• Journal of Arbitration Studies
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• v.15 no.2
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• pp.61-91
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• 2005

It is well recognized that the availability of prompt, effective and economical means of dispute resolution is an important element in the orderly growth and encouragement of international trade and investment. Increasingly, ADR(Alternative Dispute Resolution) including arbitration and mediation, instead of litigation in national courts, has become the preferred means of resolving private international commercial disputes. Under the situation, efforts for settlement of trade and investment disputes by ADR have been made between Korea and China through trade and investment agreements and arbitration agreement. Judging from the importance of economic exchange between Korea and Qingdao including Shandong Province, The Korean Commercial Arbitration Board(KCAB) and The Qingdao Arbitration Commission(QAC) should strengthen mutual cooperation to develop efficient methods of resolving commercial disputes arising between the two countries and to assist parties in solving those disputes through conclusion of arbitral agreement. Recently, efforts for conclusion of a Korea-China-Japan Free Trade Agreement(FTA) received strong support at Korea-Japan and Korea-China Summit Meeting held on June and July, 2003 respectively. If the conclusion of FTA among the three countries would be realized, it would promote regional trade and investment, contributing to economic growth in the Northeast Asian region. Under the circumstances, the key arbitral institutions including KCAB and QAC should consider to take the initiative in setting up tentatively called ${\ulcorner}$Joint Arbitration Center for Northeast Asia${\lrcorner}$ for which the CAMCA of NAFTA will be the good example.

• 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 Korea Trade
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• v.24 no.6
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• pp.101-114
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• 2020

Purpose - This paper examines the "Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region" (the Arrangement), which became effective on October 1, 2019, calling on courts of mainland China and Hong Kong for reciprocal commitment in support of court-ordered interim measures in aid of arbitral proceedings. Because the Hong Kong courts have granted interim measures in aid of arbitral proceedings seated in and outside of Hong Kong even prior to the Arrangement becoming effective, this paper focuses on the significance of the Arrangement making Hong Kong the first and only seat outside of mainland China from which parties to arbitral proceedings may successfully obtain interim measures to preserve of assets, properties, and/or evidence from Chinese courts to be enforced in China. Design/methodology - The significance of interim measures in international arbitration and the existing circumstances of interim measures in support of international arbitral proceedings in mainland China and Hong Kong are discussed first in this paper. Due to the confidential nature of arbitral proceedings, while the details of applications for interim measures pursuant to the Arrangement cannot be discussed, in examining the implications of the Arrangement, the relevant and necessary information was made available from the Hong Kong International Arbitration Centre, as it is one of the six qualified arbitral institutions under the Arrangement. Findings - This groundbreaking Arrangement provides a mechanism for parties with China-related matters to more effectively resolve their disputes, the opportunity for Hong Kong to become an unparalleled seat of arbitration, and for mainland China to overcome some of its negative perceptions in international arbitration. Because the Arrangement also allows parties to directly apply for interim measures from mainland Chinese courts, parties with China-related matters should take note of this potential bypassing of the procedural hurdle, which usually requires an arbitral institution to submit such applications in China, and make strategic decisions accordingly as may be appropriate. Originality/value - Because the Arrangement is a recent yet a significant agreement calling on courts of mainland China and Hong Kong for reciprocal commitment in support of court-ordered interim measures in aid of arbitral proceedings, this study will provide useful guidance for parties with China-related matters all over the world, especially in light of China's rapid economic growth and extensive and prominent trade relationships in today's world. Parties who foresee the need for interim measures from mainland Chinese courts should designate Hong Kong as their seat of arbitration and select one of the six qualified arbitral institutions under the Arrangement to administer their arbitral proceedings in order to benefit from the Arrangement.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.263-290
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• 2004

Dispute plays a key role in maintaining the desirable performance of trade transaction. Although avoidance of disputes is always a priority, it is also important to prepare methods of dispute resolution which are efficient and economical. So, understanding of chinese dispute resolution system is a necessary requirement for successful business operation with chinese companies. This article analyzed and compared with the ways of trade disputes settlement system such as negotiation, mediation, arbitration and litigation in China in order to help the Korean traders who enter into business with the chinese companies to settle their disputes efficiently. This article suggests that two methods of negotiation and mediation are more likely to be effective than arbitration and litigation to resolve disputes with chinese companies because of problems of enforcement of arbitral award and the uncertainty of China's legal system.

• Journal of Arbitration Studies
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• v.5 no.1
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• pp.53-78
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• 1995

• Journal of Arbitration Studies
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• v.26 no.1
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• pp.135-157
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• 2016

CISG is the most important international convention in the field of international sale of goods. Many arbitration organizations often invoke this convention when settling disputes between the parties concerned. China has been one of the contracting states since the effective date of CISG, and has settled many cases with it. This article aims at analyzing the legal status of CISG in China and the methods with which Chinese arbitration organizations apply CISG. Also, it looks into the existing problems, based on which it provides suggestions for improvement.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.47-68
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• 2004

The problems on application for custody in CIETAC Arbitration Rule are examined in this paper. First, The issue of jurisdiction for application for custody is arisen from the expansion of material jurisdiction of CIETAC. Until 1998, CIETAC had a jurisdiction only for the cases involving foreigners, but now, it has a jurisdiction not only for the cases involving foreigners but also for domestic cases. In the cases of arbitrating disputes involving foreigners, if the parties concerned apply for the preservation of property, CITEAC shall forward the application to and obtain a ruling from an intermediate people's court in the place where the object of the application resides, or where the property is located. But in the cases of arbitrating domestic disputes, if the parties concerned apply for the preservation of property, CITEAC shall forward the application to and obtain a ruling from an ground-level people's court in the place where the object of the application resides, or where the property is located. Therefore, "People's court" in article 23 of CIETAC Arbitration Rule includes both intermediate people's court and ground-level people's court in its meaning. Second, in the cases that the party concerned submits arbitration to CIETAC, it is not permitted for the party to ask the people's court for custody of property before submitting an arbitration. But there still can be the urgent cases that interests of the party concerned are at stake, and legitimate rights and interests of the party concerned may be damaged beyond remedy, if no application for custody of property is filed immediately. In that cases, even if the party may apply for custody of property with the people's court after submitting an arbitration, it might be too late to preserve property. Therefore, Chinese laws and rules have to be revised so that the party may ask the people's court for custody of property before submitting an arbitration. When revising laws and rules, according to the today's legislation trends, it must be considered that court and arbitration tribunal both have a right to decide the custody of property. When arbitration tribunal decides it, the procedural provisions executing it must be provided. It is also required that China permit to apply preservation of evidence as well as custody of property before submitting an arbitration. It is also strongly recommended that China permit custody of property or preservation of evidence even in the cases that an arbitration is submitted to the arbitration institute which is located in foreign country, not in China.

• Journal of Arbitration Studies
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• v.15 no.2
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• pp.263-292
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• 2005

In China, as far as the enforcement of the award is concerned, a three-pronged regime exists : each for domestic, foreign-related and foreign awards. As opposed to domestic awards, foreign-related awards are defined as those involving 'foreign-element.' Among them, this article focuses on the enforcement regimes of foreign-related and foreign arbitral award, and strives to provide a practical outlook of the arbitral award enforcement regime in China. For that, this article consists of five chapters. In chapter I, the purpose and scope of this study are mentioned; In Chapter II, the types, the statutory framework, the related measures, the statistical assessment on enforcement of arbitral awards are addressed. Chapter III points out some issues on the enforcement regimes of foreign-related and foreign arbitral awards, with focus paid to the recognition of foreign-related arbitral awards, the substantive judicial review of foreign-related arbitral awards, and the refusal of enforcement with the social and public interest ground. Chapter VI introduces two non-enforcement cases of foreign-related and foreign arbitral awards. Lastly in chapter V, the author makes a proposal to improve the enforcement regime in China. Although China already obtained a certain level of achievement, she still need to be undertaken by the government and judicial authorities to offset the negative effects of some obstacles to hamper the enforcement such as protectionism so that she may create a more favorable arbitration environment.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.37-57
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• 2017

On 9 March 2017, a Tribunal constituted under the ICSID Convention issued its ruling in the case of Ansung Housing v. People's Republic of China, dismissing with prejudice all claims made by the Claimant, Ansung Housing Co., Ltd., in its Request for Arbitration, pursuant to ICSID Arbitration Rule 41(5). Ansung Housing v. PRC has drawn attention since it is the first case where an investor with Korean nationality initiated an ICSID arbitration on the basis of the Korea-China Bilateral Investment Treaty (BIT) as amended in 2007 between the Republic of Korea and the People's Republic of China. The Tribunal finds that its ruling is about a lack of jurisdiction of the ICSID and of its own competence as well as regarding manifest lack of legal merit due to a lack of temporal jurisdiction, since a Respondent's Rule 41(5) objection is concerned with the three-year limitation period in Article 9(7) of the Korea-China BIT. The Tribunal held that, under Article 9(7) of the Korea-China BIT, the limitation period begins with an investor's first knowledge of the fact that it has incurred loss or damage, not with the date on which it gains knowledge of the quantum of that loss or damage. Finally, the Tribunal held that Ansung submitted its dispute to ICSID and made its claim for purposes of Article 9(3) and (7) of the BIT after more than three years had elapsed from the date on which Ansung first acquired knowledge of loss or damage and that the claim is time-barred and, as such, is manifestly without legal merit. It remains to be seen whether the aggrieved Claimant initiates annulment proceedings before an ad hoc committee under the ICSID Convention. It is quite interesting to see whether the decisions by the Tribunal should be reversed on the basis of the Claimant's arguments as to the start date as well as the end date of the limitation period under the Korea-China BIT.

• Journal of Arbitration Studies
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• v.20 no.3
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• pp.93-120
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• 2010

In 1978, Chinese reform and opening caused a big changes in Chinese labor relationship. Through reforming and opening, China gave up part of state ownership system and group ownership system, permitted private ownership system, and also opened the way for capitalists to ride again. Since China was established, the labor relationship ceased for 30 years has been appeared. However because the top priority aim of China's reform was economic growth, the protection of the rights and interests of labor was pushed back on the policy priority list. China takes foreign capitals based on cheap labor force quickly and China come up the worldwide plants. Since reformed, China keeps an economic growth rate of 9.7% annually for 30years. This economic growth is based on labor's sacrifice. However, Chinese fast economic growth causes side effects such as increasement of the gap between the wealthy and the poor, increasement of unbalanced development between regions, and the increasement of conflict between labor and management. Especially, according to changes in labors' level of consciousness, the labors recognized that their rights and interests are exploited by employers. Therefore, the labor dispute is continuously increasing. Chinese government changes their policy from the policy focusing on enterprise development to the policy protecting labor's rights and interests. In order to protect labor's rights and interests, China conducts labor contract law and labor dispute conciliation arbitration law in 2008. This kind of changes in Chinese labor environment affect a lot to Korean companies which already entered into China or are willing to enter. According to studying on present situation and resolution system in Chinese labor dispute, this paper suggests the proper countermeasure related to labor dispute of Korean companies which entered in China. First, the success rate of labor dispute conciliation by enterprise labor dispute conciliation committee is around 20% during recent several years and the success rate by year is in decline. Therefore, when labor dispute is occurred, our companies which entered into China better use other labor dispute methods such as negotiation and arbitration than conciliation in order to settle a conflict. Second, from the Korean enterprises entered in China point of view, there exists a problem not to sue except special cases which provided in the law even though they are dissatisfied with arbitrate judgment. Thus, when labor dispute occurred, Korean enterprises try to do best to settle the dispute through negotiation. However, in case of that the dispute cannot be settled by negotiation, they have to attend in the arbitration as if it is a last chance. Third, Korean enterprises keep in mind that dispute handling procedures between labor union and users or between labor group and users are different, and then deal with separately. Thus, dispute between labor and users have to follow arbitrate procedures as a necessary procedure, but in case of dispute related to group contract, namely dispute against labor union, labor dispute can be settled by arbitrate or suit, so after figuring out the situation exactly, it is necessary to select more advantageous way in order to settle the dispute. Moreover, in case of the dispute between labor union, they have to keep in mind that conciliation procedures cannot be used.