• Title/Summary/Keyword: Field note

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Brief Observation on Arbitration Agreement and Arbitral Award - Focusing on Construction Disputes - (중재합의와 중재판정에 관한 소고 -건설분쟁을 중심으로-)

  • Cho Dae-Yun
    • Journal of Arbitration Studies
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    • v.14 no.1
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    • pp.273-314
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    • 2004
  • There is a belief in the construction industry that the traditional court system may not be an ideal forum to effectively and efficiently resolve construction disputes due to the protracted proceedings and the three tier appeal system resulting in a long delay in the final and conclusive settlement of the dispute, relatively high costs involved, the lack of requisite knowledge and experience in the relevant industry, etc. Hence, they assert that certain alternative dispute resolution ('ADR') methods, such as mediation, conciliation, arbitration or a new system for dispute settlement in the form of any combination thereof should be developed and employed for construction disputes so as to resolve them more promptly and efficiently to the satisfaction of all the disputants concerned. This paper discusses certain merits of such assertions and the need for additional considerations for effective resolution of the construction disputes in light of the complexity of the case, importance of expert witnesses, parties' relationship and non-level playing field of the construction industry and so on. At the same time, however, given the inherent nature of disputes rendering the parties involved in an adversarial position, it would rather be difficult, if not practically impossible, to satisfy all the parties concerned in the dispute. Accordingly, in this study, it is also purported to address the demerits of such assertions by studying the situation from a more balanced perspective, in particular, in relation to the operation of such ADRs. In fact, most of such ADRs as stipulated by special acts, such as the Construction Industry Basic Act of Korea, in the form of mediation or conciliation, have failed to get support from the industry, and as a result, such ADRs are seldom used in practice. Tn contrast, the court system has been greatly improved by implementing a new concentrated review system and establishing several tribunals designed to specialize in the review and resolution of specific types of disputes, including the construction disputes. These improvements of the court system have been warmly received by the industry. Arbitration is another forum for settlement of construction disputes, which has grown and is expected to grow as the most effective ADR with the support from the construction industry. In this regard, the Korean Commercial Arbitration Board ('KCAB') has established a set of internal rules end procedures in operation to efficiently handle construction disputes. Considering the foregoing, this paper addresses the most important elements of the arbitration, i.e., arbitration agreement and arbitral award, primarily focusing on the domestic arbitrations before the KCAB. However, since this parer is prepared for presentation at the construction disputes seminar for the public audience, it is not intended for academic purposes, nor does it delve into any specific acadcmic issues. Likewise, although this paper addresses certain controversial issues by way of introduction, it mainly purports to facilitate the understanding of the general public, including the prospective arbitrators on the KCAB roster without the relevant legal education and background, concerning the importance of the integrity of the arbitration agreement and the arbitral award. In sum, what is purported in this study is simply to note that there are still many outstanding issues with mediation, conciliation and arbitration, as a matter of system, institutional operation or otherwise, for further study and consideration so as to enhance them as effective means for settlement of construction disputes, in replacement of or in conjunction with the court proceeding. For this purpose, it is essential for all the relevant parties, including lawyers, engineers, owners, contractors and social activists aiming to protect consumers' and subcontractors' interests, to conduct joint efforts to study the complicated nature of construction works and to develop effective means for examination and handling of the disputes of a technical nature, including the accumulation of the relevant industrial data. Based on the foregoing, the parties may be in a better position to select the appropriate dispute resolution mechanism, a court proceeding or in its stead, an effective ADR, considering the relevant factors of the subject construction works or the contract structure, such as the bargaining position of the parties, their financial status, confidentiality requirements, technical or commercial complexity of the case at hand, urgency for settlements, etc.

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Analysis of Climate Change Adaptation Researches Related to Health in South Korea (한국의 건강 분야 기후변화적응 연구동향 분석)

  • Ha, Jongsik
    • Journal of Climate Change Research
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    • v.5 no.2
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    • pp.139-151
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    • 2014
  • It is increasingly supported by scientific evidence that greenhouse gas caused by human activities is changing the global climate. In particular, the changing climate has affected human health, directly or indirectly, and its adverse impacts are estimated to increase in the future. In response, many countries have established and implemented a variety of mitigation and adaptation measures. However, it is significant to note that climate change will continue over the next few centuries and its impacts on human health should be tackled urgently. The purpose of this paper is to examine domestic policies and research in health sector in adaptation to climate change. It further aims to recommend future research directions for enhanced response to climate change in public health sector, by reviewing a series of adaptation policies in the selected countries and taking into account the general features of health adaptation policies. In this regard, this study first evaluates the current adaptation policies in public health sector by examining the National Climate Change Adaptation Master Plan(2011~2015) and Comprehensive Plan for Environment and Health(2011~2020) and reviewing research to date of the government and relevant institutions. For the literature review, two information service systems are used: namely, the National Science and Technology Information Service(NTIS) and the Policy Research Information Service & Management(PRISM). Secondly, a series of foreign adaptation policies are selected based on the global research priorities set by WHO (2009) and reviewed in order to draw implications for domestic research. Finally, the barriers or constraints in establishing and implementing health adaptation policies are analyzed qualitatively, considering the general characteristics of adaptation in the health sector to climate change, which include uncertainty, finance, technology, institutions, and public awareness. This study provides four major recommendations: to mainstream health sector in the field of adaptation policy and research; to integrate cross-sectoral adaptation measures with an aim to the improvement of health and well-being of the society; to enhance the adaptation measures based on evidence and cost-effectiveness analysis; and to facilitate systemization in health adaptation through setting the key players and the agenda.