• 한국중재학회지:중재연구
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• 제24권3호
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• pp.47-77
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• 2014

Ever since its introduction in the 1927 ICC Arbitration Rules, scrutiny of awards by the ICC Court has been a cornerstone feature of ICC arbitration. Most players involved in the arbitral process are likely to concede that a certain level of review of arbitral awards is both desirable and beneficial. Indeed, proponents among the users are frequently influenced in their choice of the ICC as the administering arbitral institution, based on their strong conviction that time and money invested in the resolution of a dispute is ultimately only well spent if awards are voluntarily complied with or at least less susceptible to be set aside. By providing a look behind the scenes of the scrutiny process, the article does away with tales of excessive intervention on behalf of the arbitral institution when reviewing and approving awards and demystifies the role played by the ICC Court throughout its close interaction with arbitral tribunals operating under the ICC Rules. The article further argues that the scrutiny process can be a highly efficient tool that helps to increase the quality and enforceability of awards rendered under the aegis of the ICC.

• 무역상무연구
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• 제39권
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• pp.179-220
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• 2008

The notion of the 'court' is most unique to ICC arbitration. This paper focuses on what the court is and how it works and what the role and the duties of the Court under the ICC arbitration imply for the KCAB International Arbitration Rules. The Court is an administrative body that administers arbitrations taking place under the ICC Rules of Arbitration. The Court consists of 126 members from 88 countries around the world. Court members participate in decision-making process by way of attending the committee sessions and plenary sessions. At the Court's committee sessions, the Court fixes advance on costs; reviews the prima facie existence of arbitration agreements; fixes the place and language of arbitration, and the number of arbitrator(s); confirms and approves arbitrators; scrutinizes draft awards, determines the costs of arbitration; decides on extensions related to Terms of Reference, draft awards and correction and interpretation of the awards. At the Court's plenary sessions, the Court performs only two responsibilities: the challenge or replacement of arbitrators or the scrutiny of draft awards. The Court is required to scrutinize draft awards involving states or state entities, drafts with huge amounts in dispute or complex technical or legal questions, and as well as draft awards to which a dissenting opinion has been attached. Turning to the KCAB International Arbitration Rules, Article 1(3) provides that the KCAB shall establish an International Arbitration Committee. Further, it is provided that the KCAB shall consult with the said Committee with respect to challenge and replacement/removal of arbitrators pursuant to Article 1(3). The notion and role of the International Arbitration Committee was originally adapted from the Court to ICC arbitration, but its role was quite reduced in the process of enactment of its Rules. Accordingly, I examined the detailed roles of the Court to ICC arbitration in this paper and hereby suggest that the KCAB International Arbitration Rules shall be amended in the following ways: The Secretariat of the KCAB shall: fix advance on costs at the first stage and the costs of arbitration at the final stage of the proceedings; determine the number of arbitrators; review the prima facie of existence of arbitration agreement; confirm arbitrators; decide extensions related to time table, draft awards and correction and interpretation of the awards. I, also, suggest that the arbitral tribunals shall fix the place of arbitration and the language of arbitration and make a final decision on the validity of arbitration agreement. With regard to the International Arbitration Committee, it is desirable for its Rules to empower the Committee to recommend any prospective arbitrator and to review and decide challenge and replacement/removal of arbitrators.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.23-41
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• 2007

The role of ICC Court of Arbitration in ICC Arbitration is critical in maintaining the good reputation and worldwide recognition. While most arbitration institutions are the products of regional on national private associations, which play a relatively limited role in appointing or confirming the arbitrators, the Court of Arbitration is not only international in the appointment of arbitrators through the each National Committee, but also intervene in the confirmation of the prospective arbitrators proposed by the parties. Thus the ICC Arbitration is undoubtedly the most highly-supervised form of institutional arbitration available. The purpose of this paper is to examine the appointment and confirmation system of ICC Arbitration, to find the distinctive features of the ICC Rules of Arbitration and to check how to apply the features in the Rules of International Arbitration for the Korean Commercial Arbitration Board(KCAB Rules). Although the KCAB Rules have inherent limitations in the appointment of the arbitrators comparing with the ICC Court. They do not have any confirmation system of the arbitrator proposed by the parties. Although no arbitral institutions is in a position to guarantee completely the ultimate quality and efficacy of the process, the ICC, more than any other institution has historically endeavored to do so through a combination of the efforts of its International Court of Arbitration and National Committees. Composed of legal professionals of more than 75 nationalities, the Court, with the support of its permanent Secretariat in Paris, brings to bear on the decisions that it is responsibility to make the collective and disparate knowledge and experience of a multinational body. Therefore, if the KCAB wants to attract many international disputes, it should try to benchmark the ICC Rules of Arbitration, expecially the Article 9, to secure the prominent arbitrators throughout the world, even though a lot of limitations are exist. The positive role of the ICC Court of Arbitration gives us very important signal.

• 무역상무연구
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• 제33권
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• pp.145-164
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• 2007

The Arbitration costs provided in Article 31 consist of arbitrators' fees, arbitrators' expenses, ICC administrative expenses, expenses of experts appointed by the Arbitral Tribunal, and parties' costs. Among them the first three items are independently determined by the Court in accordance with the Scale, while another two items are determined by the arbitrator and each party. The three items determined by the Court are communicated by Secretariat to the Arbitral Tribunal for inclusion in the award following the approval of the draft submitted to the Court. Also the final award may decide which of the parties shall bear them or in what proportion they shall be borne by the parties. According to Article 31(3), the arbitrators have complete jurisdiction or discretion to allocate the costs. Three common approaches are as follows; First, all of the costs are borne by the losing party. Second, all of the costs are allocated in proportion to the outcome of the case. Third, all of the costs determined by the Courts are shared equally by the parties and both parties bear their own costs. But, both parties may include intentions in accordance with the principle of party autonomy. For example, if the parties wish to ensure that the arbitration costs be shared equally and that the arbitrator make no allocation of costs or fees, the following sentence could be added to the arbitration clause in their contract. "All costs and expenses of the arbitrators [and the arbitral institution] shall be borne by the parties equally; each party shall bear the costs and expenses, including attorneys' fees, of its own counsel, experts, witness and preparation and presentation of its case" And also, if the parties wish expressly to link any allocation of costs, and fees to the result of the award the following could be added to the arbitration clauses. "The arbitrators may award to the prevailing party, if any, as determined by the arbitrators, its costs and expenses, including attorneys' fees"

• 무역상무연구
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• 제31권
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• pp.81-106
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• 2006

The Terms of Reference are one of the most distictive features of ICC Arbitration. No document of this type is required to be drawn up under the rules of any of the other major international arbitration institutions. The purpose of this paper is to examine their advantages and to introduce main contents provided in Article 18 of ICC Rules of Arbitration, which results in the wide recognition of the Terms of Reference. As the volume of our international commercial transaction ranks almost ten in the world, the frequency using ICC Arbitration is expected to increase continuously. The Terms of Reference provide the parties and the arbitrators with an opportunity to identify and agree on procedural and other matters, such as the applicable law, the language of the arbitration and the timetable for the arbitration. They also afford the parties and the arbitrators to identify the substantive issues that are addressed in the arbitration and to delimit the precise scope of the Arbitract Tribunal's mandate. The contents of the Terms of Reference which are provided in Article 18(1) include the summary of parties claims, the list of issues and procedural rules. For the effects of the Terms of Reference, they are not intended to replace the parties' arbitration agreement. But they may in certain circumstances be regarded as a form of submission agreement. Article 18(2) provides that the Terms of Reference shall be signed by the parties and the Arbitral Tribunal, and requires the Arbitral Tribunal to transmit a signed copy of the Terms of Reference to the Court within two months of the date on which the file was transmitted to it by the Secretariat. The Court enjoys the power to extend the two-month time limit for the Terms of Reference on the reasoned request of the Arbitral Tribunal or on the Court's own initiative. Article 18(3) provides that if any of the parties refuses to take part in the drawing up of the Terms of Reference or to sign the same, they shall be submitted to the Court for approval. Article 18(4) allows the Arbitral Tribunal to extablish in a separate document a provisional timetable. This is a provision that encourages the acceleration of the arbitraction process. The timetable provided for therein is merely "provisional" and may be modified, as necessary, during the course of the arbitration.

• 무역상무연구
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• 제28권
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• pp.91-117
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• 2005

The purpose of this paper is to examine practical and legal considerations in the choice of the "Seat of Arbitration". As the selection of the "Seat of Arbitration" in an international commercial contract is vital both judicially and practically, so to speak, in terms of enforceability of award, judical interference in arbitration proceedings, relative convenience and expense, and the selection of arbitrators, the selection should be carefully considered and examined. In case of institutional arbitration, when the arbitration clause does not nominate the seat, the administrator or the secretariat of the institution or the arbitrator tribunal would usually determine the seat. On the contrary in case of ad hoc arbitration, Unless otherwise agreed by the parties, the "Seat of Arbitration" would be determined according to the rules which are selected by parties or their arbitrators. To avoid confusing situation about the selection of the seat, this writer would like to recommend ICC or LCIA with each Standard Arbitration Clause. If the parties want any national arbitration institution because of the expenses incurred in international institution, AAA or CEPANI is recommendable in terms of the reputation, operating system and recognized performance. Specially ICC Court of Arbitration usually examines the award before it is issued, so the enforceablity would go up. Thus when the parties lay down the arbitration clause in their contract they should confirm whether the "Seat of Arbitration" is fixed or not. If not, at least they should examine the arbitration rules which would be applied, and know in advance how the seat be determined.

• 무역상무연구
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• 제20권
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• pp.387-421
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• 2003

On the above, a comparison between preliminary draft conventions and comments by the Int'l Chamber of Commerce, contents of preliminary draft convention, problems and alternative are discussed. The conclusions are as follows thereof : The laws of MLEC and MLES made preparation for electronic era of CISG. But electronic circumstances are more changed than the time of regulation of them. Therefore the business world needs a stand-alone convention dealing broadly with the issues of contract formation in electronic commerce. At last, preliminary draft convention delivered a second round. But the base of the instrument was also MLEC and MLES. The revised preliminary draft convention is much amended beyond preliminary draft convention. At its forty-one sessions, the working group reviewed articles 1-11 of the revised preliminary draft convention presented by the secretariat. The remainder was pending until the time of its forty-two sessions. Therefore, on the base of deliberations and decisions of that sessions and them of thirty-six sessions of UNCITRAL, which will be held on comming november, the draft convention which will be prepared by the secretariate, be re-revised preliminary draft convention. According to review of working group on them, preliminary draft convention will officially be draft convention or revise by secretariate. Under these situations, my points of view on draft convention are as follows : As though e-UCP is used carring out side by side with UCP, after e-CISG making in order to adjust CISG to "on" transaction, it is very easy and prompt for business worked to use CISG with e-CISG. This will facilitate ratification of the CISG. For this case, I already presented contents of e-CISG. It is very important for the preliminary draft convention to deal specially with issues related to electronic contracting or to electronic transaction, because according to which way, its contents and scope of application will be different. But the revised draft convention is regretably compromising both them. Consequently, its contents are very confusing and we could not expect its success. If e-CISG will regulate, it is desirable that, if possible, working group has to make the general rule, and the making of useful, practical, affordable rule for electronic commerce, for example Uniform Customs and Practices for Electronic Commerce(e-UEC) in order to solve the specific practical problems, if any, which business currently faces regarding electronic contracting, has to entrust ICC. If working group want to make e-CISG, it is important not to hesitate and take a significant amount of time.