• 한국중재학회지:중재연구
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• 제31권3호
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• pp.25-42
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• 2021

Arbitration is an alternative dispute resolution mechanism based on the parties' agreement to resolve any disputes parties may have by arbitration rather than litigation in court. Parties' consent to arbitrate, which must be manifest in the parties' arbitration clause or agreement, is the foundation for arbitration; thus, the language of an arbitration agreement is often of utmost importance in determining the intent of the parties regarding many aspects of arbitration proceedings, such as, the scope of arbitral proceedings, arbitral seat, and authority of arbitral tribunals, among others. Recently, the U.S. Supreme Court held in Lamps Plus, Inc. v. Varela (2019) that ambiguity in arbitration agreement as to availability of class arbitration should be resolved in favor of individual arbitration, and therefore, class arbitration would be precluded. Such holding was met with criticism by four separate dissenting opinions, in which the dissenting Justices have disagreed with the majority's interpretation of the arbitration agreement at issue, as well as, its rejection of application of state law in resolving contractual ambiguity. This article analyzes the Supreme Court's decision and reviews the Court's approach in construction of the arbitration agreement. Nevertheless, because the Supreme Court declined to provide clear guidelines as to precisely what contractual basis is required to permit class arbitration, either silence or ambiguity in arbitration agreements will be resolved by disallowing class arbitration.

• 한국신뢰성학회:학술대회논문집
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• 한국신뢰성학회 2004년도 신뢰성해외전문가초청세미나
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• pp.41-51
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• 2004

Contractual agreement. Established on sale of product. Establishes. Buyer responsibility. Limitations. Seller liability.(omitted)

• 한국신뢰성학회:학술대회논문집
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• 한국신뢰성학회 2004년도 신뢰성해외전문가초청세미나
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• pp.97-106
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• 2004

Contractual agreement (relating to product performance). Established on sale of product. Requires the manufacturer to either rectify failures occurring over the warranty period or compensate through refunding a fraction of the sale price.(omitted)

• 한국중재학회지:중재연구
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• 제28권1호
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• pp.3-26
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• 2018

This article examines whether parties may agree to contractually waive the right to bring annulment proceedings. Alternately it looks at whether certain grounds of annulment may be waived. The ability for parties to resolve this issue contractually by waiving this element of Article 52(1)(b) ICSID offers a potentially powerful solution. For parties to agree beforehand to the circumstances where tribunals have not 'manifestly exceeded their power' could allow them to remove the unpredictability of annulment on this foundation. Even in the event that an ad hoc committee is against the validity of waiver, it may be possible for a party to frame this restriction as an interpretative agreement by the parties rather than strictly as waiver of a ground of annulment. Ultimately, the wish to enter into such an agreement would likely only be driven by a few exceptional commercial need or prior negative experience with the remedy of annulment. In that cases, and depending on the nature of the specific concern with annulment, a limited waiver or interpretative agreement on certain Article 52(1) ICSID grounds may certainly be appropriate.

• 한국중재학회지:중재연구
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• 제27권2호
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• pp.19-36
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• 2017

This paper reviews and analyzes the U.S. cases and statutes on the writing requirements of arbitration agreement. In order to discuss the legal aspects of writing requirement on arbitration agreement in the U.S., it is necessary to delve into both the contractual aspects of arbitration agreement and statutory specifications of the writing requirements of arbitration agreement. Statute of frauds and parole evidence rule were reviewed and employed to find legal implications on the writing requirement of arbitration agreement. Relevant cases were analyzed to verify how the courts have been responded to the conflicts regarding the validity of the arbitration contract with respect to writing requirement. International treaties absorbed into the U.S legal system were also reviewed and commented to analyze their implications on the writing requirement of arbitration agreement, including the UNCITRAL Model Arbitration Law and the New York Convention.

• 한국건설관리학회논문집
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• 제18권1호
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• pp.3-16
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• 2017

Integrated Project Delivery는 기존 발주방식 (설계시공일괄 발주방식, 설계시공분리 발주방식, 건설사업관리 발주방식)의 대안으로 제시되고 있다. 다수의 국외 IPD 관련 연구들은 IPD의 계약적 측면뿐만 아니라 IPD의 업무수행방식 측면에서도 IPD 연구에 접근하고 있다. 그러나 대부분의 국내 IPD 관련 연구들은 IPD의 계약적 특성에만 초점을 맞추고 이것이 심각한 문제인 것으로 간주하고 있는데, 현재 국내 규제와 법적 한계로 인해 다자간 계약이 불가능하므로 이런 국내 건설환경에서는 IPD가 도입되기 어렵다는 주장이다. 하지만 본 연구는 국내 시스템이 변화하길 기다리는 대신 IPD가 업무수행방식 측면에서 도입될 수 있음을 보여주고자 한다. 따라서 이 연구의 목표는 IPD 계약이 체결되지 않은 프로젝트들의 성과와 IPD 계약이 체결된 프로젝트의 성과를 비교함으로써 IPD 계약적 특성이 IPD를 적용한 프로젝트에서 필수조건이 아님을 보이는 것이다. 본 연구는 미국 5개 IPD 사례와 국내 1개 프로젝트의 참여자들로부터 설문데이터를 확보하여 사례조사를 두 단계로 수행하였다. 첫째로 IPD 계약을 체결하지 않은 미국 4개 사례의 IPD 특징요소 적용여부와 그에 따른 성과를 비교하고, 둘째로 IPD 계약을 체결한 미국 사례와 IPD 특징요소를 프로젝트에 도입한 국내 사례에 대해서 첫 번째 단계와 같은 내용을 비교하였다. 연구의 결과로 IPD 특성의 자유롭고 유연한 도입을 통해 국내 건설의 생산성 도모와 협업환경 조성을 통한 건설 환경의 개선 및 발주자와의 신뢰관계 구축에 도움을 줄 것으로 기대한다.

• 한국중재학회지:중재연구
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• 제29권2호
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• pp.89-105
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• 2019

This paper reviews and analyzes the U.S. cases and statutes on the issue of party autonomy in arbitration agreement. Arbitration agreement has been interpreted somewhat differently from general contracts because its legal characteristics are not purely contractual by nature. For example, some legal scholars insist that an arbitration contract is more about an agreement on a process of dispute resolution than a creation of rights and obligations to avoid litigation. Party autonomy was discussed in diverse legal perspectives including contract of adhesion, VKI principle, and separability of arbitration clause. These three legal perspectives are discussed to set the legal relationship between party autonomy and protection of consumers in consumer arbitration. In addition, it was discussed how legal defects in the formation of an arbitration contract can influence the party autonomy. The legal defects that were discussed to analyze the relationship between arbitration agreement and party autonomy included misrepresentation, fraud, mistake, duress, and undue influence.

• 무역상무연구
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• 제32권
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• pp.3-27
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• 2006

The Pennzoil case and the SME case illustrate the difficulties which originate from inadequate drafting of letters of intent. In both cases the judges had to face the crucial question as to whether or not a given letter of intent had a binding nature; they had in other words to decide whether the wills expressed in such letters still belonged to the pre-contractual stage, or whether their incorporation into a pre-contractual document meant that negotiations were over and binding obligations had already arisen for the parties. In other words, some problems may occur when a party has documented a stage in the negotiations by letters of intent. The letters may well explicitly spell out if, and to what extent, the parties should be bound by what they have already agreed or to carry on negotiations in order to reach the final contract. But if the letters are silent, some problems would arise. Contracting parties are, therefore, well advised to spell out if, and to what extent, they should be bound by such preliminary agreements. Here again, it might be prudent to explicitly set forth that the parties should not be bound until there is a final written contract signed by authorized representatives of the parties but that they shall abstain from such measures which may defeat their stated objective to reach final agreement, e.g. by diminishing the value of performance under the contemplated contract.

• 한국중재학회지:중재연구
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• 제11권1호
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• pp.121-143
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• 2001

Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of defined legal relationship, whether contractual or not. Arbitration has become increasingly popular in settling international and domestic commercial disputes nowadays. The importance of arbitration agreement cannot be overemphasized. It is the most reasonable way to settle commercial disputes. There are two types in arbitration agreement. one is arbitration clause, the other is submission agreement. The arbitration agreement must be made in writing, in addition, other communication instruments shall be considered as effective arbitration agreement if they are properly documented. Over the past few decades, a considerable number of studies have been conducted on the legal property of arbitration agreement in Germany and Japan. Its legal property is aspect of substantial law contract. The basis of arbitration agreement is the principle of party autonomy. The important effect of arbitration agreement is to preclude jurisdiction from national court. The respondent shall raise a plea not later than when submitting his first defense on the merits of the action. As positive effect of arbitration agreement, the court must support the conduct of arbitral proceedings and arbitrator can be appointed upon request of a party.

• 한국중재학회지:중재연구
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• 제31권1호
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• pp.83-105
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• 2021

If aggrieving consumers or employees cannot prove both substantive and procedural unconscionability, many U.S. state courts will enforce arbitration agreements. Additionally, U.S. courts weigh a variety of factors to determine whether an arbitration agreement is substantively unconscionable. For example, U.S. courts have considered one or a combination of the following factors: (1) the fairness of contractual terms; (2) the severity of contractual terms' deviation from prevailing standards, customs, or practices within a particular industry; (3) the reasonableness of goods-and-services contract prices; (4) the commercial reasonableness of the contract terms; (5) the purpose and effect of the terms and (6) "the allocation of risks between the parties." Further, procedural unconscionability characterized by surprise or lack of knowledge focuses on terms that are deceptively hidden in a mass of contract language, the object of another concealment, or imposed in the circumstances involving haste or high-pressure tactics so that they are not likely to be read or understood. This unconscionability doctrine can be applied to a situation where an alcoholic dementia-afflicted older adult is admitted to a nursing home. At that time, because she had alcoholic dementia, which precluded her reading, comprehending, writing, negotiating, or signing of any legal document, her son, who did not understand the adhesion contract, signed the standardized residential contract and the arbitration agreement.