• 한국중재학회지:중재연구
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• 제20권3호
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• pp.25-46
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• 2010

In spite of great interest and recent innovation of the legislative system in the Arbitration and other Alternative Dispute Resolution(ADR) system, In Japan there have been only a few case in which International commercial dispute was settled through the Arbitration compared to other countries. However, we can easily expect that foreign arbitral awards which need to be recognized and enforced in Japan will gradually increase and this makes it very important for us to review the Japanese legislative system regarding recognition and enforcement of foreign arbitral awards. In this paper, I focused on the relations between applicable laws(including convention) regarding recognition and enforcement of foreign arbitral awards in Japan and some issues concerning refusal of recognition and enforcement of foreign arbitral awards. Japan is a member state of several multilateral conventions concerning recognition and enforcement of foreign arbitral awards including the New York Convention of 1958 and at least 20 bilateral agreements which include provisions in relate to the recognition and enforcement of arbitral awards. Therefore there are some legal issues about the priority application between multilateral and bilateral agreements in relate to Article 7(1) of the New York Convention. In Japan, as I mentioned in this paper, there are incoherent opinions concerning this issue. To solve it substantially it would seem appropriate to build up concrete and explicit provisions concerning the application of priority between multilateral and bilateral agreements. On the other hand, in relate to the application between the New York Convention and National Law, it is necessary to take general approach regarding the priority application between Convention (Treaty) and National Law, considering the national application of conventions under the Constitutional System of each country. Among the grounds for non-recognition/enforcement, there are the ones that are decided under the law of the requested country, for instance, arbitrability and public policy. It would therefore be possible that some foreign arbitral awards would not be recognized in Japan especially relating to the arbitrability because its scope in Japan is not so large. Regarding the enforcement of awards annulled in their place of origin, some positive opinions in recent Japanese legal discussions, say that annulled awards should be enforced as a counter strategy of developed countries and judiciary discretion of the requested country would be needed. As mentioned in this paper, the recognition and enforcement of foreign arbitral awards is closely related to judicial policy of the requested country as the recognition and enforcement of foreign judgment is. Even though there existed uniform rules on recognition and enforcement of foreign arbitral awards like the New York convention, each country has different internal legal status of conventions under its own Constitutional System and tends to interpret the provisions based in its own profit. Therefore, it is necessary to review, in the light of conflict of laws, the national legislative system including legal status of conventions of the requested countries concerning recognition and enforcement of foreign arbitral awards.

• 한국중재학회지:중재연구
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• 제23권3호
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• pp.149-167
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• 2013

Arbitration is one of the prominent and widely practiced forms of Alternate Dispute Resolution. Different countries are strengthening their alternate dispute resolution mechanism, and focusing on arbitrations is a very important edge. Pakistan is in the phase of developing effective laws and policies to strengthen the process of arbitration. The Pakistan Arbitration Act of 1940 is very important to discuss and along with domestic laws the applicability of the international conventions must be discussed. This paper analyzed the situation of arbitration laws in Pakistan with respect to both the domestic laws and international laws applicable in the country.

• 무역상무연구
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• 제37권
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• pp.133-158
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• 2008

The purpose of this article is to examine the "Annulment" of ICSID Arbitration Award. Most of the international conventions provide for arbitration as the preferred method of dispute settlement. In general they either provide for ad hoc arbitration under the UNCITRAL Rules or under the rules of an acceptable arbitration institution, e.g. ICC, AAA, LCIA and in particular ICSID. The most distinctive feature of ICSID arbitration is the self-contained and exhaustive nature of its review procedures. Unlike other arbitration regimes, control is exercised by internal procedures rather than by the courts. Remedies against the award are limited to those provided for in the Convention and do not include court involvement. Especially, the annulment of the ICSID award by an ad hoc committee must be considered as jeopardizing ICSID Arbitration because it clearly depart from the current trends of international commercial arbitration which limits any kinds of judicial review and excludes any kinds of review on the merits. I wish that the future decisions of the ad hoc committees will restore a narrow scope to the ICSID procedure of annulment in order not to endanger the ICSID Arbitration mechanism.

• 한국중재학회지:중재연구
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• 제23권3호
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• pp.1-23
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• 2013

Form requirements particularly for arbitration clauses are widely perceived as an obstacle for efficiently resolving disputes on an international level. The paper discusses the recent suggestion that the freedom of form principle under Art. 11 CISG extended to arbitration, forum selection, or choice of law clauses in international sales contracts and thus superseded any and all formal requirements in this regard. After analysing national and international form requirements with regard to said clauses, the authors elaborate that while dispute clauses are indeed encompassed by the CISG's scope of application, freedom of form under the CISG was neither intended to nor should it apply to dispute clauses. This result is further confirmed by the interplay of the CISG with other international conventions, first and foremost the 1958 New York Convention, as well as a careful analysis of the so called most-favourable-law-approach.

• 한국중재학회지:중재연구
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• 제18권1호
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• pp.97-119
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• 2008

The reluctance of Latin American countries to practice international arbitration is not a new topic in international law. This reluctance historically based on Calvo Doctrine provoked not only the absence of Latin American countries from the major international commercial arbitration conventions, but obsolete national arbitration legislation. Recently, however, these countries have undertaken major steps showing that the region is no longer reluctant to practice international commercial arbitration. Most Latin American countries have ratified the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"), the 1965 Convention on the Settlement of Investment Disputes ("Washington Convention") and the 1975 Inter-American Convention on International Commercial Arbitration ("Panama Convention"). The majority of Latin American countries have also modified and adapted their national legislation on arbitration to the UNCITRAL model law. Even judiciary has been following this pro-arbitration. This article will focus on some of these factors provoking the acceptance of international commercial arbitration in Latin America to trace the common trends and characteristics in an attempt to understand better how international arbitration set on its place firmly. For this purpose we selected five countries, Brazil, Argentina, Chile, Mexico and Venezuela, to analyse legislations and jurisprudence. Latin America is ready to challenge any obstacles to promote arbitration as alternative methods of judicial resolution. There is an ever-increasing number of international arbitration in Latin America. Both practitioners and judiciary have shown desires to promote the resolution of disputes by arbitration and used the legal instruments to ensure that process interpreting and applying legislations for pro-arbitration. Even there remains Calvo Doctrine's culture in Latin America still now, it should be certain this culture will disappear from the conduct of international arbitration.

• 한국중재학회지:중재연구
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• 제18권2호
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• pp.55-77
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• 2008

The purpose of this paper is to make a research on the administration and practical problems of the arbitral organization called "uth-North Commercial Arbitration Commission". The Arbitration Commission shall be set up under the South-North Agreements officially called "reement on Settlement Procedure of Commercial Dispute" and "reement on Organization and Administration of the South-North Arbitration Commission" between the South and the North of Korea. A variety means of dispute settlement including friendly consultations, conciliation and arbitration called Alternative Dispute Resolution(ADR) will be used frequently and institutionally to settle commercial disputes and conflicts arising from economic transactions between the South and the North of Korea. Under the circumstances, it is becoming a problem of vital importance how to operate the Arbitration Commission for the prompt and effective settlement of the South-North commercial disputes. First of all, the South and the North of Korea should recognize the availability of prompt and effective means of dispute resolution such as arbitration and conciliation to be made by the Arbitration Commission would promote the orderly growth and encouragement of th South-North trade and investment, for which the following measures should be taken as soon as possible : 1. Enactment of the South-North Arbitration Rules. 2. Designation of the arbitral institution by North-Korean side. In this connection, the Korean Commercial Arbitration Board(KCAB) was already designated officially as the arbitral organization of South Korean side as of April 17, 2007. 3. Arbitration shall be held in the place where the respondent has his domicile, in case that both parties fail to agree as to the place of arbitration. 4. Permission of a third country arbitration in case that both parties agree to do so. 5. To become a member country of international arbitration agreements including the New York Convention.

• 무역상무연구
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• 제32권
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• pp.59-91
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• 2006

The Arbitration Act of Korea was promulgated in 1966. Since the promulgation of Arbitration Act of Korea, consecutive amendments took place in 1973, 1993, 1997, 1999, 2001 and 2002. Among the various set of amendments, those of 1999 were designed to accommodate the UNCITRAL Model Law on international Commercial Arbitration of 1985. Korea has acceded to special international conventions on dispute settlement such as the New York Convention of 1958 and the Washington Convention of 1965. The Korean Commercial Arbitration Board(KCAB) administers the arbitration proceedings in accordance with its Arbitration Rules approved by the Korean Supreme Court. Since the establishment of the first Arbitration Rules in 1966. consecutive amendments took place in 1973, 1981, 1989, 1993, 1996, 2000 and 2004. The KCAB plans to enact the International Arbitration Rules, which will be available to disputing parties in addition to the KCAB Arbitration Rules. In 2005, arbitration applications received at KCAB recorded a historic high at 213 cases, an increase of 22% from 175 cases in 2000. But in 2005, the total amount involved in the arbitration cases decreases to US$ 129 million, a decline of 63% from US$ 346 million in 2000. The KCAB should take the following measures for activating the commercial arbitration system: the globalization of KCAB, the advertisement of arbitration system, the security of qualified arbitrators, and the enhancement of the secretariat service. In conclusion, the KCAB should make efforts for the development of the arbitration system and for the upgrade of customer satisfaction. Moreover the KCAB should make further efforts to grow into a global arbitration institution as well as strengthening relations with international arbitration institutions.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.123-156
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• 2004

Settlement of investment disputes is quite different from that of commercial disputes arising from ordinary commercial transactions in view of disputing parties, applicable laws and rules, etc.. Therefore, it is very important to consider the Convention on the Settlement of Investment Disputes between States and Nationals of Other States(Washington Convention) of 1965. The creation of the International Centre for Settlement of Investment Disputes(ICSID), which was established under the Washington Convention, was the belief that an institution specially designed to facilitate the settlement of investment disputes between governments and foreign investors could help to promote increased flows of international investment. Pursuant to the Washington Convention, ICSID provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. Recourse to ICSID conciliation and arbitration is entirely voluntary. However, once the parties have consented to arbitration under the Washington Convention, neither can unilaterally withdraw its consent. Moreover, all Contracting States of the Washington Convention are required by the Convention to recognize and enforce ICSID arbitral awards. Provisions on ICSID arbitration are commonly found in investment contracts between governments of member countries and investors from other member countries. Advance consents by governments to submit investment disputes to ICSID arbitration can also be found in many bilateral investment treaties including the Korea-China Agreement on the Encouragement and Reciprocal Protection of Investments(1992), the Korea-Japan Agreement for the Liberalization, Promotion and Protection of Investment(2003) and the Korea-Chile FTA, the latter was signed as of February 15, 2003 and is still pending in the National Assembly for its ratification. Arbitration under the auspices of ICSID is similarly one of the main mechanism for the settlement of investment disputes under the bilateral treaties on investment. Therefore, it is a problem of vital importance that Korean parties interested in investment to foreign countries should understand and cope with the settlement mechanism of investment disputes under the Washington Convention and bilateral investment treaties.

• 한국중재학회지:중재연구
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• 제29권4호
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• pp.121-140
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• 2019

China, Hong Kong, Macao, and Taiwan have a singular political relationship. This distinctive relationship creates a unique impact on the nationality of the arbitral awards among the said countries. Each of these regions does not adopt the arbitral award of the other party as either a foreign arbitration award or a domestic arbitration award, but separately adopts the arbitral award in different jurisdictions within the same country. Therefore, in order to approve and enforce their arbitral awards in other areas, they have no choice to apply special laws or the conventions concluded between them, neither the New York Convention nor the individual arbitration laws in those areas. Therefore, this paper reviewed the convention and self-established laws among China, Hong Kong, Macao, and Taiwan regarding the approval and execution of the other arbitral awards. In addition, the domestic laws in China, Hong Kong, Macao, and Taiwan are compared with the New York Convention to ascertain the criteria for distinguishing domestic and foreign arbitral awards. This study also compared and analyzed what criteria were established for the determination of the nationality of the arbitral awards in the domestic law or the convention concluded in pan China. Through the analysis of these contents, the characteristics and problems of criterion for the determination of nationality among China, Hong Kong, Macao, and Taiwan were identified. Based on the results, this study examined the precautions Korean companies entering these regions should use in the arbitration system in these areas.

• 무역상무연구
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• 제19권
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• pp.191-223
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• 2003

Electronic commerce and the Internet offer unprecedented opportunities. The explosive expansion of the use of the Internet makes it possible for businesses to expand their markets and render services. Global transaction costs are easy to cut off using Internet and transaction speed is faster than before. Where cyberspace is not free from claims, Offline transaction can lead to problems and disputes the same is for cyberspace transactions. However ADR is not meet for the online transaction for speed, cost and open network system, ODR methods to resolve electronic commerce conflicts is crucial for building confidence and permitting access to justice in an online business environment. The use of the Internet and the network in dispute resolution has an impact on the types of communication implied in the relevant processes such as automated negotiation, online mediation and online arbitration and involves new technological issues such as the integrity and confidentiality of data and communication used to transmit and store data. Among the ODR systems Online Arbitration is currently binding both parties disputed and can achieve the aim of dispute award the same as the traditional arbitration. Arbitration is based on the New York Convention 1958, Arbitration Model law 1985 and national Arbitration Act that are founded on territorial area and rested on arbitration agreement, constitution of the arbitral tribunal, due process, final and binding award and enforcement of the arbitration award. To compare with this issues Online arbitration has unnecessarily legal unstability and risk. ODR is the burgeoning field and has created a new issues. All such issues which have been debated in the ADR are composed with ODR. But these are not limited Some of issues are further complicated by the nature of the online environment such as confidentiality and principle of parties. It is true that online arbitration should comply with legal provisions, but which is impossible to adhere of the law. Flexible translation and functional equivalence of legal provisions are needed for acceptance of electronic commerce disputes. Finally electronic commerce now takes place on the Internet, it is inevitable that the commercial world wants access to dispute resolution process that best suits the new commercial environment. ODR methods are processing for development and legal issues are considered by both national and international authorities. Introduction of new Conventions or amend Convention and Model law of ODR comes near.