• Journal of Arbitration Studies
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• v.33 no.2
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• pp.85-108
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• 2023

In international commercial arbitrations that arise from an international commercial contract, arbitral tribunals ruling on the merits of the arbitration apply the law governing the contract. The parties to contract are free to designate the law under the principle of parties autonomy. This paper examines this principle under the Korean Arbitration Act, and makes some legislative suggestions. For this purpose, this paper first discusses what is the scope of matters covered by the law governing the contract, what are the rules of conflict-of-laws for determining the law governing the contract, and what happens when the arbitral tribunal incorrectly applies the law governing the contract? Then, this paper further goes to examine issues such as the form of choice-of-law agreement, the explicit or implicit choice of law, the parties' ability to choose the rules of law including lex mercatoria, the change of choice-of-law agreement, the independence of choice-of-law clause.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.20
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• pp.23-62
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• 2003

The Law amending the Conflict of Laws Act of the Republic of Korea ("Korea"), which had taken two years to prepare, was promulgated on April 7, 2001 and finally took effect as of July 1, 2001. Accordingly, the old earlier Conflict of Laws Act which was called "Seoboesabeop" in Korean ("Prior Act"Old Act) was replaced by the new Conflict of Laws Act called "Gukjesabeop" in Korean ("New Act"). In fact the Old Act Prior Act was promulgated in 1962, but it was regarded as outdated from the moment of its promulgation. However, since the Old Act because it was modeled after the chapter of the Private International Law of the Einfuehrungsgesetz zum Buergerlichen Gesetzbuch (EGBGB) of the Federal Republic of Germany ("German PIL") and the Japanese Private International Law ("Japanese PIL") which had been promulgated toward the end of the 19th century., the Old Act was viewed as outdated from the moment of its promulgation. As a result of the drastic change of the environment for international trade of which that has taken took place in parallel with the global information technology revolution on a global basis, the scope of issues to be addressed which should be resolved by the conflict of laws principles has been remarkably expanded, and various new issues of an entirely which are quite new in its type and nature have arisen been raised. In the field of conflict of laws in its narrow sense, a revolution or crisis of the traditional conflict of laws has been brought about by the advent in the United States rise of a the new methodology for of the conflict of laws, of the United States of America and in the process of overcoming the such crisis the conflict of laws of the European continent has undergone substantial changes such as the diversification of the connecting principles, the expansion of the principle of party autonomy and the consideration of the value of the substantive law to protect socio-economically weaker parties of. The Prior Act, which was based on However, with the mechanical connecting principles and contained various outdated the inappropriate provisions, the Old Act could not cope with the issues raised by the internationalization and globalization of the Korean society. Furthermore In addition, the Old Act Prior Act was regarded as insufficient in that it lacked rules on international jurisdiction to adjudicate, or international adjudicatory jurisdiction, whereas the expectation of the public was that the Conflict of Laws a Act should function as the "Basic Law of the International Legal Relationships"encompassing rules on international jurisdiction given the increase of international disputes. Furthermore the private international law has also attracted more attention from the Korean At the beginning of the new Millennium, thanks to the promulgation of the New Act, I believe that Korea has succeeded in achieving the modest goal of reflecting in the its codification substantial parts of the major developments of the private international law which the leading advanced continental European countries had achieved during the last century. The New Act has followed the approach of the traditional conflict of laws of the European continent. It is a product of the efforts to eliminate the then existing problems of the Prior Old Act and to adapt the Korean private international law regime to the standard of international conventions and national laws of advanced countries. Unlike the Prior Old Act which was heavily dependent upon the prior Japanese PIL and the prior German PIL, the New Act has been prepared by taking into full account the Rome Convention, the Swiss PIL, the new German PIL which took effect in 1986 and various conventions adopted by the Hague Conference. Therefore, the New Act has substantially reduced dependence upon the Japanese PIL and the German PIL, and has gained relatively greater universal validity. The fact that the New Act expressly declares that the determination of international jurisdiction is a matter of conflict of laws is a clear sign that it has departed from the German tradition which confines the conflict of laws principles to choice of laws rules, and moved toward a broader and more practical approach widely accepted in the area of conflict of laws. It is hoped, and I am personally confident, that the New Act will be able to achieve its intended objectives in the 21st century as the basic law for the ever-increasing legal relationships with a foreign element.