• Journal of Arbitration Studies
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• v.24 no.2
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• pp.183-197
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• 2014

1. This study focuses on recent developments of trade transaction between Korea and China. The volume of trade is most rapidly increasing. There have been many items considered to ensure the proper, impartial, and rapid settlement of disputes in private laws by international arbitration. The article contains recent tendencies and proceedings of cases including place of arbitration, language, and so on. 2. The contract made between parties has led to some interpretational, legal questions. Interpretational questions rise mainly from differences of legal systems and legal questions on applying law. The characteristic features of the contract have different meanings, so some articles of the contract can be construed unlawful as a result. 3. As regards the Arbitration Act of Korea, Article 10, the Arbitration Agreement and Interim Measures by Court stipulate the following: A party to an arbitration agreement may request from a court art interim a measure of protection before or during arbitral proceedings. This article examines the application of Article 10 of the Arbitration Act of Korea.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.33-58
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• 2015

Arbitration clauses or institutional arbitration rules rarely, if ever, specify the law applicable to the arbitration agreement. A wide range of laws may thus govern this question, such as the law at the place of arbitration, the law where the agreement or the award is enforced or the law of the main contract between the parties. It is also conceivable that international uniform law or soft law may play a role. Tribunals and courts seized with this question must consequently decide which of these various laws shall apply to verify the existence and validity of the arbitration agreement. This paper picks up on this controversially debated conflict of laws issue. At times, this debate is characterized by a strong divide between arbitration and international trade law practitioners. But are the different approaches really leading to diverging results in arbitral practice?

• Journal of Arbitration Studies
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• v.33 no.1
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• pp.3-22
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• 2023

The purpose of this study is to present implications by analyzing the Swiss Federal Court's annulment of the arbitration Awards in Court of Arbitration for Sport(CAS). As international interest in the sports sector increases, related disputes are also increasing. Therefore, the role of CAS specializing in sports disputes is becoming very important. In particular, the Swiss federal court's annulment of the arbitral awards made by the CAS could contribute significantly to the development of sports arbitration in the future. Looking at the case analyzed in this study, first of all, it is about the partiality of the arbitrator. The court judged that the arbitrator posted and shared racist articles on SNS, which could be sufficiently biased. Next, it is about the uncertainty of the arbitration clause. The arbitral award was finally canceled due to the issue of whether the CAS could make an arbitral award with jurisdiction over a clause that includes both dispute resolution through a sports organization and dispute handling in a national court. As a result of the analysis of this study, in the case of unclear arbitration provisions, it will be necessary to prepare an arbitration agreement. In addition, in the case of unclear arbitration provisions, it will be necessary to prepare a post-arbitration agreement. Finally, in order to revitalize sports arbitration, it will be necessary to train professional arbitrators in Korea, support them to work internationally, and establish specialized arbitration institutions.

• Journal of Korea Trade
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• v.24 no.8
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• pp.171-188
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• 2020

Purpose - This is an exploratory study that aims to apply text mining techniques, which computationally extracts words from the large-scale text data, to legal documents to quantify trade claim contents and enables statistical analysis. Design/methodology - This is designed to verify the validity of the application of text mining techniques as a quantitative methodology for trade claim studies, that have relied mainly on a qualitative approach. The subjects are 81 cases of arbitration and court judgments from China published on the website of the UNCITRAL where the CISG was applied. Validation is performed by comparing the manually analyzed result with the automatically analyzed result. The manual analysis result is the cluster analysis wherein the researcher reads and codes the case. The automatic analysis result is an analysis applying text mining techniques to the result of the cluster analysis. Topic modeling and semantic network analysis are applied for the statistical approach. Findings - Results show that the results of cluster analysis and text mining results are consistent with each other and the internal validity is confirmed. And the degree centrality of words that play a key role in the topic is high as the between centrality of words that are useful for grasping the topic and the eigenvector centrality of the important words in the topic is high. This indicates that text mining techniques can be applied to research on content analysis of trade claims for statistical analysis. Originality/value - Firstly, the validity of the text mining technique in the study of trade claim cases is confirmed. Prior studies on trade claims have relied on traditional approach. Secondly, this study has an originality in that it is an attempt to quantitatively study the trade claim cases, whereas prior trade claim cases were mainly studied via qualitative methods. Lastly, this study shows that the use of the text mining can lower the barrier for acquiring information from a large amount of digitalized text.

• Journal of Arbitration Studies
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• v.19 no.3
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• pp.25-42
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• 2009

That occur in international trade disputes between the parties without resorting to a court trial on the basis of principle of government by the parties to resolve the dispute resolution in general (Alternative Disputes Resolution: ADR) agreed to, reconciliation, coordination, mediation and other methods are. Here, unlike arbitration and other dispute resolution arbitrator, the court confirmed the arbitration award came from the judge and the same shall become effective in doing international commerce dispute resolution methods are widely used. Arbitration Agreement is a contractual dispute, regardless of whether a certain law there arise about the relationship between the parties, Currently exists, future conflicts can arise in whole or in part by the arbitration agreement is to be resolved. Arbitration agreement include: the effects of out of contract arbitration proceedings, the court does not want the progress of the dispute referred to arbitration proceedings to the effect, and the presence of the parties to the arbitration agreement does not claim to knowing the defense plea that Appeals ticket of destruction that have the effect of demurrer, that the arbitration agreement are rebuttal to the rebuttal of prozesshindernde Einrede and the mediation of a plea on the merits when the first defense must be submitted to the arbitration proceedings in which the applicant until the arbitration award determined that the property dispute to court for water conservation measures to dispose of the watch was in effect for arbitration in the contract. In addition, the arbitration agreement and the court sentenced the same kinds of effects that resolved the final effect, especially at the same time the effect of foreign recognition and enforcement of the decision regarding the New York Convention arbitration award based on the recognition and enforcement of domestic and international effects are being recognized. Consequently, the arbitration agreement to take effect a valid arbitration agreement exists is determined by whether or not staying. Therefore, agreements between individual university entrance exams based on the company signed a contract regarding the effect of arbitration first, associated with individual university entrance exams, and the leading research and analysis, review, and examine the general concept of the arbitration agreement after the arbitration agreement between the parties focuses on information about the effects of study to contribute to the activation of the arbitration system is aimed at the individual university entrance exams.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.147-169
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• 2009

This paper deals with disputes incurred from the CISG provisions in relation with the conformity of goods with a view to finding the general way of approach made by the court and arbitration tribunal in the case laws for the interpretation of CISG based on 6(six) cases thereon. Throughout this study, it has been noted that the German Supreme Court devoted most in creating the general principle of CISG interpretation in relation with national compulsory law of regulation applicable on the conformity of goods. It was New Zealand mussels case in which the German supreme court decided that the exporting country's compulsory law of regulation would be applied in determining the conformity of goods. Furthermore, German supreme court added that CISG does not place an obligation on the exporter to supply goods, which conform to all statutory or other public provisions in force in the import state unless the same provisions exist in the export State as well, or the importer informed the exporter about such provisions existing in the import state, or the exporter had knowledge of the provisions due to special circumstances. It is stipulated in CISG that the goods conform with contract if they are fit for the purpose for which goods of the same description would ordinarily be used. When questions arise concerning matters governed by the CISG that are not expressly defined in the CISG, the question is to be settled in conformity with general principles on which the convention is based. Only when such a general principle cannot be found may the tribunal turn to other sources such as UNIDROIT Principles, Principles of European Contract Law and Lex Mercatoria, etc. Interpretation of CISG should be autonomous, in the sense that it should not depend on principles and concepts derived from any national legal system. Even where a CISG rule is directly inspired by domestic law, the court should not fall back on its domestic law, but interpret the rule by reference to the CISG with a view to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.54
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• pp.145-166
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• 2012

This article examines the limitations of the choice of law caused by Internationally Mandatory Rules in Entering into the Turn-Key Contracts. In June 2007, Clough Engineering, a corporation based in Western Australia, approached the Federal Court of Australia seeking injunctive relief and leave to commence proceedings against an entity located outside Australia, the Oil & Natural Gas Corp of India (ONGC). Clough had contracted with ONGC to provide a range of services in relation to the construction of gas and oil wells off the coast of India. The contract was governed by Indian law, and included a clause by which the parties agreed to submit their disputes to arbitration. Yet the Federal Court assumed jurisdiction over the dispute, principally because Clough had framed its claim as a plea for relief for contraventions of Australia's Trade Practices Act 1974. The result of this cases that it is possible for an arbitral tribunal to hear a claim made under the Trade Practices Act even if that claim arises "in connection with"a contract the proper law of which is not the law of Australia. However, in Transfield Philippines Inc v Pacific Hydro Ltd, the turnkey contract included a choice of law provision, selecting the law of the Philippines, and a clause providing that all disputes arising out of or in connection with the agreement were to be arbitrated under the ICC Rules, with the seat in Singapore. Hearings were in fact conducted in Melbourne, Australia, although all awards were published in Singapore. The result of this cases that it would not be appropriate for an Australian court to adjudicate claims for misrepresentation under Australian statutes dealing with misleading and deceptive conduct, once the arbitral tribunal had determined, applying appropriate choice of law rules, that such claims are governed by the law of the Philippines. To do so would lead to a multiplicity of proceedings, usurp the jurisdiction of the tribunal and deny the intention of the parties as expressed by them in the arbitration agreement. In short, the Internationally Mandatory Rules as an active part of public order create limitation of party autonomy in choice of law rules in a different way. The court is fully entitled to refuse to use those rules of law applicable on the contract which are in the contradiction to the internationally mandatory rules of law of the forum. And the court may give an effect to those Internationally Mandatory Rules that form a part of a law of foreign country when deciding about applicability of certain rules of applicable law.

• Korea Trade Review
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• v.45 no.1
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• pp.203-219
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• 2020

The parties shall perform all actions necessary for the proper and expeditious conduct of arbitral proceedings. This includes complying without delay with any determination of the tribunal as to any and all procedural or evidential matters, or with any order or directions of the tribunal, and where appropriate, taking without delay any necessary steps to obtain a decision of the court on a preliminary question of jurisdiction or law. The parties are free to agree on the powers of the tribunal in case of a party's failure to do something necessary for the proper and expeditious conduct of the arbitration. The parties' general duty may be based on agreements, such as the duty not to ask the court for a dispute, the duty to carry out arbitral awards, and the duty of confidentiality. In this study, as a premise, after confirming the discussion related to Article 40 (general obligations of the parties) of the law, the arbitral tribunal will analyze the authority to execute it based on Article 41. As a matter of fact, in LMAA Terms 2017, the parties want to analyze what is required in order to proceed effectively.

• Journal of Arbitration Studies
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• v.14 no.1
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• pp.213-244
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• 2004

This article studied on international trade dispute of enforcement procedure of foreign arbitral awards at Korean Supreme Court, which is especially related to New York Convention article 5, The key points of most enforcement procedure were about public policy according New York Convention article 5, 2, b and New York Convention article 5, 1. Particularly, Judgement of public policy from Supreme Court represented that the recognition and enforcement of foreign arbitral award is to present and protect basic moral conviction and social order from spoiling, and not only domestic situation but also international stability of transaction should be taken into consideration in judging on recognition and enforcement of foreign arbitral award, which is construed under certain limitation. In this point, you should be understand the concept on refusal reasons in enforcing of foreign arbitral awards

• Korea Trade Review
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• v.43 no.4
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• pp.27-50
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• 2018

This study focuses on the judgement of Seoul High Court' regarding the formation and performance of contracts applying the CISG. The purpose of this study is to provide legal understanding to contracting parties involved in contract for the international sale of goods that can be considered in raising the understanding of the CISG within the scope of the subject. This study aimed at the legal validity of judgments, the defects in reason for judgments and legal standards that could be established. The main contribution of this study is summarizing the facts of judgments and arguments of the parties and furthermore, in accordance with the order, the judgment order of the court and the decision criteria of the application law, the CISG articles comment and interpretation on the formation of the contract, legal bases of fundamental breach of contract, termination of contract, concurrent fulfillment and other supplementary matters and so on.