• Journal of Arbitration Studies
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• 제31권1호
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• pp.107-127
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• 2021

Vietnam is an important country with many trade transactions with the Republic of Korea. Arbitration is a method of resolving disputes that can arise with the increase in trade transactions. It is essential to study the legal system and precedents of Vietnam on the approval and enforcement of foreign arbitral awards. Such is the case because the law in Vietnam and the court's position on the approval and enforcement of foreign arbitration awards issued by the courts depend on the possibility of realizing the parties' rights concerning their disputes. Therefore, it is of great value both theoretically and practically to analyze the exact differences between approval and the denial of approval. Vietnam has enacted the Commercial Arbitration Act, which replaces the previous Commercial Arbitration Decree and creates an arbitration-friendly environment that meets international arbitration standards. Regarding the approval and execution of foreign arbitration awards, the Commercial Arbitration Act, the Civil Procedure Act, the Civil Execution Act, and the Vietnam Foreign Arbitration Awards Approval and Enforcement Ordinance are regulated. Following these laws and regulations, the reasons for the approval, enforcement, and rejection of the arbitral award are specified. In accordance with these laws and inappropriate arbitration agreements, an arbitral award beyond the scope of its right of disposition, an arbitral tribunal, or the concerned parties could not be involved in a proceeding or an arbitral award if the involved party does not have an opportunity to exercise its rights lawfully. If the state agency in the forum does not recognize the arbitral award, the dispute is not subject to arbitration under Vietnamese law, or the arbitral award does not conform to the basic principles of Vietnamese law, the parties are not bound, and the foreign arbitration award is rejected for approval and execution.

• Journal of Arbitration Studies
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• 제23권3호
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• pp.185-212
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• 2013

In this paper, a conceptual model of legal culture based on Ehrlich's "living law" theory and Cole's social-cultural explanation can explain the low utilization rates of arbitration of Japan and the high utilization rates of arbitration in the United States, simultaneously. This model highlights the clash between social norms and legal provisions in Japan. Japan has developed a two-tiered system of dispute resolution. At the official level, Japanese people accept the legal system imposed by the outside world. But, at a deeper level, they utilize diverse forms of informal dispute resolution mechanisms, such as reconcilement and conciliation, reflecting their own social norms. In contrast, there is no conflict between social norms and legal provisions in United States. This study may show that there are distinctions between American-style arbitration and Japanese-style arbitration, reflecting their own respective social norms. The question of reconciliation between the American style of arbitration and the Japanese style of arbitration can be resolved by an international arbitrator.

• Journal of Arbitration Studies
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• 제27권3호
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• pp.3-31
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• 2017

Legal tech is commonly considered as the use of software and technology in the process of providing legal services. It is disrupting the method in which legal services are traditionally rendered, and under the buzz word "e-arbitration" also extends to the area of international commercial arbitration. This article aims to give an introduction into the most pertinent issues in "e-arbitration", starting with an attempt at defining the term "e-arbitration" and with an overview of some of the service providers. It goes on to address the use of information technology in international arbitration and concludes with an analysis of key legal issues arising when various aspects of the arbitral process are commenced, conducted or concluded in digital form.

• Journal of Arbitration Studies
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• 제11권1호
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• pp.121-143
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• 2001

Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of defined legal relationship, whether contractual or not. Arbitration has become increasingly popular in settling international and domestic commercial disputes nowadays. The importance of arbitration agreement cannot be overemphasized. It is the most reasonable way to settle commercial disputes. There are two types in arbitration agreement. one is arbitration clause, the other is submission agreement. The arbitration agreement must be made in writing, in addition, other communication instruments shall be considered as effective arbitration agreement if they are properly documented. Over the past few decades, a considerable number of studies have been conducted on the legal property of arbitration agreement in Germany and Japan. Its legal property is aspect of substantial law contract. The basis of arbitration agreement is the principle of party autonomy. The important effect of arbitration agreement is to preclude jurisdiction from national court. The respondent shall raise a plea not later than when submitting his first defense on the merits of the action. As positive effect of arbitration agreement, the court must support the conduct of arbitral proceedings and arbitrator can be appointed upon request of a party.

• Journal of the Korea Society of Computer and Information
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• 제22권1호
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• pp.99-106
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• 2017

In this paper, the first to identify in detail the direct and indirect causes of trade claims and to provide a way to prevent the causes and measures specific claims. Trade claims is not the best way to prevent in advance, measures to prevent future trade claims is as follows. First, it should be the credit investigation of the counterparts. Second, the contract must determine the rights and obligations of each other through sufficient consultation with contract and faithfully perform its contractual obligations. Third, the explicit trade arbitration clause of arbitration in the contract, and shall be a sufficient review of the procedure such as import and export, international business practices, norms and partners of economic policy, foreign exchange regulations, the trade system transactions. Finally, for it is to be treated as a one-stop strengthening the organization and function, and the Ministry of Commerce and Trade Association, and KOTRA and Trade Insurance Corporation strategic support systems, such as done by covering the work on trade claims prevention and resolution in the Korean Commercial Arbitration Board.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• 제21권
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• pp.129-151
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• 2003

Nowadays even if environment of international commercial transaction is changing quickly municipal law could not meet with such change accordingly. So far, however, efforts towards unification have prevailingly taken the form of binding instruments, such as non-national or supranational legislation, international conventions or international model laws. Among them, the UNIDROIT Principles with parties' autonomous and yet non-binding character do not only meet the substantive requirements of a true law merchant. In addition they also counter some of the main points of criticism against the modern lex mercatoria. As such the Principles constitute a cornerstone in the lex mercatoria debate and may become the heart of the new lex mercatoria. The purpose of this article is to ask whether there could be applied the Principles in international commerce. For the purpose it is to investigate when the Principles are applied in international commerce and how effectively the Principles are applied for the decision in international commercial disputes. Even though the Principles are used for reference by parties involved for the voluntary regulation of their contract, it is sufficiently expected that the Principles are to be a stepstone of uniform contract law in international commerce. Until now cases of appling the Principles are not satisfied with its expectation as a source of non-legislative means of unification or harmonization of law. Given the party's autonomy in the contract, this is among other things because business parties are strongly tend to observe their national laws in their international commerce. And also, even though there are a number of neutral and uniform regulations for international commercial contracts, parties do not often recognize their usefulness with being up to expectation. In order to explore the applicability of the Principles a number of cases of ICC International Court of Arbitration and others are quoted.

• Journal of Arbitration Studies
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• 제16권1호
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• pp.45-80
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• 2006

The purpose of this paper is to make research on the method of arbitration agreement, the adoption and contents of the Convention on the Use of Electronic Communications in International Contracts, and the standpoint and problem with reference to the new Convention's application to the method of arbitration agreement in New York Convention. Last year the UN General Assembly and UNCITRAL adopted a new Convention on the Use of Electronic Communications in International Contracts that makes agreements by electronic communications enforceable, including arbitration agreements under the Convention on the Recognition and Enforcement of Foreign Arbitral A wards (New York Convention). Aimed at enhancing legal certainty and commercial predictability where electronic communications are used in relation to international contracts, the provisions of the Convention deal with, among other things, determining a party's location in an electronic environment; the time and place of dispatch and receipt of electronic communications; and the use of automated message systems for contract formation. Under the New York Convention, arbitration agreements in international contracts must be reduced to writing before they can be enforced. But under the new Convention, an arbitration agreement made entirely in electronic form would be enforceable. The working group expressed overall support in favor of the inclusion of a reference to the New York Convention in the new Convention. However, one proposal was that the exclusions provided under article 2 of the new Convention might be too broadly worded to adequately accommodate the New York Convention. In conclusion, Korea's government authorities should take prompt measures to sign and ratify the new Convention, and declare on the scope of its application. Also Korea's arbitration institute should make preparation for the amendment of the arbitration act and arbitration rules in accordance with the new Convention.

• Journal of Arbitration Studies
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• 제10권1호
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• pp.3-25
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• 2000

At its thirty-second session in 1999, the UNCITRAL had before it the requested note entitled "Possible future work in the area of international commercial arbitration." After concluding the discussion on its future work in the area of international commercial arbitration, it was agreed that the priority items for the working group should be conciliation, requirement of written form for the arbitration and enforceability of interim measures of protection. the Commission entrusted the work to the Working Group on Arbitration which held its thirty-second session at Vienna from 20 to 31 March 2000. The Working Group discussed agenda item 3 on the basis of the report of Secretary General entitled "Possible uniform rules on certain issues concerning settlement of commercial disputes : conciliation, interim measures of protection, written form for arbitration agreement." At its thirty-three session in 2000, the UNCITRAL had before it the report of Secretary General on agenda item 3 discussed by the Working Group. The Working Group discussed the issues relating to certain aspects of conciliation proceedings ; (1) Admissibility of certain evidence in subsequent judicial or arbitral proceedings ; (2) Role of conciliatior in arbitration or court proceedings ; (3) Enforceability of settlement agreements reached in conciliation proceedings ; (4) Other possible items for harmonized treatment : a) Admissibility or desirability of conciliation by arbitrators b) Effect of an agreement to conciliate on judicial or arbitral proceedings c) Effect of conciliation on the running of limitation period d) Communication between the conciliator and parties ; disclosure of information e) Role of conciliator. It was generally considered that decisions as to the form of the text to be prepared should be made at a later stage when the substance of prepared solutions would become clearer. However, it was noted that model legislative provisions seemed to be appropriate form for a number of matters proposed to be discussed in the area conciliation. There was general support in the Working Group for the proposition to perpare a legislative regime governing the enforcement of interim measures of protection ordered by arbitral tribunals. It was generally considered that legislative regime should apply to enforcement of interim measures issued in arbitration taking place in State where enforcement was sought as well as outside that State. It was generally observed that there was a need for provisions which conformed to current practice in international trade with regard to requirements of written form for arbitration agreement. The view was adopted by the Working Group that the objective of ensuring a uniform interpretation of the form requirement that responded to the needs of international trade could be achieved by : preparing a model legislative provision clarifying, for avoidance of doubt, the scope of article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration : and adopting a declaration, resolution or statement addressing the interpretation of the New York Convention that would reflect a broad understanding of the form requirement. There was general agreement in the Working Group that, in order to promote the use of electronic commerce for international trade and leave the parties free to agree to the use of arbitration in the electronic commerce sphere, article II(2) of the New York Convention should be interpreted to cover the use of electronic means of communication as defined un article 2 of the Model Law on Electronic Commerce and that it required no amendment to do that. The UNCITRAL may wish to consider to the desirability of preparing uniform provisions on any of those issues concerning conciliation and arbitration proceedings, possibly indicating whether future work should be towards a legislative text or non-legislative text.

• Journal of Arbitration Studies
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• 제33권4호
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• pp.3-35
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• 2023

The Korean government has enacted the Arbitration Industry Promotion Act, which aims to foster the arbitration system as an industry, strengthen national competitiveness, and systematically provide government support so that the arbitration industry can become a future growth engine, and has been in effect since June 28, 2017. In accordance with Article 3 of the Arbitration Industry Promotion Act, the Minister of Justice must establish and implement the Basic Plan for the Promotion of the arbitration industry every five years to promote the arbitration industry. Accordingly, the Ministry of Justice established the "Basic Plan for the Promotion of the Arbitration Industry" (2019-2023) at the end of 2018, which has been in effect since January 1, 2019. This study first reviews and evaluates the domestic arbitration sector performance of the first basic plan, then reviews and evaluates the international arbitration sector performance of the first basic plan, and finally suggests what tasks to focus on when establishing the second basic plan for Promotion of Arbitration Industry.

• Journal of Arbitration Studies
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• 제23권4호
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• pp.139-167
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• 2013

Mediation, which is part of ADR, is a method used to settle disputes amicably by employing a third party who is in a neutral position. Utilization and attention on meditation are increasing in place of litigation and arbitration owing to its effectiveness in terms of time, cost, and effectiveness in achieving an amicable settlement. As to Korea, mediation at the civil level was employed by the KCAB in July 2012 but its utilization was in ABC stage compared to mediation at the governmental and judicial levels. Based on this situation, this study reviewed the guideline and system of the KCAB through a comparison of the management system between the KCAB and AAA where mediation was in good use. This study further suggests solutions as to the development of an international commercial mediation system First, the KCAB rule is needed to create a mediation language, mediation place, mediator internationalization, and so on. Second, a system backup is necessary to ensure the enforceability and effectiveness of mediation. Third, a unified mediation law in Korea is desirable for the harmonization of mediations at civil, governmental, and judicial levels. The unified mediation law, if it is made, may lead to an international base where this requirement exists. Fourth, advertising the merits of mediation to the public is necessary. Fifth, securing specialized mediators and relevant training are essential. If the above requirements are implemented, Korea would advance in international commercial disputes.