• 한국중재학회지:중재연구
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• 제23권1호
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• pp.133-152
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• 2013

Recently, the United Nations Commission on International Trade Law (UNCITRAL) has made progress toward resolving low value, high volume disputes in international e-commerce. At the Working Group's 26th session, two draft procedural rules were addressed. The first discussed the draft of Article 9, entitled "Decision by a neutral party." This is based on the suggestion in 26th session to have a "two track" system of ODR, one including negotiation, facilitated settlement, and arbitration phrases, and the other not including an arbitration phase. The second draft procedural rule, draft Article 10, regards the language of proceedings. In most cases of international e-commerce, the decision of language of an ODR proceeding is a matter of importance, for the language parties could differ from each other. This paper examines several implications of UNCITRAL for Korea, which has unstable ODR system.

• 무역상무연구
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• 제38권
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• pp.155-180
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• 2008

The purpose of this paper is to examine the major elements of Arbitration Clause in international investment contracts and to help the investor, especially foreign investors, considering these elements when they draft the contracts. First of all, to describe the extent of the arbitrable issues broadly is very important by using the phrase such as "disputes in connection with". Furthermore in order to be enforceable, the issues must be a subject-matter to be submitted to arbitration in accordance with the laws of the place of arbitration and the law application to the merits of the disputes (N.Y. Convention, Art. II). Second, the appointment of the arbitrators usually shall be based on the principle of freedom of contract. If the parties do not agree on the appointment, it is decided in accordance with the arbitration rules of the institution by the tribunal. Third, the procedural rules of the arbitration are the arbitration rules of the arbitration institution in case of institution arbitration, unless otherwise agreed. Forth, what is the most importance element of Arbitration Clause is the place of arbitration. In this case, also the principle of freedom of contract has priority. Unless otherwise agreed, Washington is the place of arbitration in case of ICSID Arbitration, but in case of ICC Arbitration, neutral third country may be the place of arbitration. However in case of ad hoc arbitration, both parties should indicate the place. If not, the whole arbitration may be paralysed by an uncooperative party. Besides the major elements, I examined the relation between the arbitration clause and award enforcement in terms of sovereign immunity. The enforcement of awards in the field of state contracts many encounter the problem of the sovereign immunity, which means that the State itself or the State enterprise is the contract partner. To avoid the this problems, it is advisable for the parties insert the clause such as ICSID Model Clause XIX.

• 환경영향평가
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• 제4권3호
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• pp.55-61
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• 1995

The European Community (EC) began dealing with the subject of environmental impact assessment (EIA) in the mid-1970s. After ten years of preparatory work and more than 20 draft versions, the EC Council of Ministers adopted, in 1985, the Directive on the assessment of the effects of certain public and private projects on the environment (85/337/EEC). This directive requires the member states to make EIA mandatory for certain projects. Its Article 3 defines the purpose of the instrument: "The environmental impact assessment will identify, describe and assess the direct and indirect effects of a project. There are no rules on scoping or on post-project analysis. However, member states are free to adopt, in their domestic legislation, more stringent rules regarding the scope and procedure of EIA. Consequently, they have developed national EIA systems which differ considerably from each other. Also, EIA practice in each of these countries is different from that in the others. In 1992, the EC Council adopted the 'Flora, Fauna, Habitat' Directive which lays down an additional EIA requirement. Member states will have to develop a network of 'European' nature conservation areas. Each project or plan possibly endangering these areas will have to be assessed whether it is in line with the protection purposes laid down for them. Although the directive does not say so explicitly, this means that a kind of EIA will have to be carried out for those projects and plans. For several years, the Commission has been developing proposals for a directive on EIA of plans and programmes ("strategic EIA"). This would supplement directive 85/337/EED, and would require and EIA for plans and programmes influencing decisions on specific projects(e.g. agricultural plans or energy programmes). At present, procedural and methodological questions of strategic EIA are being discussed extensively both within and without the European Union.