• Journal of Arbitration Studies
• /
• v.31 no.2
• /
• pp.23-46
• /
• 2021

Sports disputes have specific characteristics compared to disputes that arise in the field of commerce. One particularity is the judicial system in which the CAS plays a key role as the International Supreme Court for sports-related matters. The CAS Code applies whenever the parties agree to submit a sports-related dispute to the CAS(Art. R27). Once the parties to the arbitration agreement have decided that the CAS Code should govern their proceedings. The parties' autonomy is, however, limited to the provisions of the CAS Code that provide for such a corresponding autonomy. The application of the mandatory rules contained in the CAS Code cannot be excluded. In CAS appeals arbitration proceedings, the Panel shall decide the dispute according to the applicable sports regulations and, subsidiarily, to the rules of law chosen by the parties(Art. R58). In international sports disputes, the uniform application and interpretation of the relevant regulations are essential. Therefore, Art. R58 should be applied as a mandatory rule without any changes. Regulations of the sports organizations are to be qualified as valid rules of law. CAS panels may also apply the so-called lex sportiva to the merits before considering statutory provisions of national jurisdictions. In this way, the specificities in (international) sports disputes can be taken into account without the need to further examine the application of national legal standards.

• Journal of Arbitration Studies
• /
• v.8 no.1
• /
• pp.221-241
• /
• 1998

Though the arbitration agreement is a means to resolve disputes autonomously in essence, the Principle of Parties Autonomy and the Principle of Free Contracting can not be applied infinitely without any limitations but subject to the Public Policy and the Compulsory Provisions as established by an interested country. Such principle of law is applied to international arbitration agreements as well, but their validity should be determined by different standards from those in domestic arbitration agreements, in consideration of their internationality. The essential effect of arbitration agreement is to exclude from the jurisdiction of State courts. Depending upon definition of the legal nature of arbitration agreement, the range and contents of the effect of such agreement will vary. Whether State courts can intervene in claims related to Compulsory Provisions is an issue at the level of legislation policy which can not be easily concluded. But, the applicability of Compulsory Provisions can not serve as an imperative ground to deny the eligibility of claims for arbitration, so far as such claims can be disposed of by the parties. On the other hand, it is reasonable to view the arbitration agreement as a substantive contract in its legal nature enabling the authority for dispute resolution to be delegated to arbitrator, so that the Principle of Parties Autonomy can be widely applied throughout the arbitration procedure as well as with other legal acts on private laws. With this, the parties can enjoy an arbitration award appropriate for characteristics of a specific arbitration agreement, thus resulting in facilitating the use of arbitration procedure for international trade activities. To conclude, the Public Policy and the Compulsory Provisions as limitations on arbitration agreement should be applied to such an extent that they can protect States basic moral faith and social order.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.47
• /
• pp.25-48
• /
• 2010

The principle of parties' autonomy is one of general and dominant principles in an international trade contract. When we consider the determinants of negotiation outcomes, the negotiation is affected its result by their culture and custom. A negotiation has extensively been used a lot as a business process. As we negotiate with our clients, we have to check a lot of factors like strategies, their behaviors, culture shock and custom. That why most people have their different life and circumstance. The same words which are used its contract have several meaning. Because the words are influenced by culture and own custom. Also most people abide by their social pattern. Each culture in the world follows its own customs and traditions. Therefore, when we have the negotiation of trade contract, we have to think these factors. Then the negotiation is leaded very successful This dissertation examines the effects of the negotiators' personality and different culture and custom. On the point of a negotiating power, contracting parties are affected a lot by their usage. The culture which is influenced by contracting parties is possible to apply as a key point. So, this study will be analyzed these factors.

• Journal of Arbitration Studies
• /
• v.16 no.2
• /
• pp.89-120
• /
• 2006

If the existence and effect of the arbitration agreement becomes an issue in international business transactions, it is the key point how we shall determine the applicable law by national rules for the conflict of laws, or by other methods. The argument in determination of the applicable law to the existence and effect of the arbitration agreement is related to regal nature of the arbitration agreement. As there are foreign factors in international arbitration, therefore we must consider such an aspect. Besides, we have to examine whether the general theory of contract is universally applicable to the arbitration agreement. Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the arbitration agreement. However, it is a difficult problem to recognize the applicable law chosen by the parties, whether it is based on any regal standard(for example New York Convention or the private international law or the essential quality of the arbitration agreement). In the light of the actual transactions, when the parties don't make a choice of the applicable law expressly, it will finally come down to presuming the party's implied intent. Nevertheless, finding the implied intent is a difficult problem. Some argue that we shall presume the choice of applicable law by an objective standard such as a place of arbitration, to prevent too much expansion of the scope of the recognition. But we need to review that this interpretation harmonizes with the principle of party autonomy. Especially, if we desire to detect the vital point where it is most closely linked to the arbitration agreement, we have to inquire how we will decide such a relation by means of any standard. However, as the existing Arbitration Act doesn't offer the solution to these issues, therefore we have to settle these problems through the development of adjudications and theories.

• Journal of Arbitration Studies
• /
• v.26 no.1
• /
• pp.3-27
• /
• 2016

There is a need for disputes in sports to be settled by arbitration rather than a court ruling, taking the unique characteristics of sports into consideration. Arbitration is a form of alternative dispute resolution (ADR). A dispute resolution system is regarded as: an arbitrator is selected by the agreement between the parties, and a binding decision is made, which the parties obey, consequently resulting in a final resolution. To resolve a dispute upon arbitration, there must be an arbitration agreement upon the free will of the parties. In relation to the arbitration agreement, however, there are some cases in which sports organizations have an arbitration clause in the articles of association, regulations or player registration application that call for settling disputes by arbitration. In such cases, the validity of the arbitration agreement may create doubt whether or not this sort of arbitration has been made by mutual agreement. Consequently this is required to be legally examined. The activities of a sports organization are recognized as part of private autonomy, and they include even the rights that establish regulations or rules. Nonetheless, the powers that such sport organizations are able to establish are not allowed without limit. However, sports activities and autonomy shall be protected as themselves. Therefore, if we give priority to arbitration upon the independent arbitrator and fair process by establishing an independent arbitral organization in charge of sports disputes to handle the effective resolution of disputes and protect sports autonomy and ask for a court decision if one party disobeys the arbitration, or the sports arbitration prepositive principle, it seems helpful to resolve the unfairness of compulsory jurisdiction and the clause for sports arbitration and protect the player's right of choice and of claims for trial.

• Journal of the Korea Society for Simulation
• /
• v.8 no.1
• /
• pp.89-99
• /
• 1999

The major objective of this research is to propose a design architecture for autonomous defense systems for supporting highly intelligent behavior by combining decision, perception, and action components. Systems with such high levels of autonomy are critical for advanced battlefield missions. By integrating a plenty of advanced modeling concepts such as system entity structure, endomorphic modeling, engine-based modeling, and hierarchical encapsulation & abstraction principle, we have proposed four layered design methodology for autonomous defense systems that can support an intelligent behavior under the complicated and unstable warfare. Proposed methodology has been successfully applied to a design of autonomous tank systems capable of supporting the autonomous planning, sensing, control, and diagnosis.

• Journal of Arbitration Studies
• /
• v.19 no.3
• /
• pp.179-198
• /
• 2009

This paper aims at assessing reasonableness for restraining the independence principle in the operation of documentary credit in case of the illegality appeared in the underlying transactions. It has been a major rule under the independence principle to keep the credit operation free from the defences made by the issuing bank and/or credit applicant with a view to prevent the payment as specified under the credit. And also, it is generally accepted in the international commercial community to examine a presentation to determine, on the basis of the document alone, whether or not the documents appear on their face to constitute a complying presentation. Even though these two essences are major rules in the credit operation, if a presentation is made with the documents forged or materially fraudulent, the issuing bank can refuse to pay the documents in respect of fraud rule based on fraud exception for which a court of appropriate jurisdiction would enjoin such honour. Now we have newly come to another situation to determine whether or not we have to apply the same as fraud rule which is applicable to the illegality in the underlying contract under the new conception of illegality principle based on illegality exception. English Commercial Court handled the illegality case under the case of Mahonia Ltd., v. JP Morgan Chase Bank in 2003 and Justice Colman decided that issuing bank can rely on illegality affecting a letter of credit as an excuse for failure to pay. This judgement brought about the acceptance of illegality principle based on illegality exception as a defence to payment under a letter of credit as far as the illegality concerned in the underlying transactions. It is noticeable that this case will affect our international commercial community more to rely on the illegality in the underlying transactions as a good issue to stop payment for the issuing bank in the L/C operation.

• Journal of Arbitration Studies
• /
• v.18 no.3
• /
• pp.3-22
• /
• 2008

The purpose of this article is to make research on the meaning and function of the place of arbitration for, the international commercial arbitration. For this purpose is to analyse regal issue the meaning and function of the place of arbitration on the international commercial arbitration relating to the arbitration law and the recognition and enforcement of foreign arbitral awards. In this Article is dealt with Art. 2 para. 1 of the Korean Arbitration Act(KAA). The KAA corresponds with the connection to the place of arbitration, the internationally prevailing 'the principle of territoriality'. The place of arbitration is therefore great practical relevance, as there is not only the existing legal supplements on the arbitration procedure applies, but also in the state courts rule for the support and control of the tribunal are responsible. In this context, this article first intends the importance of the place of arbitration for determination of the applicable procedural law. Secondly, this article intends the importance of the place of arbitration for the recognition and enforcement of foreign arbitral awards under "the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards(New York Convention)". In conclusion, this article stresses, that the place of arbitration setting under Article 21 para. 1 KAA determine not only the applicable arbitration law, but also the jurisdiction of state courts in lawsuit for repeal of arbitration and qualification as a domestic or foreign arbitration award.

• Journal of Korean Philosophical Society
• /
• v.144
• /
• pp.83-111
• /
• 2017

The purport of this essay is to examine the possible compatibility of liberalism and perfectionism. Liberalism is typically considered as anti-perfectionism. So communitarian critique of liberalism focused on the effects of its anti-perfectionism. But liberalism could be interpreted as compatible with perfectionism. Joseph Raz attempts to develop and defend "perfectionist" liberalism. He rejects anti-perfectionist "neutrality" and claims that the goal of political action is to encourage pursuit of what is truly good and discourage pursuit of what is morally unworthy. Despite this strong perfectionist claim, Raz's political philosophy gives pride of place to individual liberty, or autonomy, which he considers to be intrinsically valuable. One exercises autonomy in choosing among a plurality of human goods. Nonetheless, Raz forthrightly denies the value of autonomy used to choose what is morally bad and says that society has no reason to protect worthless, much less morally evil, options. Raz is more conventionally liberal, however, in espousing a version of J. S. Mill's "harm principle", arguing that a due regard for autonomy rules out government use of coercive means to discourage "victimless" immoralities. However, there are some serious questions about whether Raz's strong perfectionism can support his principled rejection of "morals legislation". I think that if his strong perfectionism could be a little "weakened" and his autonomy could be interpreted as having only formal value rather than having intrinsic value, then his perfectionism could be compatible with liberalism.

• Korean Association of Arts Management
• /
• no.53
• /
• pp.71-99
• /
• 2020

This study focuses on the case of the National Museum of Modern and Contemporary Art, Korea (hereafter MMCA) that has faced the issue of securing autonomy as an art institution in association with the neoliberal logic of economy as part of globalization. The MMCA was opened with limited operational autonomy due to the government's development-driven national system and bureaucratic perspective. Since being selected as an institution subject to a range of restructuring consequent to the IMF crisis in 1997, the MMCA is being assessed for its operational autonomy since then. This paper examines the socio-cultural background of the implementation of the Korean type of 'Executive Agency' and 'Non-Departmental Public Body'. Furthermore, regardless of the result of either implementation or withdrawal after the projects, this paper explains how these administrative reforms lead the conflicts between stakeholders, which would promote the MMCA's autonomy. As a result, the institutional restructuring process based on the neoliberal perspective might result in the operational dilemma that must simultaneously fulfil the publicness in a different context. Moreover, unlike the original intent to establish a performance-based system based on the principle of competition while minimizing government intervention, this study illuminates that the influence of the nation(or government) as the actual agent of the projects may become permanent. It implies that since the establishment and development project of MMCA has initialized the concept of statism based on legal authority, the operational autonomy of the MMCA which is premised on the reinforcement of expertise and publicness cannot be prioritized over the direction and control of the government.