• 한국중재학회지:중재연구
• /
• 제14권2호
• /
• pp.243-279
• /
• 2004

The construction arbitration field has developed considerably since the latter half of the 1990s. Through analysis of construction arbitration cases taken up by KCAB, this paper intends to show the present condition and the improvement direction of construction arbitration in Korea. The number of construction arbitration cases filed at KCAB has been increasing rapidly after 1997, but recently the rate of increase has tended to decline. From 2000 to 2003 the number of arbitration cases increased 23％ each year, on average, but in 2003 the increase was only 7.6％. In the very beginning, public construction claims made up the majority of all construction cases, however, civil construction claims are increasing gradually. The arbitration amount in the construction field is very high, owing to public construction claims. For example, the arbitration amount per case was 5 billion won, on average,. in the public construction field. It is shown that the claimants of arbitration are mostly constructors and the main reasons for making claims are to demand payment for construction and payment for additional work. KCAB investigated the performance status of arbitration awards. The voluntary performance rate for awards in construction arbitration is nearly 80％ and in 11％, a suit was filed to appeal the arbitration award. In spite of the development of construction arbitration, some improvements are requested. There have been arguments about the effectiveness of selective arbitration agreement in the General Terms of Construction Contract. This has caused a decrease in arbitration cases, so improvements in this dispute settlement clause need to be made. Enforcement of arbitration awards is granted by the judgment of a court. Resulting from this, appeals for arbitration awards are not allowed, however, up to three appeals for the enforcement of awards are allowed in court. As such, the enforcement system for arbitration awards needs to be improved and simplified.

• 한국중재학회지:중재연구
• /
• 제22권1호
• /
• pp.111-130
• /
• 2012

Judgment on the validity of patents on the subject of an arbitration does not. In other words, the occurrence of patents generated by the administrative action, and such administrative action by an authorized agency may be treated as legitimate until it is canceled. However, recent Supreme Court judgment on novelty and inventive step as well as judgments about the validity of the patent also made possible by the judiciary. This progress even in the mediation of an arbitral award which is premised on the validity of patents can be seen that possible. However, if the arbitration by an arbitrator if possible a certain portion of the limit exists. In other words, the effect of arbitration between the parties is valid. This patent is valid and invalid in arbitration even if the judgment relative to the effect ceases. In addition, the arbitration award and patent invalidation trial is in progress at the same time, if you consequently will reach a different conclusion. This can cause problems of double track. In addition, by extending the critical target recognition and enforcement in other countries can cause problems. Despite these problems, now about the validity of patents that it is possible intervention is necessary to discuss again.

• 무역학회지
• /
• 제45권3호
• /
• pp.147-166
• /
• 2020

As the volume of trade between Korea and Vietnam increases, the number and amount of commercial disputes between Korean and Vietnamese companies are increasing. In the case of Vietnam, due to differences in the arbitration system and norms due to the socialist state system, foreign companies lack confidence in the settlement of disputes through commercial arbitration in Vietnam. At this point, it is necessary to not only discuss commercial disputes and settlements, but also to closely review and understand Vietnam's commercial dispute settlement system. Therefore, this study examines the current status and characteristics of Vietnam's commercial disputes and analyzes the actual problems of Vietnam Commercial Arbitration System that arise through the arbitral award of the Vietnam International Arbitration Center (VIAC), Vietnam's representative arbitration agency, and precedents on the recognition and enforcement of foreign arbitration awards in Vietnamese courts. In the end, this study seeks to revitalize the Vietnam Commercial Arbitration so that each disputed party may quickly deal with the commercial disputes, and seeks a more smooth solution through commercial arbitration in future trade claims between Korean and Vietnamese companies.

• 한국건설관리학회논문집
• /
• 제9권2호
• /
• pp.136-145
• /
• 2008

공공건설사업의 발주방식을 다양화하려는 차원에서 재정경제부는 2007년 10월 $\ulcorner$국가계약법시행령$\lrcorner$ 개정을 통해 기술제안형 입찰인 '기술제안입찰', '설계공모 기술제안입찰'을 새로이 도입하였다. 이러한 입찰은 사업의 특성 및 목적에 맞게 입찰자들에게 기술제안서를 요구한 후 이를 평가하여 낙찰자를 선정하는 방식이다. 본 연구는 국내에 처음 적용되는 기술제안형 입찰제도의 효과적인 운영을 위한 가이드라인을 제공하는 것을 목적으로 하고 있다. 이를 위해 국내외 관련 문헌 및 사례를 분석하여 운영모델의 틀을 구축하였으며, 이후 수차례의 전문가 자문을 통해 표준적인 운영 프로세스, 기술제안서 작성기준, 기술제안서 평가기준, 그리고 낙찰자 결정방법을 개발하였다. 발주자의 중요한 의사결정 요소인 낙찰자 결정방법은 가상 사례를 이용한 시뮬레이션을 수행하여 '기준적합최저가', '가중치', '가격조정입찰', '기술조정점수'의 4가지 낙찰방식이 갖는 정량적 인 특성과 적용기준을 시사점으로 도출하여 제시하였다.

• Journal of Korea Trade
• /
• 제27권1호
• /
• pp.176-191
• /
• 2023

Purpose - When recovered through arbitration a contractual penalty that is disproportionately high can become grounds for challenging an arbitral award or an obstacle to its enforcement within Russian jurisdiction. This article investigates how violation of the principle of proportionality can affect the enforcement and challenging of arbitral awards in Russia. Based on the examination of the current legislation, along with the analysis of recent court cases on the subject, the ultimate object of this article is to discern practical recommendations for Korean practitioners who are looking to challenge and/or enforce arbitral awards in Russian courts. Design/methodology - The research process included the reviewing of current Russian legislation conducted in concurrence with academic literature review, searching and analyzing recent court cases where the relevant legal provisions and concepts were applied, and formulating practical implications of the research at its final stage. Findings - Through its relation to the principle of fairness/justice the authors establish the connection between the principle of proportionality and the public policy of Russia. Analysis of recent court cases showed two conflicting trends of whether a disproportionate penalty can be considered a public policy violation. The authors offer practical recommendations on how to substantiate a relevant claim regarding contractual penalty reduction by the court, depending on the desired outcome. Originality/value - The article contains an up-to-date summary of the legal provisions on the principle of proportionality of civil liability in Russia and identifies the most recent trends in court practice on the issue that is not covered by existing studies.

• 한국중재학회지:중재연구
• /
• 제22권3호
• /
• pp.71-92
• /
• 2012

The significant increase in international trade over the last few decades has been accompanied by an increase in the number of commercial disputes between Korea and India. Understanding the Indian dispute resolution system, including arbitration, is necessary for successful business operation with Indian companies. This article investigates characteristics of India's Arbitration and Conciliation Act in order to help then traders who enter into business with Indian companies to settle their disputes efficiently. The Arbitration and Conciliation Act(1996) based on the 1985 UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976, has a number of characteristics including the following: (i) this act covers ad hoc arbitration and institutional arbitration (ii) parties to the arbitration agreement have no option except arbitration in case of any dispute (iii) the parties can choose their own laws, places, procedures, and arbitrators (iv) the decision of the arbitrators is final and binding (v)role of the court has been minimized and (vi) enforcement of foreign awards is recognized. However, there have been some court decisions that have not been in tune with the spirit and provisions of the Act. Therefore, Korean companies insert the KCAB's standard arbitration clause into their contracts and use India's ADR(Alternative Dispute Resolution) Methods to strategically resolve their disputes. Additionally, Korean companies investigate Indian companies' credit standing before entering into business relations with them.

• 한국중재학회지:중재연구
• /
• 제15권2호
• /
• pp.197-224
• /
• 2005

The purpose of this paper is to make research on the party's autonomy principle and the applicable law to the arbitration agreement, the applicable law to the validity of the arbitration agreement, the applicable law to the arbitrability of the arbitration agreement, the applicable law to the contracting ability of the arbitration agreement, and the applicable law to the method of the arbitration agreement. If no choice of law is made by the parties with respect to the arbitration agreement-which is the stand situation-the validity of the agreement may have to decided under its proper law, or under the law of the place of arbitration, or the law of the place of enforcement. If the subject matter is not arbitrable, the arbitration agreement remains without effect. The rules determining arbitrability may differ from one country to another, from one legal system to another. If a party is lacking capacity to enter into an arbitration agreement, the recognition and enforcement of the arbitral award may be refused at the request of the party against whom it is invoked. This principle is laid down in the New Yark Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The validity of an arbitration agreement sometimes also depends on the form in which it is made. Article II. 2 of the New York Convention states that the term 'agreement in writing' shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties of contained in exchange of letters or telegrams.

• 한국중재학회지:중재연구
• /
• 제17권2호
• /
• pp.71-100
• /
• 2007

To promote the way of resolving the increasing disputes regarding international intellectual property by arbitration, we should overcome uncertainty thwarting the dispute resolution; i.e., whether a dispute regarding intellectual property would be an arbitrable subject, whether the arbitration agreement would be valid and enforceable, and whether the arbitral award could be recognized and enforced in a foreign country. This article is intended to seek how to promote and facilitate the resolution of international disputes regarding intellectual property by arbitration. This article in Chapter II will examine the characteristics of the IP disputes first. Chapter III of this article will study arbitrability of IP disputes. Then, Chapter IV will discuss the requirements, validity, and effectiveness of arbitration agreement of international IP disputes. The author will discuss the procedure of arbitration of the international IP disputes in Chapter V, and finally the recognition and enforcement of foreign arbitral awards thereon in Chapter VI. Due to the so called 'territoriality principle' in intellectual property, the international disputes thereof confront numerous procedural setback, e.g., jurisdiction, conflict of laws, the recognition and enforcement of foreign judgments or awards. To overcome such setbacks, I propose resolution of international IP disputes by one-step arbitration procedure through widely recognizing the arbitrability of IP disputes, and utilizing unnational nature of arbitration. In addition, I propose to set up the principles as to arbitration of the international IP disputes as the American Law Institute has formulated the principles for International Intellectual Property Litigations. By setting up these principles, I am certain it will be helpful to just and prompt resolution of international IP disputes which occur more frequently these days.

• 무역상무연구
• /
• 제29권
• /
• pp.3-37
• /
• 2006

This writing is for the purpose of investigating the specific character and problem point of China arbitration system which has near 90 years history and overviewing the drift of system improvement which happens recently. The arbitration system of China which traditionally does not acknowledge ad hoc arbitration, unlike most of the other nations that employ The UNCITRAL model law and make it their own legislation, is restrictive to the parties concerned principle of private autonomy considerably. Also the independence of arbitration is delicate, because of a civil characteristic weakness of the arbitral institutions and the intervention of the courts on the arbitration procedure and award. The dual system of domestic and international arbitration which maintains after enforcement of 1994 arbitration law is often to be a primary factor interrupting the development of Chinese arbitration system and making it vulnerable to challenges. The system improvement demand of the recent time reflects this point and makes the arbitration system of China to a international standard rather than now, so it is a desirable direction for China to be as the member of the world economy to be globalization.

• 한국중재학회지:중재연구
• /
• 제24권3호
• /
• pp.125-169
• /
• 2014

In France, arbitration, both domestic and international, has recently been subjected to a major reform. This article discusses the content of the 2011 reform and its aftermath, while putting into perspective the current arbitration act in South Korea, an arbitration-friendly jurisdiction that contemplates reforming its own law. The two legal systems are characterized by their concern for efficiency and rationalization of the arbitration proceedings, through the codification of essential principles previously established by case law and through the promotion of the independence of this ADR vis-$\grave{a}$-vis state courts. The efficiency consideration is strengthened at every stage of the proceedings: from the arbitration agreement often considered valid and rarely challenged, through the proceedings for annulment, recognition and enforcement of the award, up to the judicial assistance of the French supporting judge towards the actual arbitral proceedings. Finally, new concerns are emerging: the increase of transparency and the arbitrability of disputes in some uncertain fields of law.