• 한국중재학회지:중재연구
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• 제16권1호
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• pp.219-251
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• 2006

As the scale of electronic commerce increases more and more, disputes in the electronic commerce also happen more frequently. As the development of electronic commerce is difficult without smooth settlement of dispute, the pursue of smooth settlement of dispute is very important. Regarding smooth settlement of dispute, the way of dispute settlement through Online Dispute Resolution(ODR) is pursued positively nowadays. However the responsibility of related parties still remains to complete such system. This paper divides related parties into the parties(seller, buyer), ODR providers, the neutral dispute resolver, and the governments. Later this paper examines the responsibility of related parties. As related parties complete their own responsibility, electronic commerce may develop more and more. Furthermore through the development of electronic commerce all nations will enjoy mutual benefit.

• 한국중재학회지:중재연구
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• 제29권3호
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• pp.39-52
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• 2019

There are various factors to consider when parties to an international agreement draft a dispute resolution clause in their written contract. These factors can be classified into two categories. The first category is about the parties and the nature of the contract, such as the parties' places of business and whether the contract contains a simple transaction or has a complicated nature. The second category is about the applicable rules of the parties' places of business or performance such as the private international law, service of process rules, and enforcement of court judgment and arbitration award rules. When parties to an international contract agree to a litigation, they normally choose a forum court and a governing law. In selecting a forum court and a governing law, the parties must consider private international law, service of process rules, and enforcement of judgement rules of candidate forums. In case the parties agree to an arbitration, they have to choose between institutional arbitration and ad hoc arbitration. For ad hoc arbitration, parties still need to further agree on which arbitration rules to use, and in which place the arbitration shall take place. Mediation involves a similar kind of decision as with arbitration. Traditionally, national courts of the parties' places of business have been used as litigation forums in dispute resolution clauses but, recently, arbitration is being increasingly employed as an alternative dispute resolution method in international contracts. Moreover, there have been international efforts to utilize mediation as a dispute resolution method in international commercial issues. Rather than simply taking a dispute resolution clause provided in a sample written contract, parties to an international contract must carefully consider various relevant factors in order to insert a dispute resolution clause which will work well for a particular contract.

• 한국중재학회지:중재연구
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• 제12권1호
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• pp.171-205
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• 2002

ADR (Alternative Dispute Resolution) is a system to settle disputes without having to pursue a judgment through the courts; it provides an alternative to conventional judicial proceedings. As such, ADR is available to resolve a wide range of disputes, ranging from minor disagreements between neighbors to contracts involving millions of dollars. One can say there has been “efficient resolution of a dispute” only when it has been settled rapidly and finally to the satisfaction of all parties concerned, inexpensively and in a transparent manner. In this respect, ADR may well be regarded as the most efficient method to resolve disputes. In order to establish and disseminate ADR as a practical dispute-settlement procedure, first, governmental financial support is necessary, rather than having to depend upon fees collected from the disputing parties. At the same time, various inducement policies also are required. The most important factor is to make people aware of the fact that ADR is a low-cost, speedy system and more practical compared with other procedures. Second, cooperation from legal circles, lawyers in particular, is absolutely necessary. If disputes become serious, the general public normally seeks out lawyers for advice. Third, disputing parties have to be convinced of the benefits of ADR, secure in the knowledge that ADR will provide them not only with economic benefit but also a satisfactory result. Diverse ADR procedures should be developed and implemented to facilitate participation in a comfortable atmosphere with a mutually friendly relationship. The most important factor in achieving the wider use of ADR, which is attracting more attention of late, is the expectation that it will bring a satisfactory resolution to the related parties in dispute. The trend of seeking a new dispute-settlement method also reflects the changing sense of values in society today. Therefore, one specific method is not suitable for all kinds of disputes. A proper system should offer different approaches according to the pattern and type of dispute and the parties concerned. In selecting a dispute-resolution system, several factors have to be considered - the relationship between the parties, their financial situations, the necessity of maintaining confidentiality, urgency for settlement, etc. In the light of all these, it is desirable for the disputing parties to select the most appropriate of the available systems, not blindly turning to the courts, if and when a dispute arises.

• 무역상무연구
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• 제25권
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• pp.165-187
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• 2005

Arbitration is a creature of contract. The parties agree that selective dispute resolution clause provides them with a choice to litigate or arbitrate certain disputes. Under the agreements, the parties had the option in the action. In the event any dispute arises between the parties concerning our representation or payment of our fees and disbursements which cannot be promptly resolved to our mutual satisfaction, you agree that dispute will be submitted to arbitration. Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. The selective arbitration agreement has become an accepted method of dispute resolution. However, the trend of dispute settlement has changed. The selective arbitrations clauses are to be construed as broadly as possible, and arbitration will be compelled unless it may be said with positive assurance that arbitration clause is not susceptible of an interpretation that covers the asserted dispute.

• 한국무역상무학회:학술대회논문집
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• 한국무역상무학회 2004년도 제32회 산학협동 세미나
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• pp.149-170
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• 2004

Arbitration is a creature of contract. The parties agree that selective dispute resolution clause provides them with a choice to litigate or arbitrate certain disputes. Under the agreements, the parties had the option in the action. In the event any dispute arises between the parties concerning our representation or payment of our fees and disbursements which cannot be promptly resolved to our mutual satisfaction, you agree that dispute will be submitted to arbitration. Arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. The selective arbitrations clauses are to be construed as broadly as possible, and arbitration will be compelled unless it may be said with positive assurance that arbitration clause is not susceptible of an interpretation that covers the asserted dispute.

• 한국중재학회지:중재연구
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• 제14권1호
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• pp.61-101
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• 2004

Information and communications technologies are affecting an economic and social transformation of all countries. Without exception international commercial dispute resolution systems are faced with change its mechanism to online technology. Dispute parties can seek redress through arbitration other than litigation or mediation. Traditional dispute resolutions do not match the cyber trade environment which is basically pursuit the speed and efficiency in cyberspace. Arbitration other than resolution methods have been considered to be match with the online environment which is including party autonomy, speed and internationally accepted and binding awards. Traditional arbitration, however is lack of time and different physical location relating all parties. So we now think cyberspace as for the resolving place which is online arbitration. Even the parties exist in different space and time they may meet in the same time and space without moving or trips. Nowadays there are many online arbitration service provider serving the resolution of dispute arising with online transaction. In this paper we study the tendency for online arbitration, the recognize uncertain matters and avoiding programs its matters when use the online arbitration between disputing parties under cyber trade environment.

• 한국중재학회지:중재연구
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• 제28권4호
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• pp.111-129
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• 2018

The foundation of arbitration is the arbitration agreement between parties. If no agreement to arbitrate exists, the parties should not send to arbitrate their disputes. In the United States, there are no provisions as to arbitrability under the Federal Arbitration Act. Before a court can enforce arbitration, it must first determine arbitrability. The general presumption is that the issue of arbitrability should be resolved by the courts. The question of whether parties have submitted a particular dispute to arbitration raises a question of arbitrability which is an issue for judicial determination unless the parties clearly and unmistakably have provided otherwise. Determining if the parties agreed to arbitrate a dispute involves inquiries into whether there is a valid agreement to arbitrate the claims, and the dispute falls within the scope of the arbitration agreement. Therefore, the purpose of this article is to review how to settle the issue of arbitrability in the U.S. federal courts.

• 한국중재학회지:중재연구
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• 제19권2호
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• pp.27-47
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• 2009

Concepts of mediation and conciliation as alternative dispute resolutions are often confusingly used. As to what is meant by mediation and conciliation, there is no uniform legal definition. However, there has been a distinction between two methods of dispute settlement under the international law (UN Charter, WTO DSU, NAFTA, EU mediation directive, WIPO Mediation Rules) although there is no clear definition on the terms of mediation and conciliation. And also under the domestic law such as U.K, France, Germany, a clear distinction has been made between two terms. Mediation means a facilitated negotiation between two parties through the intervention of a third party. A third and neutral party (mediator) help the parties in dispute to find their solution by managing a certain mediation protocol and facilitating communication between the parties while in conciliation, a third party evaluative the case and can suggest the parties a legally non-binding solution. Once the parties accept it, it becomes binding between them. However, in the U.S,, it seems that there is no practical use of distinguishing mediation and conciliation. The term of mediation is more commonly used than the term of conciliation and it has two kinds of mediation such as facilitative and evaluative mediation. Korea's conciliation system is close to conciliation or evaluative mediation. In conclusion, what is distinct between mediation and conciliation is the role of third party. If a neutral third party takes a role of advisor or facilitator, then he or she may employ a proper protocol to help the parties to find themselves their solution (mediation) while if a neutral person plays a role of evaluator, then he or she listens to the parties and suggest a solution to them (conciliation).

• 국제학술발표논문집
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• The 4th International Conference on Construction Engineering and Project Management Organized by the University of New South Wales
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• pp.350-356
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• 2011

Early neutral evaluation (ENE) is a fairly recent form of alternative dispute resolution procedure used in the construction industry. In the UK, ENE is usually carried out on an entirely without prejudice basis, however the parties may agree that any or part of it may be referred to at trial or any subsequent hearing. The early neutral evaluation consists of a preliminary assessment of the issues in dispute for use as a basis for negotiations which may result in a settlement of the dispute. An independent person is appointed by the parties who reviews the case and provides an opinion, in written form and in some detail, with reasons on the merits of the matters in dispute. The opinion is non-binding but provides the parties with what in the opinion of the independent person a formal tribunal may decide whether a court or an arbitrator, if the dispute is not resolved. However, ENE has yet to take off in the construction industry in the UK. This paper will explain this procedure and explore the use of it in the UK and internationally, considering the benefits and drawbacks of its use. It will consider whether or not it is more effective than other early resolution forms such as mediation and adjudication. It will argue and conclude that it is a very useful cost effective procedure, particularly in the resolution of complex disputes, whether local or international.

• 한국중재학회지:중재연구
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• 제19권3호
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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.