• Journal of Arbitration Studies
• /
• v.28 no.3
• /
• pp.35-53
• /
• 2018

The purpose of this paper is to focus on the development of the arbitration system, such as the establishment of the arbitration industry and expanding the scope of arbitration fields. The solution method of arbitration differs greatly from that of the court's trial process. This can be seen in the way of autonomous conflict resolution. Therefore, the role of arbitrator is a very important function. In this sense, it seems necessary to establish a professional arbitrator system. Now the Arbitration Promotion Act has been enacted and interest in the arbitration industry is also rising. It is necessary to deal effectively with new incidents according to changes in the legal environment internationally. In order to do this, it is imperative to train professional arbitrators. A training plan for arbitration manager to assist this is now under consideration. The coming of the Fourth Industrial Revolution and the growth of artificial intelligence (AI) technology will simply stop the uniform way of determining winners by lawsuits. Even in new companies entering new markets as well as overseas companies, assistance from arbitration experts is indispensable in order to effectively deal with international trade disputes that will develop in the future. In addition to fostering the arbitration industry, it is necessary to train experts in domestic and foreign arbitration and arbitration practitioners to provide high-quality legal services. For these human resource development measures, we will explore the subject and procedural methods. The Arbitrators Association should concentrate on these matters and be cautious when focusing on the training of arbitrators and arbitration managers through the selection process. The Arbitrators Association must strengthen the level of new education (designation / consignment). Measures must be taken in order to grant such procedures as well as subsequent steps.

• Journal of Arbitration Studies
• /
• v.34 no.1
• /
• pp.75-101
• /
• 2024

"ESG management" guides companies to prioritize corporate social responsibility and sustainable development as key management objectives, going beyond mere financial performance pursuits. This approach involves creating a sustainable and robust supply chain by urging companies, acting as 'supply chain managers', to implement ESG management practices alongside their 'supply chain partners'. The domestic business community has been quick to respond to this trend, recognizing that failure to adhere to ESG standards set by organizations such as the EU and SEC could lead to severe repercussions, including exclusion from international trade and reputational damage. POSCO and NAVER, two leading Korean companies, are at the forefront of practicing ESG management effectively. They have both produced and publicly disclosed ESG management reports, showcasing their success in enhancing supply chain ESG management. However, as supply chain managers enforce ESG-related obligations on their suppliers, the likelihood of disputes between the parties may increase. In scenarios where supply chain ESG management leads to conflicts between supply chain managers and suppliers, commercial arbitration emerges as a viable solution for dispute resolution. This method offers several advantages, including the arbitrators' expertise, time and cost efficiency, the binding nature of decisions akin to a court's final judgment, international recognition under the New York Convention, confidentiality, and ample opportunity for parties to be heard. Our analysis focuses on the emerging disputes between supply chain managers and suppliers within the context of supply chain ESG management, particularly examining the cases of POSCO and NAVER. By categorizing the expected types of disputes and assessing the appropriateness of commercial arbitration for their resolution, we highlight the effectiveness of this approach. Furthermore, we propose leveraging the Korean Commercial Arbitration Board's role to enhance the use of arbitration in resolving supply chain ESG disputes, underscoring its potential as a strategic tool for maintaining sustainable and harmonious supply chain relationships.

• Journal of Arbitration Studies
• /
• v.10 no.1
• /
• pp.3-25
• /
• 2000

At its thirty-second session in 1999, the UNCITRAL had before it the requested note entitled "Possible future work in the area of international commercial arbitration." After concluding the discussion on its future work in the area of international commercial arbitration, it was agreed that the priority items for the working group should be conciliation, requirement of written form for the arbitration and enforceability of interim measures of protection. the Commission entrusted the work to the Working Group on Arbitration which held its thirty-second session at Vienna from 20 to 31 March 2000. The Working Group discussed agenda item 3 on the basis of the report of Secretary General entitled "Possible uniform rules on certain issues concerning settlement of commercial disputes : conciliation, interim measures of protection, written form for arbitration agreement." At its thirty-three session in 2000, the UNCITRAL had before it the report of Secretary General on agenda item 3 discussed by the Working Group. The Working Group discussed the issues relating to certain aspects of conciliation proceedings ; (1) Admissibility of certain evidence in subsequent judicial or arbitral proceedings ; (2) Role of conciliatior in arbitration or court proceedings ; (3) Enforceability of settlement agreements reached in conciliation proceedings ; (4) Other possible items for harmonized treatment : a) Admissibility or desirability of conciliation by arbitrators b) Effect of an agreement to conciliate on judicial or arbitral proceedings c) Effect of conciliation on the running of limitation period d) Communication between the conciliator and parties ; disclosure of information e) Role of conciliator. It was generally considered that decisions as to the form of the text to be prepared should be made at a later stage when the substance of prepared solutions would become clearer. However, it was noted that model legislative provisions seemed to be appropriate form for a number of matters proposed to be discussed in the area conciliation. There was general support in the Working Group for the proposition to perpare a legislative regime governing the enforcement of interim measures of protection ordered by arbitral tribunals. It was generally considered that legislative regime should apply to enforcement of interim measures issued in arbitration taking place in State where enforcement was sought as well as outside that State. It was generally observed that there was a need for provisions which conformed to current practice in international trade with regard to requirements of written form for arbitration agreement. The view was adopted by the Working Group that the objective of ensuring a uniform interpretation of the form requirement that responded to the needs of international trade could be achieved by : preparing a model legislative provision clarifying, for avoidance of doubt, the scope of article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration : and adopting a declaration, resolution or statement addressing the interpretation of the New York Convention that would reflect a broad understanding of the form requirement. There was general agreement in the Working Group that, in order to promote the use of electronic commerce for international trade and leave the parties free to agree to the use of arbitration in the electronic commerce sphere, article II(2) of the New York Convention should be interpreted to cover the use of electronic means of communication as defined un article 2 of the Model Law on Electronic Commerce and that it required no amendment to do that. The UNCITRAL may wish to consider to the desirability of preparing uniform provisions on any of those issues concerning conciliation and arbitration proceedings, possibly indicating whether future work should be towards a legislative text or non-legislative text.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.42
• /
• pp.133-160
• /
• 2009

In International trade the buyer and seller are normally separated from on another not only by distance but also by differences in language and culture. It is rarely possible for the performance of obligations to be simultaneous and the performance of contracts therefore calls for trust in a situation in which the parties are unlikely to feel able to trust each other unless they have a longstanding and successful relationship. Thus the seller under an international contract of sale will not wish to surrender documents of title to goods to the buyer until he has at least an assurance of payment, and no buyer will wish to pay for goods until he has received them. A gap of distrust thus exists which is often bridged by the undertaking of an intermediary known and trusted by both parties who will undertake on his own liability to pay the seller the contract price in return for the documents of title and then pass the documents to the buyer in return for the reimbursement. This is a common explanation of the theory behind the documentary letter of credit in which the undertaking of a bank of international repute serves as a "guarantee" to each party that the other will perform his obligations. The independence principle, also referred to as the "autonomy principle", is at the core of letter of credit or bank guarantee law. This principle provides that the letter of credit or bank guarantee is independent of the underlying contractual commitment - that is, the transaction that the credit is intented to secure - between the applicant and the beneficiary ; the credit is also independent of the relationship between the bank and its customer, the applicant. The most important exception to the independence principle is the doctrine of fraud in the transaction. A strict interpretation of the rule that the guarantee is independent of the underlying transaction would lead to the conclusion that neither fraud nor manifest abuse of rights by the beneficiary would constitute an objection to payment. There is one major problem related to "Independent guarantees", namely abusive or unfair callings. The beneficiary may make an unfair calling under the guarantee. The countermeasure of beneficiary's unfair calling divided three cases. First, advance countermeasure namely by contract. In other words, when the formation of the contract, the parties must insert the Force Majeure Clause, Arbitration Clause to Contract, and clear statement to the condition for demand calling. Second, post countermeasure namely by court. Many countries, including the United States, authorize the courts to grant an order enjoining the issuer from paying or enjoining the beneficiary from receiving payment under the guaranty letter. Third, Export Insurance. For example, the Export Credit Guarantees Department is prepared, subject to certain conditions, to cover the risk of unfair calling. Of course, KEIC in Korea is cover the risk of the all things for guarantees. On international projects, contractor performance is usually guaranteed by either a standby letters of credit or Independent guarantee. These instruments will be care the parties.

• International Commerce and Information Review
• /
• v.8 no.4
• /
• pp.105-121
• /
• 2006

This study is related with the judgements of our country's supremcourt against the transaction of Letter of Credit which is beneficiary's fraudulent trade deal. In this case I think to analyse the judgements and to present the basic grounds on which the judgements were established. In Letter of Credit transaction, there are the major parties, such as, beneficiary, issuing bank, or confirming bank and the other parties such as applicant, negotiating bank, advising bank and paying bank. Therefore, in this cases, the beneficiary, the French Weapons' Supplier who did not shipped the commodities, created the false Bill of Lading, let his dealing bank make payment against the documents presented by him and received the proceeds from the negotiating bank or collecting bank, thereafter was bankrupted and escaped. For the first time, even though the issuing bank conceived that the presented documents were inconsistent with the terms of L/C. it did not received the payment approval from the applicant against all the discrepancies, made the negotiating bank pay the proceeds to exporter and thereafter, delivered the documents to the applicant long after the time of the issuing bank's examination of documents. The applicant who received the documents from the issuing bank, instantly did not examine the documents and inform to the issuing bank whether he accepted the documents or not. Long time after, applicant tried to clear the goods through custom when he knew the bill of ladings were false and founded out the documents had the other discrepancies which he did not approved. As the results, the applicant, Korea Army Transportation Command claimed, that the issuing bank must refund his paid amount because issuing bank examined the documents unreasonably according to u.c.p 500 Act 13th, 14th. In spite of the applicant's claim, the issuing bank argued that it paid the proceeds of L/C reasonably after receiving the applicant's approval of an discrepancy of document, the delayed shipment, but for concerning the other discrepancies, the trivial ones, the applicant did not examined the document and noticed the discrepancies in reasonable time. Therefore the applicant sued the issuing bank for refunding it's paid proceeds of L/C. Originally, this cases were risen between Korea Exchange Bank and Korea Army Transportation Command. As result of analysing the case, the contents of the case case have had same procedure actually, but the lower courts, the district and high courts all judged the issuing bank was reasonable and did not make an error. As analysing these supreme court's judgements, the problem is that whether there are the applicant's liability of examining the documents and informing its discrepancies to the issuing bank or not, and if the applicant broke such a liabilities, it lost the right of claiming the repayment from issuing bank. Finally to say, such applicant's liabilities only must be existed in case the documents arrived to the issuing bank was delivered to the applicant within the time of the documents examination according to u.c.p 500 Act 14, d. i. But if any the documents were delivered to applicant after time of the documents examination, the applicant had not such liabilities because eventhough after those time the applicant would have informed to the issuing bank the discrepancies of documents, the issuing bank couldn't receive repayment of its paid proceeds of document from the negotiating bank. In the result after time of issuing bank's examination of documents, it is considered that there's no actual benefit to ask the applicant practice it's liability. Therefore finally to say. I concluded that the Suprem Court's judgement was much more reasonable. In the following, the judgements of the supreme court would be analysed more concretely, the basic reasons of the results be explained and the way of protecting such L/C transaction would be presented.

• Journal of Korea Trade
• /
• v.24 no.2
• /
• pp.31-52
• /
• 2020

Purpose - This study mainly investigates two potential legal regimes expected to govern the use of electronic bills of lading: the Rotterdam Rules (2009) and the UNCITRAL Model Law on Electronic Transferable Records (2017). Widespread use of electronic bills of lading has been unsuccessful partly due to the absence of a uniform legal regime and protracted uncertainties. This paper aims to carry out an assessment of the possibilities where either of two potential legal regimes could provide certainty to the effect and validity of the use of electronic bills of lading, and contribute to the facilitation of electronically transferring the rights to goods carried by sea. Design/methodology - This paper first introduces two legal instruments and the relevance to electronic bills of lading. Since neither of these legal instruments has yet entered into force, the following section looks into the ratification or enactment possibilities based on a literature review and track records of the past legal regimes of the same kind. Assessment of the different adoption possibilities further requires comparative work of the two legal instruments, which will be based on an analysis of relevant provisions and a literature review. The literature review on the Rotterdam Rules delves into various studies and data produced since the UNCITRAL's adoption in 2009. The literature review on the UNCITRAL Model Law on Electronic Transferable Records heavily relies on UNCITRAL working group documents from 2011 to 2017 together with the final explanatory note. Findings - The main findings can be summarized as follows. Application of the Rotterdam Rules would negate the role of the UNCITRAL Model Law on Electronic Transferable Records assisting in the implementation of the Rotterdam Rules due to some conflicting issues. Enactment of the UNCITRAL Model Law alone can sufficiently provide a higher level of certainty in the use and effect of electronic bills of lading so long as lawmakers and parties are aware of some issues with the application. What concerns potential users most is the extension of the status quo, where neither of the legal instruments have any effect. It is necessary to take a number of alternatives into consideration, such as promotion of standard clauses and confirmation by a court ruling. Originality/value - Existing studies focus either on the Rotterdam Rules or on the UNCITRAL Model Law, but not both. Not many papers have yet dealt with the Model Law, which was adopted by UNCITRAL only 2 years ago, particularly in the context of a potential legal regime for electronic bills of lading. This paper attempts to introduce the differences between the two legal instruments in regulating the use of electronic bills of lading while providing an assessment of the various possibilities for which parties involved in international trade can be better prepared for the changing legal environment.

• The Korean Journal of Air & Space Law and Policy
• /
• v.35 no.2
• /
• pp.197-224
• /
• 2020

This paper reviews and criticizes some issues as to the case of A and Others v. Finnair Oyj [2020] Case C-832/18 by examining EU Regulations and practical point of views. Under this case, the travellers brought an action against Finnair in light of the Air Passenger Regulation12, seeking compensation for both the first cancelled flight, and the delayed re-routed flight. Finnair had paid the first compensation, but refused to grant the second claim, arguing that the regulation did not set out that passengers were eligible for a second claim in those situations, and that the delay of the second flight was a consequence of 'extraordinary circumstances' under the regulation. The Court of Appeal in Helsinki has asked the CJEU whether an air passenger is entitled to a further compensation where a re-routed flight they have agreed to take is delayed, where both the original and rerouted flight are operated by the same air carrier. The CJEU held that the regulation does not in any way limit the rights of passengers where they find their flights being re-routed. As such, under earlier CJEU case law, the relevant travellers here were entitled to compensation for cancellation of the first flight and delay of the second flight. It also disagreed with Finnair's assessment that the technical failure in the re-routing flight was a matter of extraordinary circumstances.

• Journal of the Korean Society of Marine Environment & Safety
• /
• v.28 no.4
• /
• pp.577-586
• /
• 2022

The increasing trade volume between Korea and China has rapidly expanded the maritime transport between the two countries. However, safety, particularly considering the ship collisions in the Yellow Sea and East Sea waters, has not been fully ensured. These collision accidents in that region endanger traffic safety and the marine environment, moreover, it has the potential to cause legal complexity because Korea and China haver domestic legislation, that are considerably different in some aspects. International conventions and domestic legislation in China provide detailed laws with respect to ship collisions, however, the theory of ship collision infringement still needs to be improved, enriched, and developed. Because these laws are not very clear on the resolution of disputes resulting from ship collisions, we focused on the final judgments by the Supreme Court of China (SPC), and the judicial judgments set by the Maritime Court of China. This study aimed to explore the domestic legislation applicable to disputes related to ship collisions in China, and comparatively investigate the legal provisions of Korea and China on the issue of ship collisions, particularly on the aspect of damage compensation, fault ration, and liability apportionment.

• Journal of Arbitration Studies
• /
• v.20 no.1
• /
• pp.41-65
• /
• 2010

It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. For the promotion of fair and free competition, it is increasingly wide-ranging antitrust legislation across the world. It is matter for debate what can an arbitral tribunal do when confronted with an allegation that the contract under which the arbitration is brought is itself an illegal restraint of trade or in some other way a breach of antitrust law. The underlying question is how to accommodate the conflicting congressional policies favoring resolution of private controversies by arbitration and encouraging private suits to protect the public interests served by the antitrust laws. It is necessary to inquire into the arbitrability of antitrust issues on case-by-case basis, because the types of them are quite diverse. If antitrust issues are the dispute in private laws and the contracting parties agreed to submit to arbitration disputes which have arisen or which may arise between them in the antitrust issues, the antitrust disputes are arbitrable. Not only international antitrust disputes but also domestic antitrust disputes are capable of being resolved by arbitration. When the public interests in the enforcement of antitrust legislation are asserted, it is possible to justify the annulment or the refusal of the recognition or the enforcement of an arbitral award that ignores public policy as a matter of it.

• Journal of Korean Society of Archives and Records Management
• /
• v.11 no.1
• /
• pp.273-298
• /
• 2011

The Treaty of Friendship, Commerce and Navigation between the Chosun dynasty and Japan and the United States of America etc. began signing procedures from Feb. 1876. Thus, Busan port became an open port to foreign vessels in 1876. This has resulted in Busan port becoming the greatest port in Korea. This study explored records which were made by the Chosun dynasty and Japan on the opening and development of Busan port. The results are as follows ; According to making treaties between the Chosun dynasty and foreign countries, Chosun dynasty gradually opened a door to the international community. Various institutions were established in and around Busan port by Chosun and Japan. For example, maritime customs, a court of justice, police station by the Chosun side, a Japanese consulate, the Board of Trade for Japan etc by the Japan side. Records made by or related to these institutions and on the development of the Busan port during the open-port period and the Japanese colonial period were preserved at the Kyujanggak Institute for Korean Studies, the National Institute of Korean History, and the Busan Metropolitan Simin Municipal Library.