• 한국중재학회지:중재연구
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• 제18권3호
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• pp.23-50
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• 2008

In a global economy where, private parties increasingly favour arbitration over litigation, many foreigners are unfortunately reluctant to arbitration with China's parties because the China national courts do not scrutinize the merits when deciding whether to recognize and enforce foreign awards. As a result, the finality of arbitral awards hangs in uncertainty. Overseas concern is that China's courts may abuse "Public Policy" grounds provided for in the New York Convention to set aside or refuse to enforce foreign awards. The purpose of this article is to examine the distrust to enforcement of arbitral awards whether that is just an assumption. In spite of the modernize and internationalize her international arbitration system and many reforms provided in the related law and rules, the most vexing leftover issues are caused of the lack of "rule of law" in China. This situation imply the risk of pervert 'Public Policy' as the ground for refusing enforcement of arbitral awards. Some cases reflect the fear. But it is unclear whether those cases caused from the lack of "rule of law" in China. Same uncertainty present between Hon Kong-China under th one country-two legal system after the return of Hong Kong to China on 1 July 1997. While China is striving to improve its enforcement mechanism in regard to the enforcement of arbitral awards, it can only be expect following the establishment of rule of law in the future.

• 한국중재학회지:중재연구
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• 제28권2호
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• pp.111-135
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• 2018

As the disputes in the investment and civil/commercial sectors of China and Taiwan have increased due to active cross-strait economic exchanges, the Chinese government is addressing cross-strait disputes through various dispute resolution methods. In recent years, the Arbitration Center Across the Straits (ACAS) has been established to resolve disputes between cross-strait parties, while ACAS Arbitration Rules have been enacted and enforced. ACAS Arbitration Rules are prepared by referring to the Arbitration Act of China and Taiwan, the relevant provisions and practices of the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules and the cross-strait practical affairs of the China International Economic and Trade Arbitration Commission, and the cross-strait practical affairs giving consideration to the specificity of the cross-strait relationship and the characteristics of economic and trade disputes. Therefore, this paper has compared the features and main contents of the ACAS Arbitration Rules with those of the CIETAC Arbitration Rules. This refers to arbitration proceedings such as form and effect of arbitration agreement, decision of place of arbitration, and organization of arbitral tribunal; the provision of consolidation of multiple contracts and arbitration, and the provision of joinder of arbitration parties, which are implementing the "principle of party autonomy" with streamlining arbitration proceedings and reducing costs; "common, simple, and small sum arbitration proceedings which require shorter arbitration proceedings depending on the size of the arbitration object; and regulations on the "interconnection of mediation and conciliation" which is characteristic of China's arbitration system. Based on the above-mentioned main contents of the ACAS Arbitration Rules in China, there are some implications to be considered in the establishment of the Arbitration Rules of the South-North Commercial Arbitration Commission which will be applied to solve commercial and investment disputes arising from the Inter-Korean Economic Cooperation process, suggesting implications such as the need for the rapid composition and operation of the South-North Commercial Arbitration Commission, requirements for selecting arbitrators, expansion of the object of arbitration, specification of concreteness in deciding the place of arbitration, need to create a variety of arbitration proceedings, and application plan of the International Center for Settlement of Investment Dispute (ICSID) or Third Power Arbitration Agency.

• 한국중재학회지:중재연구
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• 제22권2호
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• pp.31-52
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• 2012

Although political uncertainty exists between China and Taiwan, the two countries have been expanding their economic exchange since the 1980s. That economic exchange is not limited to trade, and its investment segment is constantly expanding. The investment was one-sided by Taiwan in the past, but since a change in policy by the Taiwan government in 2009, Chinese capital is able to flow into Taiwan for direct investment. These kinds of policy changes related to investment between the two countries require follow-up actions such as profit protection for investors, elimination of investment limitations, simplification of investment procedures, and establishment of an investment dispute resolution system. The main topic of this study is the resolution mechanism for investment disputes between China and Taiwan. At present, an individual investment dispute between two countries is settled according to each country's own regulations for dispute resolution. However, these two countries have not prepared dispute resolution regulations related to cases of investment disputes between Chinese or Taiwanese investors and the Chinese or Taiwanese government, or between the Chinese government and the Taiwanese government. Moreover, they do not have any agreements related to investment disputes. Therefore, in this paper, I enumerate the regulations related to investment dispute resolution between China and Taiwan, and then I point out the problems and suggest solutions for improvement. Also, through this study, I would like to contribute to establishing and implementing an investment dispute resolution mechanism between South Korea and North Korea.

• 무역상무연구
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• 제69권
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• pp.523-541
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• 2016

According to Chinese Arbitration Law, combination of mediation with arbitration means that in the process of arbitration, arbitrator may conduct mediation proceedings for the case they are handling, provided both parties agree to do so. If mediation succeeds and the parties reach a settlement agreement, the arbitrators may render a consent award or a written mediation statement in accordance with the contents of the settlement agreement. If mediation fails, the arbitration proceedings will be resumed until the case is concluded by making of an arbitral award. There is no formal name of this system in China, it is called "combination of mediation with arbitration", "mediation in arbitration process" or "arbitration-mediation", the author of this thesis select "arbitration-mediation" and make it simply as "Arb-Med". This thesis concentrates on three issues that arbitrators and the parties have to clarify and pay attention to once they choose to use Arb-Med. The first part is about the 'waivable problems', include waive the right to challenge a arbitrator who act as a mediator at the same time with parties' approval, as well as the question about the waiver of the arbitrator's duty to disclose confidential information obtained during mediation. The second part is 'public policy in Arb-Med', introduces the concept of public policy, the bias may arise the complaint about public policy, and the due procedure problem. And the last part is about the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, especially about the award including some contents which has relation to third party's interests.

• 한국중재학회지:중재연구
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• 제23권1호
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• pp.25-53
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• 2013

With the Korea-China FTA negotiations currently on the line, the importance of research into the FTA dispute settlement system has been increasing. In this paper, a comparison of Korea and China's FTA dispute settlement agreements concluded with ASEAN is contemplated, and implications for the future of the Korea-China FTA have been suggested. The FTA dispute settlement agreements with ASEAN concluded by both Korea and China provide perspectives on both sides. This agreement with ASEAN also provides a standard for the potential Korea-China FTA agreement. Specifically, the basis of these agreements with ASEAN is the same, although there are clear distinctions, described in a more detailed manner. A problem arises when there has been no discussion on dispute settlement agreements in Korea, especially of the agreement with ASEAN, whereas the opposite is true of the China counterpart. In this paper, Chinese academic FTA dispute settlement agreement studies have been also examined.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.45-65
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• 2009

China and Taiwan had opened complete Three Linkages era December 2008, in the 59 years. The improvement of two countries' relationship is expecting to spur two countries more on the economy exchange. However the increasement of investment and trade between two countries will increase disputes to ratio. In order to settle the disputes related to economy between two countries, the most favorite way is to use arbitral system which involve less public power. After China and Taiwan recognized this point, they announced provisions which allow to solve controversies through the arbitration between parties of two countries since 1980, and prepared legal basis for dispute settlement between two countries. However, because China and Taiwan do not authorize each party as a country, the execution application made by each party based on New York Convention related to foreign arbitral awards cannot be approved. Because of these kind of reasons China and Taiwan should agree in order to guarantee mutual execution of arbitral awards which is an ultimate purpose of arbitration. However because of the political situation of two countries there are provisions related to execution for arbitral awards decided by each party. In this paper, I separated the provision related to mutual execution for arbitral awards of each party of China and Taiwan, examined exposed problems, and suggested ways to improve. It can support some of assistance and implication to establish basis of arbitral system between South Korea and North Korea and to suggest direction to derive through this kind of study.

• 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.

• 무역학회지
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• 제42권2호
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• pp.205-225
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• 2017

본 연구는 신용장거래에서 불일치서류에 대한 은행의 지급거절통지의 절차를 한·중 판례를 중심으로 고찰한다. 한·중 무역거래 비중이 높은 상황에서 한국 기업과 신용장을 개설하는 우리나라 은행들이 서류심사 결과로서 지급거절을 통지함에 있어 주의해야 하는 사항들과 신용장 관련 분쟁을 해결하기 위한 방안에 대한 제언을 목적으로 한다. 본 연구에서 고찰한 판례는 중국 매도인이 개설은행을 상대로 중국법원에 소를 제기한 것으로, 개설은행의 지급거절통지가 UCP 600 제16조 (c)항 (ii) (iii)의 내용적인 요건을 충족하지 못한다고 판시한 중국법원의 판결이다. 본 판결을 볼 때, 우리나라 기업들과 신용장 개설은행들은 첫째, UCP 600 제16조 (c)항의 규정에 근거하여 하자에 대한 통지의 내용을 자세하게 기재해야 한다. 둘째, 신용장 계약에서도 무역계약 마찬가지로 준거법에 대한 합의를 명확히 하는 것이 필요하다. 셋째, 한·중거래에서 중국법원의 편파적인 판결과 더불어 외국법원의 판결이 중국에서 집행이 어려운 점을 감안해서 분쟁해결 방식으로 중재를 활용하는 것이다. 신용장 개설 시 중재조항을 삽입하여 법적인 효력을 갖도록 하고, 국제신용장중재센터나 DOCDEX 시스템을 활용하는 것을 권고한다.

• 아태비즈니스연구
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• 제10권1호
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• pp.117-133
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• 2019

This paper examines the most-favored-nation treatment clause on the BITs concluded by China and examines the attitudes of China on the application of the most-favored-nation treatment clause to the ISDs by period as the scope of arbitration increases. Moreover, this study pointed out the problems that would be exposed if the most-favored-nation treatment clause applies to ISDs and then also suggested solutions. The conclusions of this study are as follows; if the Chinese government strictly restricts the applicable expansion of the most-favored-nation treatment clause to the dispute settlement procedure by considering only the position of the capital importing country, it implies a contradiction against the development trend of the arbitration system related to international investment disputes. Of course, in order to protect the rights of Chinese investors investing abroad, expanding the applicability of the most-favored-nation treatment clause to the ISDs procedure unconditionally may have a negative impact under China's dual status of being a capital-importing country and a capital-exporting country. Therefore, China should clearly define the scope of application of the most-favored-nation treatment clause, the completion of the local remedy for the host country in cases of BIT to be concluded in the future or amended, and also clearly define that the most-favored-nation treatment clause should not be retroactively applied into BITs already concluded as an exception of applicability of the most-favored-nation treatment.

• 무역상무연구
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• 제66권
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• pp.171-190
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• 2015

This thesis mainly studies the Commercial Mediation System in China and its Implications to Korea. Commercial mediation is an important dispute settlement method, however there are more studies on the issues of arbitration than the ones on mediation. Commercial mediation emerges From the tide of economic activity, needing an earnest research and to be developed. Business mediation law has been enacted in some nations like USA, but in Korea, there is no law in mediation field to follow. To set up business mediation law is necessary and urgent as well as feasible. This thesis first introduces the mediation of the general meaning including concept, makes a research concerning the sorts of the mediation, compares the effect of different kinds of mediation, and studies the current status of use of mediation in other countries. Than introduces current status of use of mediation in China, and examine mediation system in China. Through this studies, the writer no that there is almost equal problem in China comparing to Korea. So than examine how Chinese government make countermeasures to cover their problems, and give Korean government several implications that can learn from China.