• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.46
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• pp.381-406
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• 2010

The enforcement of international arbitration raises a variety of procedural and related issues in national and international arbitral laws. In addition to the problems it is not easy to understand the rights and enforcement of interim measures by arbitral tribunal. Many countries and international rules allow the arbitral tribunal to submit the interim measures applied by a dispute party. However, interim measures are not recognised and enforced by itself in international commercial arbitration. It has not been completed in the rules of arbitration nationally and internationally. This is the reason why the confirmation of international and national laws is important to effect interim measures practically. In the case of Korean arbitral laws do not include articles of enforcement of interim measures even permit rights of decision of interim measures by arbitral tribunal in the national arbitral laws improperly and unreliably. This paper discuses the deficits of enforcement of interim measures which is submitted the type of award by the arbitral tribunal. The paper also points out and refers the revised model law of arbitration by UNCITRAL in 2006 which was changed to allow the interim award and should be imposed its enforcement of any types of interim measures by the arbitral tribunal in international commercial arbitration.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.76
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• pp.21-47
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• 2017

Interim measures by an arbitral tribunal aim to protect the parties' rights before or during arbitral proceedings for avoiding frustration of the final award in international commercial disputes. Even though decisions of the interim measure are expected to be performed by parties directly during the arbitral processing, it is not easy to be provided by the arbitral tribunals cause of lack the power to enforce their decisions directly against the parties. Particular court supports mechanism for enforcement directly to assistance to arbitral tribunal's decisions. Decisions on interim measures are provisional. Even though the arbitration is ongoing to request interim measure directly to the arbitral tribunal, relevant courts are able to ensure effective relief cause by the difficulty of limited rights of the arbitral tribunal. In this time both revised Korean Arbitration Act in 2016 and UNCITRAL 2006 revised Model Law are complemented to attach articles for recognition and enforcement of interim measures by arbitral tribunal during the arbitration processing. It could be possible to enforcement of decisions of interim measures by arbitral tribunal on the revised arbitration law. In this paper it is considered the problems and alternatives on related applicable articles and articles of recognition and enforcement for the interim measures by arbitral tribunal under the revised UNCITRAL Model law and Korean Arbitration Act.

• Journal of Fisheries and Marine Sciences Education
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• v.14 no.1
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• pp.57-73
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• 2002

Illegal fishing is often cited as a principal cause of the failure of fisheries management, expecially fishing efforts regulations in traditional fisheries management. Usually, illegal fishing problems are perceived to be equivalent to inadequate enforcement, and policy prescription then follow to strengthen enforcement programs. The purpose of this paper is to analyze the illegal fishing behavior relatively recent emphasis on fishing efforts regulations in traditional fisheries management. The analysis focuses on measuring, explaining and developing the effectiveness way of enforcement strategies responding to imperfectly managed fishing efforts regulations through illegal fishing behavior and avoid enforcement fishing efforts measures. A model of fishermen fishing behavior and profit-maximizing decision making is analyzed to determine optimal fishing at individual fisherman level in response to fishing efforts regulation. The results of economic analysis of the enforcement of illegal fishing in traditional fisheries management results are as follows: First, illegal fishing will occur only if enforcement effort is not so high as to remove the incentive to do so, and if the effectiveness of avoidance is not too great, nor its cost too low. Second, avoidance effort will occur at a level jointly proportional to the extent of illegal activity and of enforcement; for given levels of the latter, the desired avoidance effort increase with its effectiveness and decrease with its cost Third, to improve the effectiveness of enforcement, understanding avoidance behavior appears to be crucial to any efforts. Forth, enforcement and fishermen behavior interact depends strongly on characteristics of avoidance, specifically its cost and effectiveness. When avoidance is neither too cheap nor too effective, the interaction is regular. Fifth, in this case, at low levels of enforcement, fishers respond to increases in enforcement by increasing avoidance, but at higher enforcement levels, it becomes uneconomical to continue to do so, and avoidance decreases with enforcement. Sixth, illegal fishing activity decreases steadily with enforcement, so the fishery manager is able, in theory, to reduce illegal fishing toward zero by increasing enforcement. If, however, avoidance is very inexpensive and/or very efficient/ then the optimal level of avoidance will increase indefinitely with increasing enforcement. Finally, less fishery enforcement is required if fishermen have less incentive to overfish, and fishermen have less incentive to avoid fishery enforcement measures.

• Journal of Arbitration Studies
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• v.26 no.3
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• pp.67-91
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• 2016

In an era where the international investment and trade between Korea and China grow daily, the importance of international arbitration cannot be overstated. The Korean Arbitration Law was enacted with reference to the UNCITRAL Model Law. When the Chinese Arbitration Law was being enacted, the UNCITRAL Model Law was also referred to, but there are some discrepancies between the two. This article conducts comparative analysis based on the Korean and the Chinese Arbitration Laws, the Chinese Civil Procedure Law and the KCAB and the CIETAC arbitration rules. In order to adopt the UNCITRAL Model Law amended in 2006, Korea revised its Arbitration Law in 2016. The revised Law includes a more comprehensive legal regime regarding interim measures, emergency arbitrator, etc. In China, the enforcement of foreign-related arbitral awards and foreign arbitral awards is carried out mainly by intermediate people's courts. In China, the report system to the higher people's court for refusing the enforcement of foreign-related arbitral awards and for refusing the recognition or enforcement of foreign arbitral awards has the effect of safeguarding foreign-related arbitral awards and foreign arbitral awards in China. Both Korea and China joined the New York Convention, and domestic courts may refuse the recognition and enforcement of foreign arbitral awards according to the New York Convention.

• Journal of Radiation Protection and Research
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• v.49 no.1
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• pp.40-49
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• 2024

Background: This study aimed to prioritize policy measures to improve radiation safety management in medical institutions using the analytic hierarchy process. Materials and Methods: It adopted three policy options-engineering, education, and enforcement-to categorize safety management measures, the so-called Harvey's 3Es. Then, the radiation safety management measures obtained from the current system and other studies were organized into action plan categories. Using the derived model, this study surveyed 33 stakeholders of radiation safety management in medical institutions and analyzed the importance of each measure. Results and Discussion: As a result, these stakeholders generally identified enforcement as the most important factor for improving the safety management system. The study also found that radiation safety officers and medical physicists perceived different measures as important, indicating clear differences in opinions among stakeholders, especially in improving quality assurance in radiation therapy. Hence, the process of coordination and consensus is likely to be critical in improving the radiation safety management system. Conclusion: Stakeholders in the medical field consider enforcement as the most critical factor in improving their safety management systems. Specifically, the most crucial among the six specific action plans was the "reinforcement of the organization and workforce for safety management," with a relative importance of 25.7%.

• Journal of Arbitration Studies
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• v.27 no.3
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• pp.53-76
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• 2017

Korean businesses, and their legal representatives, have observed the improvements of enforcement of commercial judgments through arbitration over traditional collections litigation in U.S. Courts-due to quicker proceedings, exceptional cost savings and more predictable outcomes-in attaching assets within U.S. jurisdictions. But how are the 2016 interim measures implemented by the Arbitration Act of Korea utilized to avoid jurisdictional and procedure pitfalls of enforcement proceedings in the Federal Courts of the United States? Authors examine the necessary prerequisites of the U.S. Federal Arbitration Act as adopted through the New York Convention, to which Korea and the U.S. are signatories, as distinguished from the Panama Convention. Five common U.S. arbitration institutions address U.S. "domestic" disputes, preempting U.S. state law arbitrations, while this article focuses on U.S. enforcement of "international" arbitration awards. Seeking U.S. recognition and enforcement of Korean arbitral awards necessitates avoiding common defenses involving due process, public policy or documentary formality challenges. Provisional and conservatory injunctive relief measures are explored. A variety of U.S. cases involving Korean litigants are examined to illustrate the legal challenges involving non?domestic arbitral awards, foreign arbitral awards and injunctive relief. Suggestions aimed toward further research are focused on typical Korean business needs such as motions to confirm foreign arbitration awards, enforce such awards or motions to compel arbitration.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.73-106
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• 2004

The UNCITRAL Arbitration Working Group began its deliberations on the topic of interim measures of protection at its thirty-second session (Vienna, 21-30 March 2000), when the Working Group expressed general support for a legal regime governing enforcement of interim measures of protection ordered by the arbitral tribunal. Also the Working Group took a preliminary analysis of whether there was a need for a uniform rule on court-ordered interim measures of protection in support of arbitration. The Working Group agreed, at its thirty-third session (Vienna, 20 November-1 December 2000), that the proposed new article to the UNCITRAL Model Law on International Commercial Arbitration on enforcement of interim measures of protection (tentatively numbered article 17 bis) should include an obligation on courts to enforce interim measures if prescribed conditions were met. At its thirty-fourth session (New York, 21 May-1 Jun 2001), in addition to continuing its review of draft article 17 bis, the Working Group proceeded to consider a text revising article 17 of the UNCITRAL Model Law, which defined the scope of an arbitral tribunal's power to order interim measures and included an additional provision on the granting of interim measures on an ex parte basis. Discussions in relation to revised drafts of article 17 and 17 bis of the UNCITRAL Model Law have continued at the fortieth session ( New York, 23-27 February 2004). Article 17 of the UNCITRAL Model Law provides that the arbitral tribunal may order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect to the subject matter of the dispute. However it may be noted that the article does not deal with enforcement of such measures.

• Journal of Arbitration Studies
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• v.26 no.4
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• pp.3-41
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• 2016

This paper reviews the problems on the arbitral awards enforcement in the 2016 Korean Arbitration Act. In order to get easy and rapid enforcement of the arbitral awards, the new arbitration act changed the enforcement procedure from an enforcement judgement procedure to an enforcement decision procedure. However, like the old arbitration act, the new act is still not arbitration friendly. First of all, there are various problems in the new act because it does not approve that an arbitral award can be a schuldtitel (title of enforcement) of which the arbitral award can be enforced. In this paper, several problems of the new act are discussed: effect of arbitral award, approval to res judicata of enforcement decision, different trial process and result for same ground, possibility of abuse of litigation for setting aside arbitral awards and delay of enforcement caused by setting aside, infringement of arbitration customer's right to be informed, and non-internationality of enforcement of interim measures of protection, inter alia. The new arbitration act added a proviso on article 35 (Effect of Arbitral Awards). According to article 35 of the old arbitration act, arbitral awards shall have the same effect on the parties as the final and conclusive judgement of the court. The proviso of article 35 in the new act can be interpret two ways: if arbitral awards have any ground of refusal of recognition or enforcement according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court; if arbitral awards have not recognised or been enforced according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court. In the case of the former, the parties cannot file action for setting aside arbitral awards in article 36 to the court, and this is one of the important problems of the new act. In the new act, same ground of setting aside arbitral awards can be tried in different trial process with or without plead according to article 35 and 37. Therefore, progress of enforcement decision of arbitral awards can be blocked by the action of setting aside arbitral awards. If so, parties have to spend their time and money to go on unexpected litigation. In order to simplify enforcement procedure of arbitral awards, the new act changed enforcement judgement procedure to enforcement decision procedure. However, there is still room for the court to hear a case in the same way of enforcement judgement procedure. Although the new act simplifies enforcement procedure by changing enforcement judgement procedure to enforcement decision procedure, there still remains action of setting aside arbitral awards, so that enforcement of arbitral awards still can be delayed by it. Moreover, another problem exists in that the parties could have to wait until a seventh trial (maximum) for a final decision. This result in not good for the arbitration system itself in the respect of confidence as well as cost. If the arbitration institution promotes to use arbitration by emphasizing single-trial system of arbitration without enough improvement of enforcement procedure in the arbitration system, it would infringe the arbitration customer's right to be informed, and further raise a problem of legal responsibility of arbitration institution. With reference to enforcement procedure of interim measures of protection, the new act did not provide preliminary orders, and moreover limit the court not to recognize interim measures of protection done in a foreign country. These have a bad effect on the internationalization of the Korean arbitration system.

• Journal of Arbitration Studies
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• v.15 no.2
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• pp.263-292
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• 2005

In China, as far as the enforcement of the award is concerned, a three-pronged regime exists : each for domestic, foreign-related and foreign awards. As opposed to domestic awards, foreign-related awards are defined as those involving 'foreign-element.' Among them, this article focuses on the enforcement regimes of foreign-related and foreign arbitral award, and strives to provide a practical outlook of the arbitral award enforcement regime in China. For that, this article consists of five chapters. In chapter I, the purpose and scope of this study are mentioned; In Chapter II, the types, the statutory framework, the related measures, the statistical assessment on enforcement of arbitral awards are addressed. Chapter III points out some issues on the enforcement regimes of foreign-related and foreign arbitral awards, with focus paid to the recognition of foreign-related arbitral awards, the substantive judicial review of foreign-related arbitral awards, and the refusal of enforcement with the social and public interest ground. Chapter VI introduces two non-enforcement cases of foreign-related and foreign arbitral awards. Lastly in chapter V, the author makes a proposal to improve the enforcement regime in China. Although China already obtained a certain level of achievement, she still need to be undertaken by the government and judicial authorities to offset the negative effects of some obstacles to hamper the enforcement such as protectionism so that she may create a more favorable arbitration environment.

• Journal of Arbitration Studies
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• v.29 no.2
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• pp.161-199
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• 2019

As international trades between Korea and China increase, the number of civil disputes also increases. The civil dispute settlement system and the court system in China are distinctive from those of Korea. China has its own court systems which are characterized by the Chinese Communist System. Due to the influence of the decentralized local autonomy tradition, the case laws of each Province in China are not unified throughout the China. This is partly because only two instances are provided in China, and the parties cannot appeal to the Supreme People's Court of China unless there is a special reason. In Korea, three instances are provided and parties can appeal to the Supreme Court if a party so chooses. In addition, there are many differences in the judicial environment of China compared to Korea. Therefore, if there is a dispute between a Korean party and a Chinese party, arbitration is recommended rather than court litigation. This article examines the points to be considered for interim measures in China during arbitration. Where the seat of arbitration is Korea, interim measures cannot be taken by the order of the Chinese court in the middle of or before arbitration procedures. On the other hand, it is possible to take interim measures through the Chinese court in the middle of or before the arbitration procedure in China or Hong Kong. It also reviews the points to be noted in case of the enforcement of arbitration awards in China where permission from the upper Court is required to revoke or to deny the recognition or enforcement of a foreign-related or foreign arbitration award.