• 한국중재학회지:중재연구
• /
• 제21권3호
• /
• pp.3-20
• /
• 2011

An arbitrator is an impartial person chosen to decide the issue between parties engaged in a dispute. But the arbitrator appointed by a party or arbitration institution shall be impartial or independent and should disclose to the administrator any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. If, at any stage during the arbitration, new circumstances arise that may give rise to such doubts, the arbitrator shall promptly disclose such circumstances to the parties and to the administrator. Upon receipt of such information from an arbitrator or a party, an party must challenge any arbitrator whenever circumstances exist that give rise to justifiable doubts as to arbitrator's impartiality or independence. Under these circumstance, there were two cases declared by the Korean Supreme Court in relation to the cancellation of the arbitration award. One arbitral case was cancelled for the reason of the having been arbitral procedure without disclosure arbitrator's impartiality, and the other case was refused to cancel the ward for the reason of the having been arbitral procedure without challenge an arbitrator. There are not, however, the standard to decide what is definitely the arbitrator's impartiality or independence and the difference on qualification between arbitrator chosen by an party and neutral arbitrator in korean arbitration law and rules. Nevertheless, korean court require arbitrator to be impartial and independent and the arbitration parties to challenge arbitrator' impartiality or independence.

• 한국중재학회지:중재연구
• /
• 제18권1호
• /
• pp.31-47
• /
• 2008

An arbitrator's duty shall be independence and impartiality such as a judge who has procedurally absolute position. Independence is the freedom from others, impartiality is the status of having no-partial condition. Although these show relevance between independence and impartiality, in actuality, it is not easy to prove them. Therefore, arbitrator has to prove his or her position by opening the public of reality and by having an obligation of notification. Each country which applies Arbitration rules or Arbitration act stays the same as Korean Commercial Arbitration Board does. Hence, each country has the moral principles in order to establish a standard of judgement for essential factors and requests preferentially the impartiality and the publicity. In reality, court of justice in England excludes arbitrator who has the close relation to a person concerned. Justice in France cancelled an authorization of arbitrator because of having the economic interest to the person concerned. And also, In United States, Federal Court reverses an arbitration judgment without giving any partiality to a person concerned because of not opening a public about the relationship between arbitrator and a person concerned. Therefore, decision basis of the independence and the impartiality is standardized by the economic interest of a person concerned, professional relation, society connection, relationship between arbitrator and arbitration representative in the same case while in process of arbitration, arbitrator's nationality If arbitrator does not keep the independence and the impartiality by a position of judge, he or she has to make responsible. this duty is divided by two things: civil case and crime case. and if arbitrator does break this responsibility, he or she will get the cancellation of judge and compensation of damage. However, Korea is placed in the real circumstance without judge precedent and moral principles including the independence and impartiality. In order to getting the good reputation of international arbitration institution, this country will have to enact principles of the independence and impartiality for arbitrator.

• 무역상무연구
• /
• 제78권
• /
• pp.31-51
• /
• 2018

As International arbitration has increased in popularity, there has been an expansion in the pool of arbitrators, and a commensurate diversification of not only the legal backgrounds but cultural backgrounds among themand among parties. As a result, there has been increased attention on the standards used to evaluate arbitrators' conduct and ethics, especially among them, 'Impartiality and Independence of Arbitrator' which is a precondition for an acceptable awards. There is no international treaty or code governing these issues. But the International Bar Association(IBA) seems to be leading the way such as establishing practical guidelines regarding to impartiality and independence of arbitrator. This article will review some theories, cases about impartiality and independence of arbitrator, and practical standards through the IBA guidelines. It is intended to provide specific guidance and criteria to the arbitrators, parties and counsels. And also it is expected to prevent unnecessary delays in arbitration proceedings in advance and filing for the annulment of arbitral awards because of lack of impartiality and independence of arbitrator as well.

• 무역상무연구
• /
• 제36권
• /
• pp.111-140
• /
• 2007

This paper intends to review the qualifications of arbitrator, the disclosure of disqualifications by arbitrator, the challenge grounds of arbitrator, and the challenge procedure of arbitrator under the arbitration laws and rules. There are no provisions for the qualification of arbitrator in the UNCITRAL Model Law on International Commercial Arbitration. Under the UNCITRAL Model Law on person shall be precluded by reason of his nationality from acting as an arbitrators. Under the UNCITRAL Model Law when a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties. Under the UNCITRAL Model Law an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. Under the UNCITRAL Model Law the parties are free to agree on a procedure for challenge an arbitrator. Failing such agreement, a party who intends to challenge an arbitrator shall send a written statement of the reasons for the challenge to the arbitral tribunal within 15 days after becoming aware of the constitution of the arbitral tribunal or any circumstance that give rise to justifiable doubts as to his impartiality or independence. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. In conclusion, an arbitrator has a responsibility not only to the parties but also to the process of arbitration, and must observe high standards of conduct so that the integrity and must observe high standards of conduct so that the integrity and fairness of the process will be preserved.

• 한국중재학회지:중재연구
• /
• 제17권1호
• /
• pp.33-55
• /
• 2007

Parties to national or international disputes use arbitration because they think it is faster than litigation or affords privacy. But it is very important for the parties that the decision of arbitrators is made impartially and independently. For the parties to accept the outcome of an arbitration, it is essential that the final outcome be the result of an impartial process, especially because arbitration is a form of adjudication, albeit a private one. The success of arbitration resides in the conduct of arbitrators. The more independent and impartial arbitrators are, the more trustworthy arbitration will be. Just as court procedures allow for the recusal of judges under certain circumstances, the arbitral process provides means to remove arbitrators from a tribunal if arbitrator can no longer be considered impartial or independent. This is blown as the disqualification or challenge of arbitrators. An arbitrator can also be challenged when he or she does not fulfill the contactually agreed and stipulated qualifications required by the arbitral agreement. An arbitrator's inability to act impartially could give rise to a challenge to the arbitrator, and even to the award. However, deciding whether an interest or relationship could give rise to an apprehension of bias is a difficult issue for every arbitrator. The standard of arbitrator's impartiality and independence is not commensurable to that of judge, because the parties are permitted considerable autonomy in selecting arbitrators. Particularly it may be expected for the party-appointed arbitrator to act as the advocate of the party in the deliberations of the tribunal. Doubts that could give rise to a challenge to the arbitrator should be justifiable. That is the case if a reasonable, informed third party would conclude that the arbitrator's decision making might be influenced by factors other than evidence presented by the parties. Consequently, for example, the mere fact that an arbitrator was to work in the same firm as one of the parties' counsel, this could not automatically be considered as grounds for challenge for lack of impartiality.

• 한국중재학회지:중재연구
• /
• 제21권1호
• /
• pp.33-56
• /
• 2011

Korea Supreme Court has cancelled four cases of thirty-nine Arbitral awards made by Korean Commercial Arbitration Board since Korea arbitration act was enacted in 1966. Three cases of them were cancelled by the reason of the arbitrator's disqualification in relation to impartiality or independence and the other to arbitration agreement enable to select the lawsuit or arbitration. When a person is approached in connection with his possible appointment as an arbitrator or has already been appointed as such, he shall without delay disclose all circumstances likely to give rise to justifiable doubts as to his impartiality or independence according to the one of the article 13 of Korean Arbitration Act. Upon being notified of the appointment as an arbitrator, each arbitrator shall immediately disclose in writing to the Secretariat any circumstances which might cause reasonable doubt about impartiality or independence. An arbitration agreement shall be made clearly and in writing not to appeal to the court or to be brought in the court. However most of the korean construction contracts have the arbitration agreement clause enable to appeal to the court or the arbitration on government official's advice. Many of these disputes are resolved by litigation after the precedent(Law case number : 2003da318) set by the Supreme Court on August 22, 2003 between the Korea(government) and the Korea Railroad or abandoned its attempt to arbitration. But each year, about four hundreds of arbitration business transactions were resolved arbitration, the voluntary submission of a dispute to an impartial person or persons for final and binding determination. Arbitration has proven to be an effective way to resolve these disputes privately, promptly, and economically.

• 한국중재학회지:중재연구
• /
• 제28권2호
• /
• pp.217-248
• /
• 2018

This paper reviews the Supreme Court of Japan in Decision of December 12, 2017, 2016 (Kyo) 43 (2011) concerning arbitrator's duty of disclosure and reasonable investigation under the Japan Arbitration Act (Arbitration Act). The Supreme Court of Japan recently issued a precedential decision interpreting, for the first time, the arbitrator disclosure requirements of the Arbitration Act. Under Article 18(4) of the Arbitration Act, arbitrators have an ongoing obligation to disclose circumstances which may give rise to justifiable doubts as to their impartiality or independence. The Supreme Court held that Article 18(4) of the Arbitration Act - requiring arbitrators to disclose all "facts likely to give rise to doubts as to his/her impartiality or independence" - (1) is not satisfied by blanket disclosures or advance waivers of potential future conflicts, and (2) requires disclosure of facts both known to an arbitrator or "that can be normally ascertained by an investigation that is reasonably possible${\cdots}$" This new standard presents opportunities and challenges for enforcing arbitration awards in Japan, and suggests measures that both arbitrators and parties can use to protect their awards. Also, the Supreme Court's new standards for evaluating arbitrator conflict disclosures suggest some measures that both arbitrators and parties to arbitration in Japan can take to protect the enforceability of their awards. The key factual question posed by the Supreme Court's ruling was whether an arbitrator's conflicts check was reasonable. Maintaining records regarding a review of potential conflicts or any investigation provides a ready source of proof in case of a future challenge. The Supreme Court has spoken clearly that so-called advance waivers of potential conflicts are not effective under Japanese law. Instead, to the extent that potential conflicts arise during the course of arbitration, they should be specifically disclosed.

• 통상정보연구
• /
• 제8권3호
• /
• pp.207-227
• /
• 2006

An Arbitration agreement is one kind of contracts between two or more contracting parties; any possible disputes that arise concerning a contract will be settled by arbitration. The parties are free to agree on the number of arbitrators. The role of the arbitrator is so significant in the arbitration system that its success or failure may depend on the credibility of the arbitrator. The purpose of this paper is to examine the specific elements of the Arbitration Clause through arbitration laws, arbitration rules and the related cases, to introduce the standard clause which are recommended by the international institution and the individual countries, and to make the parties of international commercial contracts reflect them in their contracts. Thus this author would like to recommend the famous and well known the Standard Clause which were drafted by international institution such as ICC and UNCITRAL or individual countries.(LCIA, AAA, CIETAC, KCAB)

• 한국중재학회지:중재연구
• /
• 제29권2호
• /
• pp.133-159
• /
• 2019

This paper reviews 2019 new arbitration rules of Japan Commercial Arbitration Association (JCAA). JCAA has amended its Commercial Arbitration Rules, and its Administrative Rules for UNCITRAL Arbitration. Also, it has introduced a new Interactive Arbitrations Rules. These new rules take effect from 1 January 2019. First, principal amendments of JCAA Commercial Arbitration Rules are such as arbitrator impartiality, tribunal secretaries, no dissenting opinions, expedited proceedings, arbitrator fees, administrative fees. Second, JCAA's new Interactive Arbitration Rules compel communication from the arbitral tribunal to the Parties and introduce a system of fixed compensation for arbitrators. Third, JCAA's Administrative Rules for UNCITRAL Arbitration are designed to provide the minimum essentials to allow the UNCITRAL Rules to be overseen by an institution. The only significant updates focus on arbitrator remuneration. This paper presents the intent and some implications of JACC's 2019 new rules for Korean Commercial Arbitration Board (KCAB) arbitration rules. Also, it seeks to provide a meaningful discussion and improvement on the facilitating of arbitration system in Korea.

• 한국중재학회지:중재연구
• /
• 제28권3호
• /
• pp.3-20
• /
• 2018

Independence and impartiality are the operating core of an arbitration disciplinary mechanism. Due to many factors, illegalities and improper acts in arbitration cases are facts of life in our country, and have greatly damaged the credibility of arbitration. It is necessary for us to perfect the operating mechanism of arbitration discipline from the four pluralistic progressive aspects of disciplining the cause externalization, disciplining the subject duality, the quasi-judicature of disciplinary procedures and the disciplining measures so that the populace can experience fairness and justice in every case. We should perfect the supporting measures such as the strict selection conditions and procedures of arbitrators, improving the quality of the arbitrator team, exploring the management mechanisms and strengthening the evaluation dynamic. An examination is a general investigation and evaluation so as to provide encouragement for being continually engaged as arbitrators, but it does not provide an objective basis of arbitration discipline. It is urgent to perfect the arbitration guarantee system on the basis of meeting the material needs of the arbitrators so as to enhance the sense of professional rank and honour of arbitration.