• Journal of Arbitration Studies
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• v.26 no.2
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• pp.45-66
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• 2016

The FAA provides that a district court may make an order vacating an arbitration award upon the application of any party to the arbitration where there was evident partiality on the arbitrator's behalf. The U.S. Supreme Court in the case of Commonwealth Coatings Corp. held that arbitrators must disclose to the parties "any dealing that might create an impression of possible bias." Justice White attempted to limit the scope of evident partiality to instances where an arbitrator has a "substantial interest" in the dispute before disclosure is required. The Second Circuit held that if an arbitrator thinks that a nontrivial conflict of interest might exist, the arbitrator must either (i) conduct an investigation into the potential conflict, or (ii) disclose to the parties why he or she thinks there could be a conflict. Further, the arbitrator must disclose his or her intent not to investigate the matter. By utilizing a reasonable impression of partiality standard, the Ninth Circuit held that evident partiality can exist despite an arbitrator's actual acknowledgement of a conflict, and if an arbitrator fails to discharge his or her duty to investigate potential conflicts of interest, his or her constructive knowledge of the conflicts can give rise to evident partiality.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.71
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• pp.171-194
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• 2016

In the UK, the legal principle for the duty of disclosure established in Carter v Boehm case was codified in the Marine Insurance Act 1906("MIA"). The duty of disclosure under the MIA is the pre-contractual duty by the insured and therefore, the insured should disclose the every material circumstance that would influence a prudent insurer's judgement. If the insured violates the duty of disclosure, the insurer is entitled to avoid the insurance contract, regardless of whether there was the deliberate or reckless breach, which is unfavorable to the insured. The Law Commission reviewed the duty of disclosure under the MIA in detail and provided the Insurance Act 2015 for the purpose of enhancing the interests of the insured. The Insurance Act 2015("Act"),while the basic legal structure of the duty of disclosure under the MIA still remains, amends it in respect of non-consumer insurance and furthermore, integrate the duty of disclosure and the duty not to misrepresent into the duty of fair presentation of risk. And according to the Act, the insurer is required to more actively communicate with the insured before entering the contract with the result that, if the insured fails to disclose the material circumstance but provides the sufficient information to put the insurer on notice, the insurer should further inquire for the purpose of the insured's revealing the material circumstance. In addition, the Act details the insured's constructive knowledge of material circumstance by reviewing the current case law and introduces a new system for the insurer's proportionate remedy against the insured's breach of the duty of fair presentation of risk.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.365-387
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• 2000

One of the central and primary doctrine of the law of marine insurance is that the contract of indemnity entered into by assured and insurer is a contract of the utmost good faith. The notion of utmost good faith is a well established doctrine derived from the celebrated case of Carter v. Boehm(1766), decided long before the inception of the Marine Insurance Act(MIA). With the codification of the law, the principle found expression in sections $17{\sim}20$ of the MIA 1906. In section 17 is presented the general duty to observe the utmost good faith, with the following sections introducing particular aspects of the doctrine, namely, the duty of the assured and brokers to disclose material circumstances, and to avoid making misrepresentations. It is somewhat surprising that section 17, being a long founded doctrine, has not attracted the attention of the courts until very recently. Given that the most significant manifestations of uberrimae fidei are non-disclosure and misrepresentations, fulfillment of the obligation of utmost good faith was, not unreasonably, for a long time perceived in terms of the duty to disclose and not to misrepresent. However, Black King Shipping Corporation v. Massie, 'Litsion Pride'(1985) has clarified that the duty of disclosure stems from the duty of utmost good faith, and not vice versa. The duty of utmost good faith is an independent and overriding duty, with the ensuring sections on disclosure and representations providing mere illustrations of that duty. It is now clear that there are important questions with regard to the general doctrine and as to the nature and scope of any duty of good faith continuing after the contract of insurance is made which require separate and fuller discussion. The purpose of this paper is to review the nature and scope of the duty of utmost good faith.

• The Korean Society of Law and Medicine
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• v.10 no.2
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• pp.85-113
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• 2009

In this paper, the Judgment 2007DA76290 of the Korean Supreme Court was analysed in two points of the legal theory and litigation. The judgment arouses some issues of medical malpractice liability. They includes the concept of the complications and permanent lesion and the difference between them, some problems in a judge's applying the requirements for the physician's tort liability to the medical malpractice situations, the theory of obligation de moyens related with the burden of proof of the negligent conduct for a physician's liability for misperformance of contract, the influence of a patient's physical conditions on the physician's liability, the breach of duty to disclose in selecting the safer one of the treatment methods bringing about the complications or leaving the permanent lesion and so on. In the situations of the case referred to above, the plaintiff should have tried to establish that a reasonable physician in the specific situation of the case would have substituted the safer method of treatment for the method in the case. If the plaintiff had succeeded in establishing it, he or she could have recovered even the physical harm resulting from the permanent lesion brought about by the complications of the specific treatment in the case. The plaintiff failed to do so and recovered only the emotional distress which the patient suffered owing to the physician's breach of the duty to disclose. Therefore the legal malpractice of the counsel might be found in this case.

• Journal of the Korean Institute of Navigation
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• v.7 no.1
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• pp.83-103
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• 1983

The duty of disclosure it is a preliminary requirement to effect marine insurance contract between the assured and the underwriter. The contract of Marine Insurance is called a uberrimae fidei contract, the assured, therefore, in the law of marine insurance, shall communicate a material circumstances to the latter before the policy to be effected. As growing the maritime industries in Korea, there is forming a larger marine insurance market, accordingly, and having a wide relation with the practice of the marine insurance in England. It means that the most of the legal theories of the marine insurance would be adopted by the English Marine Insurance Case Law and M.I.A., 1906. From the viewpoint of the said this author has tried out to study what is the duty of disclosure of the marine insurance based upon the English Marine Case Law.

• Journal of the Korean Society of Costume
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• v.50 no.5
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• pp.77-90
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• 2000

The purpose of this study is to disclose the dimension of job characteristic, working place situation. and clothes selection, which are variable on clothes selection, to research the relation of job characteristic, working place situation, and clothes selection and to disclose the feature of consumers by each group in accordance with job characteristic. The follows are summary of this study result : The concept structure of job characteristic is composed by four types. Working place situation related with clothes selection are consisted of five types. Professional women selected clothes in accordance with nine feature. Job characteristic is related with working palace situation and influences on clothes selection. The persons influenced by activity state regarded personality as important when select clothes. The persons influenced by duty state regarded harmony and control as important, instead of, they ignored conformity. People select occupation according to individual feature, so the feature of consumers, working place environment, working place situation are different in accordance with job characteristic, as a result we can find differences in clothes selection suitable for working palace and purchasing.

• Korea Trade Review
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• v.44 no.3
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• pp.137-154
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• 2019

This study analyzes the major provisions of the UK Insurance Act 2015 and Marine Insurance Act 1906 on the duty of disclosure under the doctrine of utmost good faith. Marine insurance contracts are based on "utmost good faith" and one aspect of this is that MIA 1906 imposes a duty on prospective policy holders to disclose all material facts. In the Insurance Act 2015 of the United Kingdom, the contents of the precedent were enacted such that we have borrowed the legal principles of common law until now. The insurer is required to more actively communicate with the insurer rather than passively underwriting and asking questions of the insured. The Act details the insured's constructive knowledge of the material circumstance by reviewing the current case law and introduces a new system for the insurer's proportionate remedy against the insured's breach of the duty of fair presentation of risk. This is a default regime, which may be altered by agreement between the parties.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.46
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• pp.211-235
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• 2010

According to the commercial law in Korea, a marine cargo insurance contractor (policyholder, insured person, agent) has the duty to disclose risks before establishing an insurance contract and the obligation to notify changes in risks after before establishing the contract. Marine cargo insurance policy clauses include one about the obligation to notify changes in risks. This clause assumes that an insurance contract should be implemented according to what has been answered to the important questions asked by the insurer in connection with the insurant's duty to disclose before establishing an insurance contract, and it stipulates that, if any change in what has been disclosed should be notified to the insurer since it is regarded as a change in risks. Neglecting the obligation to notify may lead to the termination of the appropriate insurance contract by the insurer. The problems here concern the clauses about changes in risks and about the obligation to notify. The problems are like these. Can it be that the circumstances which might be seen in the past as changes in risks according to the territorial sea laws and institute cargo clauses stipulated long ago are considered as such still today? And a marine cargo insurance policy till valid when changes in risks have not been properly notified by the original discloser of risks to the insured who currently holds the marine cargo insurance policy, which, unlike other insurance policies, is a marketable security? In Korea, the commercial law has a clause the obligation to notify changes in risks established based on the territorial sea laws and institute cargo clauses. In this regard, this study aims to consider if the clause still valid today or not and, if not, to propose alternatives to the clauses.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.14
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• pp.103-152
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• 2000

English contract law has traditionally taken the view that it is not the duty of the parties to a contract to give information voluntarily to each other. In English law, one of the principal distinctions between insurance contract law and general contract law is the existence of the doctrine of utmost good faith in insurance law. The doctrine gives rise to a variety of duties, some of which apply before formation of the contract while others apply post-formation. This article is, therefore, designed to analyse the overall structure and problems of the doctrine of utmost good faith in English marine insurance law. The results of analysis are as following : First, the requirement of utmost good faith in marine insurance law arises from the fact that many of the relevant circumstances are within the exclusive knowledge of the assured and it is impossible for the insurer to obtain the facts to make a appropriate calculation of the risk that he is asked to assume without this information. Secondly, the duty of utmost good faith provided in MIA 1906, s. 17 has the nature as a bilateral or reciprocal, overriding and absolute duty. Thirdly, the Court of Appeal in Skandia held that breach of the pre-formation duty of utmost good faith did not sound in damages since the duty did not arise out of an implied contractual term and the breach did not constitute a tort. Instead, the Court of Appeal held that the duty was an extra-contractual duty imposed by law in the form of a contingent condition precedent to the enforceability of the contract. Fourthly, the scope of the duty of utmost good faith is closely related to the test of materiality and the assured is required to disclose only material circumstances subject to MIA 1906, s. 18(1) and 20(1). The test of materiality, which had caused a great deal of debate in English courts over 30 years, was finally settled by the House of Lords in Pan Atlantic and the House of Lords rejected the 'decisive influence' test and the 'increased risk' test, and the decision of the House of Lords is thought to accept the 'mere influence' test in subsequent case by the Court of Appeal. Fifthly, the insurer is, in order to avoid contract, required to provide proof that he is induced to enter into the contract by reason of the non-disclosure or misrepresentation of the assured. Sixthly, the duty of utmost good faith is, in principle, terminated before contract is concluded, but it is undoubtful that the provision under MIA 1906, s. 17 is wide enough to include the post-formation duty. The post-formation duty is, however, based upon the terms of marine insurance contract, and the duty lies entirely outside s. 17. Finally, MIA 1906, s. 17 provides expressly for the remedy of avoidance of the contract for breach of the duty. This means rescission or retrospective avoidance of the entire contract, and the remedy is based upon a fairly crude 'all-or-nothing' approach. What is needed in English marine insurance law is to introduce a more sophiscated or proportionate remedy.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.217-248
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• 2018

This paper reviews the Supreme Court of Japan in Decision of December 12, 2017, 2016 (Kyo) 43 (2011) concerning arbitrator's duty of disclosure and reasonable investigation under the Japan Arbitration Act (Arbitration Act). The Supreme Court of Japan recently issued a precedential decision interpreting, for the first time, the arbitrator disclosure requirements of the Arbitration Act. Under Article 18(4) of the Arbitration Act, arbitrators have an ongoing obligation to disclose circumstances which may give rise to justifiable doubts as to their impartiality or independence. The Supreme Court held that Article 18(4) of the Arbitration Act - requiring arbitrators to disclose all "facts likely to give rise to doubts as to his/her impartiality or independence" - (1) is not satisfied by blanket disclosures or advance waivers of potential future conflicts, and (2) requires disclosure of facts both known to an arbitrator or "that can be normally ascertained by an investigation that is reasonably possible${\cdots}$" This new standard presents opportunities and challenges for enforcing arbitration awards in Japan, and suggests measures that both arbitrators and parties can use to protect their awards. Also, the Supreme Court's new standards for evaluating arbitrator conflict disclosures suggest some measures that both arbitrators and parties to arbitration in Japan can take to protect the enforceability of their awards. The key factual question posed by the Supreme Court's ruling was whether an arbitrator's conflicts check was reasonable. Maintaining records regarding a review of potential conflicts or any investigation provides a ready source of proof in case of a future challenge. The Supreme Court has spoken clearly that so-called advance waivers of potential conflicts are not effective under Japanese law. Instead, to the extent that potential conflicts arise during the course of arbitration, they should be specifically disclosed.