• 무역상무연구
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• 제63권
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• pp.89-110
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• 2014

Since the CISG came into force in 1 January 1988 in China, many cases as well as arbitral awards have been decided under the CISG during the period of about 30 years of its application in China. After the CISG entered into force and before the handovers of HK in 1997, the China courts or CIETAC applied CISG to the disputes between China party and HK party in many cases, even PRC reserved CISG article 95. On the Contrary, after the handovers of HK in 1997, the China courts or CIETAC did not apply CISG to the disputes between them in many cases with the reason that China filed an CISG article 95 declaration and HK is not a contracting unit. The matter is the China's contract law and civil law have convinced that the CISG is highly applicable as "International Practice" under the China law in appropriate circumstances, so sometimes China courts or CIETAC applied CISG based on the China law not CISG itself. As a result, some interpretation made by the China court or CIETAC might not comply with the international character of the CISG and to some extent even impaired the uniform application of the CISG. So the author expects more and more valuable cases to be reported which will be good for its further development.

• 한국중재학회지:중재연구
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• 제23권1호
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• pp.177-200
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• 2013

Recently, many international arbitration institutions have responded to the business requirements of their users and have revised their rules to enhance the time and cost efficiency. Korean Commercial Arbitration Board (KCAB) revised the international arbitration rule in 2011, introducing new arbitration mechanisms like the expedited procedure. Also other Asian arbitration institutions introduced the expedited procedure in their international arbitration rules. Now expedited procedures are regarded as a very attractive system in the field of international arbitration. Accordingly, this paper reviewed the expedited procedures of four Asian countries, including China(CIETAC), Hong Kong (HKIAC), Singapore(SIAC) and Korea(KCAB). The purpose of this study is to find out meaningful implications to improve the Korean system. Based on this review, some recommendations are suggested as follows. First, the scope of the expedited procedure has to be adjusted upward than the current 200 million won. Second, there should be a fee schedule only for the expedited procedure. Third, in case of small amount international disputes, written examination should be more used in the expedited procedure. Finally, KCAB should make strong efforts to improve the awareness and usage of the expedited procedure in Korea.

• 한국중재학회지:중재연구
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• 제26권1호
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• pp.107-134
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• 2016

국제상사중재는 <국제물품매매계약에 관한 유엔협약>을 적용하는 중요한 영역이고 본 협약이 국제 통일법적인 역할을 발휘하는데 중요한 지원을 제공하고 있습니다. 중국국제 경제무역중재위원회(CIETAC)는 협약을 가장 많이 적용하여 중재사건을 해결하는 중재위원회이다. 중재재판소는 체약국 법원과 마찬가지로 협약내용을 정확하게 이해하고 정확하게 적용함으로써 사건재판의 질을 제고하고 판결의 공신력을 강화한다. 하지만 중재재판소의 민간성과 독립성으로 인하여 재판소가 협약을 적용하는 법률기초는 소재국 국내 중재법, 중재절차 및 국제중재관례이고, 소재국이 협약을 이행함에 있어서의 국제조약의무가 아니다. 협약과 중국 계약법은 CIETAC 중재재판소가 주요하게 적용하는 법률이다. 중국 계약법 규정에는 협약 제75조, 76조의 내용에 해당하는 차액배상제도가 존재하지 않기 때문에, 판사와 중재재판소는 손해배상금을 확정함에 있어서 보다 많은 자유재량권을 가지므로 협약을 적용하는 것과 중국 계약법을 적용하는 것은 당사자에게 서로 다른 영향을 일으킨다.

• 한국중재학회지:중재연구
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• 제16권3호
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• pp.91-125
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• 2006

The arbitration rule of CIETAC was vastly revised and was put in force on May 1, 2005. By its revision, China has improved its arbitration system. Chinese arbitration law had many problems when it was enacted in 1995, but the problems could not be avoided because of the poor surroundings for arbitration in China. As China has not had much experience in operating its legal system effectively, and also has little in the way of studies on legal theory that would allow it to deal with its laws in a flexible manner, authorities usually wait to revise a law until enough relevant experience has been accumulated. Therefore, during the 10 years since its enactment, China has resolved the problems within its arbitration law through revision of arbitration rule rather than by revision of the law itself. As this law is a basic one in ruling the arbitration system in China, there are some limitations as to how far the system can be developed through revision of arbitration rule alone. In spite of the limitations, the revision in 2005 contributed a great deal to resolving the existing problems within Chinese arbitration law. The biggest problem in the arbitration law is the Chinese arbitration law that restricts party autonomy. With the revision of the arbitration rule, many problems concerning party autonomy were circumvented. This occurred because the arbitration rule now provides parties the opportunity to choose arbitration rule other than the CIETAC arbitration rule, and even allows parties to agree to amend articles in the CIETAC arbitration rule -- a very important revision indeed. In addition to party autonomy, there are other improvements for example, there is an enhancement of the independent character of the CIETAC, clearing of jurisdiction, easing in the formation of arbitration agreement, improvement in the way arbitrators are chosen, and enhancement in the cultural neutrality of the arbiter. Problems still remain that can only be solved by revision of the arbitration law itself. These problems relate to the governing law of the arbitration agreement, the collection of evidence, custody of property, selection of chief arbiter, interlocutory awards, etc. In addition, some non-legal problems must also be resolved, like the actual judicial review of arbitration awards or difficulties of executing arbitration awards.

• 한국중재학회지:중재연구
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• 제23권4호
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• pp.191-209
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• 2013

The amount of international trade conducted through Hong Kong (HK) is increasing, thus rendering the legal framework governing contracts of sale between Mainland China (China) and HK is of particular importance. The status of HK under the CISG is currently unclear, however. First, the CISG entered into force in China in 1988. This important development had no legal effect for HK though as China lacked the power to enter into international conventions for HK. Second, the "Letter of Notification" deposited to the Secretary-General of the UN referred a list of treaties to be applied to HK, taking effect from July 1, 1997. This list, however, made no mention of the CISG. Third, China made a reservation in Article 95 of the CISG. Pursuant to Article 1(1)(b) of the CISG, the CISG cannot apply to HK. As a result, the Chinese Arbitral Tribunal apply the Chinese law according to the closest connection principle with the contract. In this case, attention must be given to the different result to which the CISG is applied. Liability for damages pursuant to the Chinese Contract Law (CCL) is just the same as Article 74 CISG, but CCL does not govern the case with substitute transaction and without substitute transaction when the contract is avoided. Therefore, the contract should be governed by the CISG from a business perspective when a contract is concluded between China and HK; otherwise, a promisee could not be fully compensated for all loss incurred.

• 한국중재학회지:중재연구
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• 제24권4호
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• pp.29-47
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• 2014

In recent years, with the rapid development of electronic commerce, companies engaging in e-commerce want to take advantage of fast and easy way to solve ever-growing disputes online. South Korea's e-commerce disputes are mainly solved by mediation process of Korea E-commerce Mediation Committee. The whole process of online mediation can be carried out by the network, with the advantages of high efficiency and speed. On the other hand, the introduction of CIETAC's online Arbitration Rules in China meets the actual needs. Especially the requirement of hearing trials' procedures should be easier and faster, making the dispute can be resolved in a short time. Furthermore, the whole process from applying to ruling is conducted online, which meets the needs of e-commerce business that want to solve the disputes faster and more efficient. In addition, the cost of online arbitration is much lower than the average arbitrations. The implementation of the CIETAC's Online Arbitration Rules, will further promote the development of e-commerce in China. With the increase of trade volume between China and Korea, the e-business are also increasing. Although South Korea has not yet implemented online arbitration until now, CIETAC's effort for combining arbitration and mediation have good implications for development Korea's e-commerce online dispute system to promote e-Commerce between Korea and China.

• 한국중재학회지:중재연구
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• 제20권2호
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• pp.199-225
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• 2010

This study investigates the characteristics of local arbitration committees in China based on arbitration institution evaluation model. Most of the literature on Chinese arbitration committees only focuses on CIETAC. However, the promulgation of 1994 Chinese arbitration act allows local arbitration committees to deal the arbitration cases related with foreign element. Before 1994, only CIETAC and CMAC handle the arbitration cases related with foreign element. For the evaluation of the local arbitration committees, this study establishes the arbitration institution evaluation model. This model has seven evaluation criteria: accessability, independence, neutrality, rapidity, economy, professionality, and extent of enforcement. Our findings are as follows. First, Chinese local arbitration committees have the strengths in the fields of accessability, economy and rapidity. However, they are deficient in the area of neutrality, professionality, and independence. Second, the spatial distribution of Chinese local arbitration committees is not equal in China. The number of local arbitration committees is big in the high growth region such as Shandong province. On the other hand, the number of local arbitration committees is small in the economically stagnant area. Third, the size and activity of local arbitration committees are various. Some of them are very active in dispute resolution through arbitration in China. For example, Beijing Arbitration Committee(BAC), Wuhan, Quangzou Arbitration Committee play the important role in dispute resolution through arbitration. However, the large part of local arbitration committees is financially weak and depend on the local government's financial support.

• 무역상무연구
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• 제51권
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• pp.133-158
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• 2011

The purpose of this study is to analyze one of CIETEC(China International Economic and Trade Arbitration Commission) Award on the dispute arising from Cotton Sale Contact which deals with damages and reduction of the price. Especially this case focused on the effect of reduction of the price to damages. The purpose of damages is to place the aggrieved party in as good a position as if the other party had properly performed the contract. So court costs and attorney's fee should be regarded as the loss, because these are caused by consequence of the breach which is recoverable. With the same reason, overpaid taxes should also regard as the loss. It is not impossible, however, to claim both damages and reduction of the price for same loss at the same time. It means buyer could not claim damages for the same loss, once he already claimed reduction of the price. So Korean companies should consider which remedy is proper to himself under the circumstances. He should choose reduction of the price when market price is down. In case of rising market price, he should consider follows: first, it is better to choose damages based on current price(Art.76), if upswing of non-conformity price is higher then upswing of market price. Second, it is better to choose general rule for measuring damages(Art.74), if upswing of market price is higher then upswing of non-conformity price.

• 한국중재학회지:중재연구
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• 제21권1호
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• pp.183-213
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• 2011

China and North America have been South Korea's biggest trading partner long time. As the volume of trade has been increasing, the disputes between Korean companies and Chinese Companies and between Korean companies and North American Companies have been increasing. If these disputes are settled by Arbitration, the parties appoint arbitrators who are empowered to proceed the arbitration procedure and have a power to render an arbitral award. Accordingly, it is very important for the parties to select who is an arbitrators in Arbitration. But if the parties doubt their arbitrator(s)'s fairness and independency, they can discharge them in accordance to law and arbitration institute's rules. In comparison with arbitrator system for way of selection and discharge among Korea, China and North America, some differences are found. First, if parties fail to appoint co-arbitrators or the presiding arbitrator by a mutual agreement, the court has the right to appoint them or him in Korea and North America whereas the Chairman of CIETAC choose him in China. Second, the authority to decide whether arbitrator is discharged owing to his fairness and independency, depends on arbitration institute and court in Korea and North American whereas it depends on the Chairman of CIETAC only.

• 한국중재학회지:중재연구
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• 제15권2호
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• pp.93-123
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• 2005

As the international commercial transaction has drastically grown up with the mainland China, commercial disputes that are required to settle through ADR have tremendously increased during the last decade. Since China has not been fully exposed to the Free World for a long period of time, there would have been a great amount of misunderstanding about their competency and integrity to deal with internationally oriented commercial transactions with a view to internationally acceptable manner. This arbitration case was related to the contract in dispute of C&A Inc. as the importer v. China XX Importation Co. as the exporter for the sale of Silicon Metal. But after the contract were formed, exporter(respondent) declined to deliver the goods under the contracts because the market price of Silicon Metal increased according to the argument of the importer(claimant). Importer had to purchase alternative goods from other companies to substitute for the goods subject to the contracts in dispute. Importer purchased silicon metal of the same quality as under the contracts from two other Chinese companies as the necessary measure to mitigate the loss, paying prices higher than the contract price. Since exporter had breached the contracts, importer's loss should be compensated by the exporter as the Arbitration Tribunal decided for supporting importer's claim of loss for the substitute goods. This study is aiming at analyzing the rationale of the arbitral awards made by the Shanghai Commission in terms of (l)Place of Arbitration, (2)Applicable Law, (3)Validity of the Contracts, (4)Doctrine of Frustration, (5)Responsibility for the Mitigation of Damage by the Importer.