitration institution under the Ministry of Construction for effective system of Construction Arbitration. Our conclusion tells that it is desirable to establish construction arbitration institution under the Ministry of Construction upon the result of analyzing some factors such as participation of construction workers, sophistication of construction field. In contrast, it is more desirable to establish the construction arbitration tribunal in The Korean Commercial Arbitration Board when we consider the feasibility, sophistication of ADR, organization, rules, arbitrator availability, internationalization Therefore, our final suggestion is to establish construction arbitration tribunal in The Korean Commercial Arbitration Board for effective system of Construction Arbitration. More detailed are as follows: . Establishment of the committee for resolution of construction disputes consisting of experts and specialists from construction-related institution, union, law firm and universities. 1 The committee manages finance, rules on construction arbitration and arbitrator members. 1 Establishment of intermediation team, construction arbitration team, housing arbitration team, real estate arbitration team under the construction arbitration tribunal . Establishment of a committee of arrangements consisting of experts and specialists from The Korean Association of Arbitration Studies, Korea Arbitrators Association, The Korean Commercial Arbitration Board, The Construction Association of Korea in order to accomplish effective system for construction arbitration.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.25-44
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• 2009

The purpose of this parer is to examine the specifies of Institutional Arbitration and Ad Hoc Arbitration. The court prefers the institutional award in the enforcement rather than the award issued under the name of arbitrators alone. For example, the ICC Court of Arbitration scrutinizes awards for completeness, adherence to the ICC Rules and internal consistency, which since the court assurance for enforcement. In terms of arbitration costs, for which the ad hoc arbitration is considered to have comparative advantages, the institutional arbitration may not be more expensive than ad hoc arbitration, as in most commercial case, the administrative fees are insignificant. This paper suggests the standard or model arbitration clauses in institutional and ad hoc arbitrations. These Clauses contains the minimum elements necessary to render the arbitration agreement enforceable and effective. So both parties may add the specific contents such as the number of arbitrator, the place of arbitration and the language. Especially, in Ad Hoc Arbitration without designated set of rules, more clean clause for appointing arbitrators will be needed.

• 무역상무연구
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• 제55권
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• pp.63-93
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• 2012

The purpose of this paper is to examine the consideration factors, from both parties' perspective, to select the most appropriate arbitral institution when they inset an arbitration clause in their contract. Accordingly, the author analyzed the advantages of institutional arbitration compared to non-institutional arbitration. The typical advantages of institutional arbitration would include: $\bullet$ Benefits of using an established set of rules $\bullet$ Services provided by the institution $\bullet$ Low risks of obstruction $\bullet$ Enhancement of the possibilities of enforcement $\bullet$ Forecast of the estimated cost $\bullet$ Specially useful for existing disputes Next, this author examined the consideration factors when selecting the institution in respect of the following factors: $\bullet$ Institution's arbitration rules $\bullet$ Institution's rule regarding the appointment of arbitrators $\bullet$ Ability of administrators of each institution $\bullet$ Reputation of the arbitral institution and the likability of enforceability of its award $\bullet$ Cost $\bullet$ Choice of the arbitral institution in relation to the choice of place of arbitration Finally, this author reviewed Model Arbitration Clause of major international or local Institutions, including ICC, AAA, LCIA, KCAB, CIETAC, ICSID and WIPO. Further examination was given to the selection of the numbers of the arbitral tribunal, the seat of arbitration and the language of arbitration, according to the designated articles in each institution's arbitration rules.

• 한국중재학회지:중재연구
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• 제21권2호
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• pp.47-64
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• 2011

The China International Economic and Trade Arbitration Commission(CIETAC) released online arbitration rules which apply the resolution of disputes over electronic commerce transactions, as well as other economic and trade disputes in which the parties agree to do. The evidence submitted by the parties may be electronic evidence created, sent, received or stored by electronic, optical or magnetic means. Electronic evidence with a reliable electronic signature shall carry the same effect and probative force as a document with a hand-written signature. Where a case is tried in a tribunal, the arbitration tribunal shall conduct an online trial hearing using internet video conference or other electronic or computer communication means. Unless the parties have another agreement, summary procedure shall apply to cases where the amount in dispute exceeds RMB 100,000 but no more than RMB 1 million, or where the amount in dispute exceeds RMB 1 million and a party submits a written application for summary procedure after obtaining the written consent of the other party. Unless the parties have agreed otherwise, fast-track procedure shall apply to cases where the amount in dispute does not exceed RMB 100,000 or where the amount in dispute exceeds RMB 100,000 and a party submits a written application for fast-track procedure after obtaining the written consent of the other party. Notable features of the Online Rules are as follows; first, there is not detailed consideration for online arbitration. Second, communications between the parties and the tribunal are allowed only through the Secretariat. Third, elaborate provisions regarding the electronic submission and transmission of documents is provided for. Forth, various factors must be considered by the tribunal in deciding the evidence's reliability. Fifth, reasonable endeavours is levied on CIETAC to keep data communications secure and encrypted. Sixth, the tribunal has the right to investigate and collect relevant evidence. And finally different procedures are provided for in consideration of the various types of E-commerce.

• 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.