• 한국중재학회지:중재연구
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• 제30권1호
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• pp.199-215
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• 2020

Compared to Korea's recently expanding art distribution market, the difficulty of securing the authenticity of art is hindering the healthy development and growth of the market. In this regard, the current situation of the emotional system in the UK and France's art distribution process are examined as excellent cases in foreign countries. In the UK, there is a full autonomous appraisal system by art experts without state intervention. In France, the judiciary and the administration of art have an appraisal system for art works, so the appraisal work has reliability and objectivity. Through the above system, this study suggests measures to strengthen transparency in art trade and to break unfair practices in order to secure the authenticity of the domestic art distribution market. In addition, this study proposes the establishment of a professional appraisal system and the improvement of administrative law regulations to explore the possibility of ensuring fairness through mediation through the example of an international arbitration body.

• 한국중재학회지:중재연구
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• 제25권3호
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• pp.185-226
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• 2015

As in some developing countries and more recently some developed countries worldwide and in the Asian region, Australia has faced significant internal opposition and public debate especially over treaty-based investor-state dispute settlement (ISDS). As outlined in Part II(1), concerns have re-emerged and escalated since the first-ever claim was brought against Australia regarding its tobacco plain packaging legislation, in 2011 by Philip Morris Asia under an old BIT with Hong Kong. However, Australia signed bilateral FTAs with Korea in 2014 and with China in 2015, including ISDS protections, prompting several sets of parliamentary inquiries (Part II(2)). Australia's close trading partner, New Zealand, had already concluded an FTA with China in 2008 that included more expansive ISDS-backed investor protections. In 2015, the New Zealand Parliament has been debating ratification of its own FTA with Korea, with ISDS also now attracting growing scrutiny, as elaborated in Part III below. In both bilateral FTA negotiations, the present Korean government seems to have reverted to a strong preference for concluding investment agreements with extensive ISDS protections, despite public and parliamentary debate around 2011 in the context of ratifying its FTA with the United States. As mentioned briefly in the concluding Part IV, Korea's stance has significant implications for the future trajectory of treaty-based ISDS - and indeed international arbitration more generally - in the Asia-Pacific region, and perhaps even globally.

• 한국중재학회지:중재연구
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• 제19권2호
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• pp.179-195
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• 2009

필리핀의 중재제도를 규정하고 있는 법령은 다음과 같다. 즉 필리핀 민법(법률 제386호), 중재법(법률 제876호), 대체분쟁해결법(법률 제9285호), 국제상거래중재에 관한 국제 연합 국제상거래법위원회(UNCITRAL) 표준법 및 건설산업중재에 관한 대통령령(제1008호)이다. 2004년의 대체적 분쟁해결 제도(ADR) 에 관련된 필리핀 의회의 입법은 필리핀의 중재 실무와 절차에 광범위한 변화를 가져 왔다. 또한 국제중재실무에서 필리핀에 많은 도움을 주었다. 다른 한편으로는 상당한 변화를 가진 UNCITRAL 표준법의 채택과 국내 중재를 관장하는 법률속에 표준법 조항을 편입함으로써 필리핀은 분쟁해결의 대체안으로써 정책 결정의 실행에 대한 중재법의 인식과 ADR법에 있어서의 정책조문의 검토로 보다 실질적인 중재제도가 정착되는 기반을 조성하게 되었다. 국내에서 수행하고 있는 국제적인 중재는 아직까지는 비교적 적다고 생각된다. 그러나 ADR법 내에 규정된 강력한 ADR찬성정책과 ADR에 관대하고 특히 중재에 호의적인 대법원의 친중재적 판결로 인해 향후 수년내에 필리핀과 주변국과의 무역이 크게 증대될 것으로 전망된다.

• 한국중재학회지:중재연구
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• 제19권3호
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• pp.67-91
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• 2009

Nowadays, Alternative Dispute Resolution in terms of reconciliation, arbitration, and mediation is in the spotlight as a try to overcome the limits of a lawsuit as well as the judicial reform. Since many articles have studied ADR in America, Germany, Japan and the like which developed the system in advance, this article compares ADR in major Asian countries including China, Indonesia, Singapore, Thailand, Malaysia, India, and Vietnam etc. introducing ADR organizations as well. On the matter of vigorous trade and investment between Asian countries currently, it seems inevitable not to have consequential disputes through international exchange. Thus it will be very useful to know the law to resolve the conflict between the countries involved. This article is written to help to resolve the disputes in Asian countries and provide research materials to develop ADR in Korea by comparing the ones in major Asian countries. In addition, the comparative study of ADR in Asian countries should be continued to find the model which best fits in Asia as well as to nurture talent.

• 한국중재학회지:중재연구
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• 제28권2호
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• pp.91-110
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• 2018

Consumers repeatedly make small sum purchases through business-to-consumer contracts, usually without incident. Consumer areas have been increasing; therefore, consumer disputes have been occurring frequently as well. In international consumer transactions, it is not easy to solve consumer disputes by applying the laws of different countries. Resolving disputes by using the consumer arbitration system can be a measure to protect consumers. In the U.S., a class arbitration is being operated as a mixed dispute resolution system of class action and arbitration. Consumer Arbitration has long been a controversial issue in the U.S. It is therefore a lesson for us to examine related cases. A recent U.S. Supreme Court decision, DIRECTV v. Imburgia, was looked into and after a summary of the facts, issues, and opinions and opposing opinions that had a tight controversy, a close analysis was done. The analysis through this judgment is as follows: first, the contraction of consumer protection; second, the expansion of the Federal Arbitration Act scope; third, the class arbitration's restriction; and fourth, the submission of the arbitration fairness act.

• 한국중재학회지:중재연구
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• 제25권2호
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• pp.97-118
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• 2015

As China has quickly emerged as a global economic power, the total number of international commercial disputes arbitrated by Chinese arbitral institutions has increased dramatically. Along with this, the annulment procedure of arbitral awards in China have been newly brought to the fore. In accordance with the historical background and the demand of the times, the Chinese annulment procedure of arbitral awards reveals distinctive Chinese features. Although it was enacted in the face ofof an unwarranted prejudice against the dispute settlement system by arbitration as well as a deep mistrust of domestic arbitral institutions, the annulment procedure of arbitral awards showed a certain degree of justification and rationality in its initial stages of legislation. However, it is also the case that it has not adapted well to new domestic or foreign arbitration circumstances in the last twenty years. At present, there is a keen interest in revisions to and debates on arbitration law of China. It is necessary to take an active part in the amendment discussion and process of arbitration law. Moreover, we need to reform the annulment procedure of arbitral awards in order to meet the global trend of arbitration law.

• 한국중재학회지:중재연구
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• 제30권4호
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• pp.51-70
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• 2020

The Mediation-Arbitration hybrid is becoming more popular since it makes an amicable relationship and thorough statement possible. The Mediation-Arbitration hybrid has been used to take advantage of both dispute resolution methods. In a Med-Arb process, negotiating a resolution to disputes is attempted with a mediator's help. If the mediation ends in an impasse or issues remain unresolved, parties can move on to arbitration. Med-Arb can also be cost-effective when disputants hire one person to serve as mediator and arbitrator (Med-Arb-Pure). However, it can disturb the fairness and neutrality of arbitrators, and awards can be annulled. Indeed, "Award by Consent" is different from the "Med-Arb-Pure" process. Arbitrators easily confuse them. Only the parties settle on the arbitral proceedings' course, and the arbitrator can help them (award by consent). The role and skill of a mediator are different from an arbitrator's. Disputants have the right to use a mediator who specializes in mediation. Moreover, mediation communication confidentiality is the essential value of mediation, and this should be protected. Therefore, in the process of "Med-Arb," separation between mediating and arbitrating is a better choice to specialize in each expertise. In this process, "Med-Arb" can be an affordable, expeditious, proper, and effective method of resolving international commercial disputes and continuing ADR prime time.

• Journal of Korea Trade
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• 제24권7호
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• pp.107-124
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• 2020

Purpose - We assess the trade remedies rules in a host of Korea's FTAs to explore the trade policies for the effective implementation of FTA trade remedies rules. Also we develop the strategies of the future FTA negotiations of trade remedies rules. Design/methodology - After we review the key features of FTA trade remedies rules, we examine whether the rules are WTO-consistent or not. Next, we touch upon the WTO-plus characteristics of some provisions. Our main methodology is to compare the trade remedies rules in the numerous Korea's FTAs. Another methodology is to link those rules to the relevant WTO agreements and WTO dispute cases with a view to drawing lessons for trade policies and FTA negotiations. Findings - We find that most of the trade remedies rules are WTO-consistent. Moreover, we find that notification and consultation requirment, mandatory lesser duty rule, explicit prohibition of zeroing method, and public interest clause are WTO-plus. We also find that there are limitiations in the application of some global safeguard exclusion rules because of their non-mandatory nature. Originality/value - While most of previous studies focus mainly on the unique aspects of specific FTAs, our study analyzes comprehensively the trade remedies rules in the various Korea's FTAs. Based on the comprehensive analysis, we figure out the areas to be clarified and improved for the effective implementation of FTAs and the strategies for the future FTA trade remedies negotiations. As a consequence, our paper is expected to contribute to the academic research on FTA policies as well as the national economy.

• 국제학술발표논문집
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• The 9th International Conference on Construction Engineering and Project Management
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• pp.67-73
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• 2022

Construction bid documents contain various errors or discrepancies giving rise to uncertainties. The errors/discrepancies/ambiguities in the bid document, if not identified and clarified before the bid, may cause dispute and conflict between the contracting parties. Given the fact that bid document is a major resource in estimating construction costs, inaccurate information in bid document can result in over/under estimating. Thus, any questions from bidders related to the errors in the bid document should be clarified by employers before bid submission. This study aims to examine the pre-bid queries, i.e., pre-bid request for information (RFI), from state DoTs of the United States to investigate error types most frequently encountered in bid documents. For the study, around 200 pre-bids RFI were collected from state DoTs and were classified into several error types (e.g., coordination error, errors in drawings). The analysis of the data showed that errors in bill of quantities is the most frequent error in the bid documents followed by errors in drawing. The study findings addressed uncertainty types in construction bid documents that should be checked during a bid process, and, in a broader sense, it will contribute to advancing the construction management body of knowledge by clarifying and classifying bid risk factors at an early stage of construction projects.

• 국제학술발표논문집
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• The 9th International Conference on Construction Engineering and Project Management
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• pp.551-562
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• 2022

The building production system has been analysed by the dichotomy "employer-contractor" relationship, which failed to take into account of the role and function of multiple stakeholders within the life-cycle supply chain. This is further observed in the current conflict resolution model, which, in my argument, struggles to contribute to industrialize the building production and achieve better efficiency and effectiveness as expected. The purpose of this paper is to critically assess the issues of current programme-based conflict resolution model, and discuss alternative models how they can be modelled and applied to the construction projects. The conclusions of findings are; First, the current model is framed around the contracts and dispute resolutions based on the legal concept of "claimant and respondent" where one party(s) advances a claim once and the other(s) objects, as such it fails to reflect the nature of construction projects where multiple stakeholders are involved concurrently and for a long period of life-cycle of buildings. Second, an alternative is "Six-stakeholders model" which represents the multiple stakeholders and clarifies the flow of obligation-liability-monetary relationships among participants for a long period of life-cycle of buildings. Further, with reference to both historical and recent cases, a reflection and insight into pros and cons of programming method is added, especially as to why this method is considered to have become a mandate of the modern construction management, and how academics and practitioners should deal with it more cautiously and prudently.