• 한국중재학회지:중재연구
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• 제27권3호
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• pp.53-76
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• 2017

Korean businesses, and their legal representatives, have observed the improvements of enforcement of commercial judgments through arbitration over traditional collections litigation in U.S. Courts-due to quicker proceedings, exceptional cost savings and more predictable outcomes-in attaching assets within U.S. jurisdictions. But how are the 2016 interim measures implemented by the Arbitration Act of Korea utilized to avoid jurisdictional and procedure pitfalls of enforcement proceedings in the Federal Courts of the United States? Authors examine the necessary prerequisites of the U.S. Federal Arbitration Act as adopted through the New York Convention, to which Korea and the U.S. are signatories, as distinguished from the Panama Convention. Five common U.S. arbitration institutions address U.S. "domestic" disputes, preempting U.S. state law arbitrations, while this article focuses on U.S. enforcement of "international" arbitration awards. Seeking U.S. recognition and enforcement of Korean arbitral awards necessitates avoiding common defenses involving due process, public policy or documentary formality challenges. Provisional and conservatory injunctive relief measures are explored. A variety of U.S. cases involving Korean litigants are examined to illustrate the legal challenges involving non?domestic arbitral awards, foreign arbitral awards and injunctive relief. Suggestions aimed toward further research are focused on typical Korean business needs such as motions to confirm foreign arbitration awards, enforce such awards or motions to compel arbitration.

• 무역상무연구
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• 제45권
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• pp.51-82
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• 2010

The "rules of private international law" or "conflict of law rules" work to determine the governing law, the law applicable to international contracts. These rules permit parties' autonomy to choose the law applicable to their contracts in cases of both litigations and arbitrations. In this regards, the present article examines parties' five options for the choice of the law governing their contracts, which the parties should consider when negotiating and drafting an international agreement. This means that parties in international contracting should check the contents of the law that they are to choose as the governing law before doing so. The first option is to submit the contract to its own law, which can be the safest and simplest solution generally. However this option is subject to the consent of the other party, and is not appropriate when the domestic law chosen contains mandatory rules strongly protecting the other party. Secondly, the option of choosing the other party's law is not preferable in general. Even though the other party is strong enough to succeed in insisting on applying its own law, the other party is advised to counter-offer a neutral solution by suggesting the application of a transnational set of rules and principles of international contract, such as Unidroit Principles. The third option to choose the law of a third country should be taken with the caution that it should be harmonized with either, in case of litigations, the international jurisdiction clause which makes the country chosen have the jurisdiction over the dispute arising under the contract, or, in case of arbitrations, the way of selection of the arbitrator who has good knowledge of the law chosen. The fourth option of submitting the contract to the lex mercatoria or the general principles of law including the Unidroit Principles can be a advisable solution when a dispute is designed to be submitted to experienced arbitrators. The final and fifth is to be silent on the choice of the governing law in contracting. This option can be usefully available by experienced negotiators who are well familiar with the conflict of laws rules and enables the parties to avoid the difficulties to agree on the governing law issue and leave it open until a dispute arises.

• 한국중재학회지:중재연구
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• 제12권2호
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• pp.303-336
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• 2003

Incorporation of an arbitration clause by reference to other documents occurs in many international business transactions. The reference is either to another document that contains arbitration clause or to trading rules which contain the arbitration clause, without the main contract mentioning that arbitration has been agreed upon. In fact, incorporation by reference in to a contract of an arbitration clause set forth in another agreement is deemed valid in any number of circumstances, even when the parties to the two contractual instruments are not the same. Difficulties arise when, instead of an express arbitration provision, a contract contains a clause which refers to the trading rules of a certain trade association, so-called external arbitration clause. The U.S. courts which will presume that the parties intended to arbitrate under a particular set of rules when they expressly mentioned arbitration in their agreement, have sometimes refused to enforce contract clauses that do no more than refer to particular trading rules, even if these rules contain provisions binding the parties to arbitrate their disputes. The courts in such cases tend to be careful in determinig whether intent to arbitrate is present. In maritime contracts, the arbitration clause in a charter party is often referred to in the bill of lading. Such reference usually is held binding upon the parties to the contract of carriage, their knowledge of such practice being presumed. A nonsignatory may compell arbitration against a party to an arbitration agreement when that party has entered into a separate contractual relationship with the nonsignatory which incorporates the existing arbitration clause. If a party's arbitration clause is expressly incorporated into a bill of lading, nonsignatories … who are linked to that bill … may be bound to the arbitration agreement of others. An arbitration clause in a charterparty will be incorporated into a bill of lading if either - (a) there are specific words of incorporation in the bill, and the arbitration clause is so worded as to make sense in the context of the bill, and the clause dose not conflict with the express terms of the bill; or (b) there are general words of incorporation in the bill, and the arbitration clause or some other provision in the charter makes it clear that the clause is to govern disputes under the bill as well as under the charter. In all other cases, the arbitration clause is not incorporated into the bill.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.101-124
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• 2007

The legal systems and open-door policies to foreign affairs in North Korea have been followed by those of China. Whereas an arbitration system of South Korea accepted most parts of UNCITRAL Model Law, North Korea has succeeded to an arbitration system of a socialist country. China, under the arbitration system of socialist country, enacted an arbitration act reflected from UNCITRAL Model Law for keeping face with international trends. We have used these three arbitration system as a tool for analyzing an arbitration system in North Korea. With an open-door policy, North Korea and China enacted an arbitration act to provide a legal security. Therefore, the core parts of arbitration system in North Korea and China are based on a socialist system while those of South Korea is on liberalism. So, North Korea and China enacted an arbitration act on the basis of institutional arbitration, on the other side, South Korea is based on ad-hoc arbitration. Because of these characters, in terms of party autonomy, it is recognized with the order as South Korea, China and North Korea. Also North Korea enacted separate 'Foreign Economic Arbitration Act' to resolve disputes arising out of foreign economies including commercial things and investments. There are differences in arbitration procedures and appointment of arbitrators : South Korea recognizes parties' autonomy, however parties should follow the arbitration rules of arbitration institutes in North Korea and China. According to an appointment of arbitrators, if parties fail to appoint co-arbitrators or chief arbitrators by a mutual agreement, the court has the right to appoint them. In case of following KCAB's rules, KCAB secretariats take a scoring system by providing a list of candidates. A party has to appoint arbitrators out of the lists provided by arbitration board(or committee) in North Korea. If a party may fail to appoint a chief arbitrator, President of International Trade Arbitration Board(or Committee) may appoint it. In China, if parties fail to appoint a co-arbitrator or a chief arbitrator by a mutual agreement, Secretary general will decide it. If a arbitral tribunal fails to give a final award by a majority decision, a chief arbitrator has the right for a final decision making. These arbitration systems in North Korea and China are one of concerns that our companies take into account in conducting arbitration procedures inside China. It is only possible for a party to enforce a final arbitral award when he applies an arbitration inside North Korea according to International Trade Arbitration Act because North Korea has not joined the New York Convention. It's doubtful that a party might be treated very fairly in arbitration procedures in North Korea because International Trade Promotion Commission controls(or exercises its rights against) International Trade Arbitration Commission(or Board).

• 항공우주정책ㆍ법학회지
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• 제27권1호
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• pp.75-101
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• 2012

As the Reublic of Korea revised the Commercial Code including 40 articles of air transport enacted newly on May 23, 2011, so Korea became first legislative examples in the Commercial Code of the developed and developing countries. I would like to explain briefly the main contents of my paper such as (1) history of enacting newly Part VI (air transport) in the Korea's revised commercial law, (2) legal background enacting newly Part VI (air transport) in the Korea's revised commercial law and the problems on the conditions of air transport, (3) every countries' legislative examples on the civil liability of aircraft's operator, (4) unlawful Interference Convention and general risk convention of 2009, (5) main contents and prospects of the revised Commercial Code for the liability of aircraft's operator etc as the followings. Meanwhile as the Aviation Act, Commercial Code and Civil Code in Korea and Japan did not regulated at all the legal basis of solution on the disputes between victims and offender for the amount of compensation for damage due to personal or property damage caused by aircraft accidents in Korea and Japan, so it has been raised many legal problems such as protection of victims, standard of decision in trial in the event of aircraft accident's lawsuit case. But the Korean Revised Commercial Code including Part VI, air transport regulations was passed by the majority resolution of the Korean National Assembly on April 29, 2011 and then the South Korean government proclaimed it on May 23 same year. The Revised Commercial Code enforced into tothe territory of the South Korea from November 24, 2011 after six month of the proclaimed date by the Korean Government. Thus, though Korean Commercial Code regulated concretely and respectively the legal relations on the liability of compensation for damage in the contract of transport by land in it's Part II (commercial activities) and in the contract of transport by sea in its Part V (marine commerce), but the Amended Commercial Act regulated newly 40 articles in it's Part VI (air transport) relating to the air carrier's contract liability on the compensation for damage caused by aircraft accidents in the air passengers and goods transport and aircraft operator's tort liability on compensation for damage caused by the sudden falling or collision of aircraft to third parties on the surface and so it was equipped with reasonable and unified system among the transport by land, marine and air. The ICAO adopted two new air law conventions setting out international compensation and liability rules for damage caused by aircraft to third parties at a diplomatic conference hosted by it from April 20 to May 2, 2009. The fight against the effects of terrorism and the improvement of the status of victims in the event of damage to third parties that may result either from acts of unlawful interference involving aircraft or caused by ordinary operation of aircraft, forms the cornerstone of the two conventions. One legal instrument adopted by the Conference is "the Convention on Compensation for Damage to Third Parties, Resulting from Acts of Unlawful Interference Involving Aircraft" (Unlawful Interference Convention). The other instrument, "the Convention on Compensation for Damage Caused by Aircraft to Third Parties" (General Risk Convention), modernizes the current legal framework provided for under the 1952 Rome Convention and related Protocol of 1978. It is desirable for us to ratify quickly the abovementioned two conventions such as Unlawful Interference Convention and General Risk Convention in order to settle reasonably and justly as well as the protection of the South Korean peoples.

• 한국중재학회지:중재연구
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• 제12권2호
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• pp.263-302
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• 2003

Since new Korean arbitration law was modeledafter UNCITRAL Model Law on International Commercial Arbitration Law, the judicial review on the arbitral award is at most limited to fundamental procedural justice. Thus, drafting valid arbitration clause is paramount important to enforce arbitral awards in the new legal environment. A losing party in arbitral process would often claim of the invalidity of arbitration agreement to challenge the arbitral award. Especially, the validity of arbitration clause in the construction contracts is often challenged in Korean courts. This is because the construction contracts usually include selective arbitration agreement in multi-tiered dispute resolution clause that is drafted ambiguous or uncertain. In this paper selective arbitration agreement means a clause in a contract that provides that party may choose arbitration or litigation to resolve disputes arising out of the concerned contract. On the hand multi-tiered dispute resolution clause means a clause in a contract that provides for distinct stages such as negotiation, mediation or arbitration. However, Korean courts are not in the same position on the validity of selective arbitration agreementin multi-tiered dispute resolution clause. Some courts in first instance recognized its validity on the ground that parties still intend to arbitrate in the contract despite the poor drafted arbitration clause. Other courts reject its validity on the ground that parties did not intend to resort to arbitration only with giving up their right to sue at courts to resolve their disputes by choosing selective arbitration agreement. Several cases are recently on pending at the Supreme Courts, which decision is expected to yield the court's position in uniform way. Having reviewed recent Korean courts' decisions on validity and applicability of arbitration agreement, this article suggests that courts are generally in favor of arbitration system It is also found that some courts' decisions narrowly interpreted the concerned stipulations in arbitration law despite they are in favorable position to the arbitration itself. However, most courts in major countries broadly interpret arbitration clause in favor of validity of selective arbitration agreement even if the arbitration clause is poorly drafted but parties are presume to intend to arbitrate. In conclusion it is desirable that selective arbitration agreement should be interpreted favorable to the validity of arbitration agreement. It is time for Korean courts to resolve this issue in the spirit of UNCITRAL model arbitration law which the new Korean arbitration law is based on.

• 한국중재학회지:중재연구
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• 제29권4호
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• pp.33-55
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• 2019

This study is aimed at drawing up improvement measures in connection with the resolution of claims, one of the major constraints in revitalizing South-North Korean economic cooperation. To that end, we first looked at the structure of South-North Korean economic cooperation and the institutional status related to resolving the claims. Also we analyzed the current status of the claims in the process of promoting South-North Korean economic cooperation by companies and the provisions of the claims between the parties in order to derive any problems. Through these research results, we were able to identify directions and implications for efficient improvement of the causes of several South-North Korean economic cooperation claims. First, at the corporate level, there is a need to create specific details of a contract for resolving disputes and to add additional third-party coordination functions in the relevant clause of the contract in preparation for the occurrence of a dispute. In addition, it is necessary to seek ways to advance jointly with corporations in China and other third countries in order to secure stability. Second, the government should continue to discuss ways of promoting South-North Korean commercial arbitration with North Korea so that follow-up measures can be completed as soon as possible. In addition, a two-track strategy is suggested to provide a practical negotiation channel at the private level. Also it is necessary to be active in persuading North Korea to join the international arbitration treaty in preparation for the activation of full-fledged economic exchanges.

• 통상정보연구
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• 제15권2호
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• pp.285-313
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• 2013

우리나라의 정기용선 관련법은 2007년에 상법의 기존 규정에 대해 근본적으로 바꾸지 않고 유지하는 방향으로 개정함으로써 본 계약에서 중요한 제3자에 관한 권리 의무의 문제는 제외하였다. 따라서 현재, 정기용선과 관련하여 제3자에 대한 책임 문제를 해결하는데 상법을 통한 해결 방법의 도출보다는 법적 실무적인 사례들의 검토를 통해 논의하는 것이 적절하다 판단되고 있다. 정기용선계약은 당사자인 선주와 용선자 간에 이뤄지는 사적계약이며 계약의 특수성에 의해 제3자의 운송물에 손해가 발생하였을 때에 책임 주체를 명확히 하는 것이 어렵다. 이에, 선의의 제3자에 대한 운송물의 재산적 권리 보호를 위해 정기용선계약 하에서 선주와 용선자 중 누가 운송인인지를 구분 확정하는 것에 대한 법적 실무적인 기준의 정립이 필요하다. 현재, 정기용선 계약에서 당사자 간의 유책자 판단에 대해 법적 성질을 이용한 확정 방법은 그 명확성에 대해 논쟁 중인 실정이다. 이에 본 연구에서는 정기용선계약의 특성에 입각하여 제3자의 화물 손해에 대한 책임 주체의 자격확정을 어떻게 할 것인가에 목적을 두고, 이에 따라 제3자 손해의 책임 주체를 찾아내기 위해 정기용선계약에서 논란이 되어 온 법적 성질을 검토 고찰하고 운송인의 자격을 확정할 수 있는 이외의 방법이 있는지, 또 운송 계약 하에서 책임 주체로서 운송인 확정을 위한 방법이 무엇이 있는지 검토 한다. 본 연구는 제3자 손해에 대한 구제 방안으로 당사자 간의 운송인 확정의 방법, 용선계약 내에 Inter-Club Agreement의 포함을 통한 제3자의 손해에 대한 책임 분담의 방법, 제3자의 구제 방안에 대한 규정의 상법에의 도입 또는 개정을 통한 방법을 검토하며 이러한 방법들이 정기용선계약 하에서 발생한 제3자의 손해 처리에 용이한 도움이 될 것이라 제시해 본다.

• 통상정보연구
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• 제15권4호
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• pp.457-479
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• 2013

중국의 경제적 부상(rise)으로 부민강국이라는 중국의 꿈이 구체화하고 있다. 중국경제의 고도성장은 전 세계에 커다란 충격을 줄 것이다. 세계의 공장과 세계의 시장으로 영향력을 확대하고 있다. 그러나 중국의 지속적 경제성장 실현에는 여러 제약요인이 존재한다. 급격한 성장의 부작용으로 중국사회는 관료의 부패, 부의 양극화등 많은 사회적 난제를 가지고 있다. 국제적으로는 중국 위협론과 주변국과의 영토분쟁이 있다. 최근 중화민족주의의 출현에 대한 주변국의 견제도 심각한 제약요인이 되고 있다. 중국 내부적으로는 관료사회의 부패만연, 공산당 통치능력 약화, 차별적 경제발전전략에 따른 부의 양극화, 농촌문제의 심각성, 사회적 불안정, 사회보장 체제 미비, 동부 연해지역과 서부 내륙지역의 발전격차, 소수민족 문제, 환경오염과 에너지자원 부족으로 인한 지속가능한 성장의 제약등 여러문제로 구소련같이 국가가 해체될 가능성도 상존한다. 사회 양극화의 심화는 사회주의 혁명당시 지지기반인 농민과 노동자들을 공산당에 실망하게 하여 공산당 일당집권의 명분을 위협할 가능성이 있다. 에너지 자원 부족, 환경오염등 문제는 한국기업과 경제에 위기를 가져다줄 것이다. 특히 한국경제에 미칠 중요한 영향은 경제 성장방식의 전환이다. 투자와 소비의 균형, GDP중심성장에서 탈피하여 소비, 환경중심으로 전환된다. 금융, 환경, 문화, 교육, 의료, 사회복지관련 산업등 서비스 산업이 성장할 것이다. 중국의 성장모델 변화는 한국의 중간재 산업에 큰 시련을 안겨 줄 것 이다. 중국은 성장을 소비중심으로 맞추면서 구조조정을 시작했다. 기계, 자동차, 반도체, 철강, 화학 중심인 대중국 수출산업 비중을 줄이고 서비스산업 비중을 늘려야 한다.