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Efforts to Promote International Dispute Resolution under the regime of Singapore Mediation Convention in Japan: From the Perspective of Amendments to JCAA Arbitration Rules and Arbitration Act of Japan (싱가포르협약 이후 일본의 국제분쟁해결절차 활성화 동향: JCAA 중재규칙과 일본 중재법 개정안을 중심으로)

  • Cho, Soo-Hye
    • Journal of Arbitration Studies
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    • v.32 no.2
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    • pp.55-83
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    • 2022
  • The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Mediation Convention) results in new challenges to the area of international dispute resolution by providing the enforcement regime for mediated settlement agreements, which have not been admitted as enforceable in some civil law countries, including Korea and Japan. Japan has struggled to promote international arbitration and international mediation, and such efforts were accelerated by the adoption of the Singapore Mediation Convention in 2018. In order to standardize arbitration proceedings and promote the practice of international arbitration, Japan produced two noticeable results: the new JCAA Arbitration Rules and the amendment to the Arbitration Act of Japan. In addition to that Expedited arbitration procedure and Interactive Arbitration Rules of JCAA present the new possibility of international arbitration procedure for civil law practitioners, the amendment to the Arbitration Act of Japan suggests significant implications to Korea for its manifest provisions regarding enforcement requirements and proceedings and its protection of Access to Justice for foreign law practitioners.

Practical Suggestions for Promoting of Virtual Hearings in International Arbitration (국제중재에서 화상심리의 활성화를 위한 실무적 제언)

  • Kim, Yong Il;Hwang, Ji Hyeon
    • Journal of Arbitration Studies
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    • v.32 no.2
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    • pp.115-133
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    • 2022
  • This article examines the Practical Suggestions for Promoting of Virtual Hearings in International Arbitration. COVID-19 had an prompt and meaningful impact on the practice of international arbitration. Nevertheless arbitral institutions, arbitral tribunals, and other participants learned quickly how to deal with this new challenge. The use of virtual or online hearings has been gaining popularity during the COVID-19 pandemic. Either with the help of arbitral institutions or by themselves, the parties realized that the only way to safeguard a hearing at all was to run it virtually. In fact, hearings by video conference or other technical means seemed to be the magic solution. One of the leading arbitration institutions, i.e. the International Chamber of Commerce in Paris has amended its Arbitration Rules to accept the subjects of recent international arbitration practice. Other arbitral institutions have similarly amended their respective rules. Many recent and adaptable institutional arbitration rules, either expressly or implicitly, allow for hearings to be conducted remotely. The trend has already been set by the leading institutions as ICC, LCIA, ICSID, SCC SIAC, and many more will follow. In short, enthusiasts of virtual hearings even believe that virtual hearings are "the new normal".

Public Policy Exception under Russian Law as a Ground for Refusing Recognition and Enforcement of Foreign Arbitral Awards

  • Andreevskikh, Liliia;Park, Eun-ok
    • Journal of Arbitration Studies
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    • v.32 no.3
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    • pp.47-70
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    • 2022
  • This paper studies legal regulation of the public policy exception in the Russian Federation and domestic judicial practice on the issue. It reviews current legislation and analyzes a number of recent court cases where an arbitral award rendered by a foreign arbitration body was refused recognition and enforcement based on public policy violation. By doing so, it contributes to the knowledge on the concept of public policy in the Russian legal system and how public policy can affect the process of recognition and enforcement of foreign arbitral awards on its territory. The review of court cases demonstrates different aspects of how the public policy exception can be applied by Russian arbitrazh courts. Such decisions can provide a clearer picture of the kinds of situation that can lead to invoking the public policy clause by the court. Also, it is of practical value as persons preparing to file a claim or to be a defendant in a Russian court can be required to present existing court decisions in support of their claim or defence.

Legal Doctrines for the U.S. Federal Courts and the International Investment Arbitral Tribunals in Adjudicating the Climate Change Disputes

  • Shin, Seungnam
    • Journal of Arbitration Studies
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    • v.32 no.3
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    • pp.3-27
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    • 2022
  • Climate change is a man-made disaster that has become a major global concern today. With increasingly visible symptoms of climate change in recent years, it has become evident that climate action can no longer be dismissed as a mere matter of choice, but as a matter of survival for the human being. To address the impending climate change crisis in a collaborative and sustainable manner, the international community has been taking various measures including Kyoto protocol and the Paris Agreement. With respect to the private investor's project investment in line with international agreements on climate change, recently we have seen multiple legal judgments which clearly indicate the subject of judicial responsibility for investment in climate change related projects. However, in order to hold judicial responsibility occurring during the implementation of climate change related projects, a causal relationship between the responsible entities and clear responsibility must be demonstrated, and applicable institutional arrangements need to be arranged. It may be the right time for global community to consider shifting not only to human ethical obligations but also legal obligations. In this regard, concerned governments should consider legislating arbitration laws, regulations, and institutional arrangements in more specific and applicable manner.

Challenge through Annulment of ICSID Arbitral Awards (ICSID 중재판정의 취소를 통한 불복)

  • Kim, Yong Il;Oh, Hyon Sok
    • Journal of Arbitration Studies
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    • v.31 no.1
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    • pp.3-22
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    • 2021
  • This article examines the Challenge through Annulment of ICSID Arbitral Awards. Either party may request annulment of the award by applying in writing addressed to the ICSID Secretary-General on one or more of the grounds under Article 52 of the ICSID Convention. The annulment proceedings must focus on the award itself. Because committees have no inherent supremacy over the arbitral tribunal, they should not review the tribunal's findings on evidence, damage, interest, and cost findings. Otherwise, the parties would have, in effect, two opportunities, and that will almost certainly weaken the reliability of the entire ICSID system. In short, because of the limited scope of review under ICSID annulment and because annulment is not an opportunity for the parties to re-try the case, committees should not allow new arguments or new evidence. Since an annulment committee is not a court of appeals, it cannot create a new res judicata. Committees can only decide not to annul an award, thus confirming the existing res judicata or annul the award, in which case the affected decision ceases to be res judicata. An obvious annulment decision stipulating which particular findings of the award remain res judicata should prevent any uncertainty in resubmission proceedings.

The Study on the Review of Domestic Laws for Utilizing Health and Medical Data and of Mediation for Medical Disputes (보건의료데이터 활용을 위한 국내 법률검토 및 의료분쟁에 대한 조정 제도 고찰)

  • Byeon, Seung Hyeok
    • Journal of Arbitration Studies
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    • v.31 no.2
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    • pp.119-135
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    • 2021
  • South Korea has the most advanced technology in the Fourth Industrial Revolution era because of its high-speed Internet commercialization. However, the industry is shrinking due to its various regulations in building and its utilization of personal information as big data. Currently, South Korea's personal data utilization business is in its early stages. In the era of the 4th Industrial Revolution, it is difficult for startups to use data. There are various causes here. Above all, legal regulations to protect personal information are emphasized. This study confirms that transactions of personal medical records through My Data can be made. Moreover, it confirms that there is a need for a mediating role between stakeholders. This study lacks statistical access in the process of performing stakeholder roles. However, personal medical records will be traded safely in the future, and new subjects will enter the market. Furthermore, the domestic bio-industry will develop. Through this study, various problems were derived in establishing Medical MyData in Korea. Moreover, it looks forward to continuing various studies in the health care sector in the future.

Major Issues of the Singapore Convention on Mediation as a Tool for Resolving International Disputes (국제분쟁 해결수단으로서 싱가포르조정협약의 주요 쟁점)

  • Kim, Yong-Kil
    • Journal of Arbitration Studies
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    • v.32 no.1
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    • pp.3-24
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    • 2022
  • Today's society appears to be entering a hyper-connected society due to mental notions and information communication technologies being converged for advanced development. Trade between countries around the world is increasing amidst the digital economy and fourth industrial revolution, which is being accompanied by a growing number of trade disputes. Appropriately resolving disputes is crucial for corporate growth, and ADR is drawing attention as a more reasonable solution between interested parties compared to lawsuits. This also applies to international trade as there is growing movements to resolve disputes between parties more efficiently and feasibly through mediation. The adaptation of an international convention for implementation in a third country for settlement agreements drawn up through such international mediation is a new and unprecedented attempt. In other words, the Singapore Convention on Mediation looks to resolve international commercial disputes by granting executive force on the outcomes of mediations. However, a system to solve various legal issues must be put into place to execute the outcomes in the respective country or third country, and a variety of tools for this are necessary.

An Arbitral Case Study on Burden of Proof for Non-Conformity of Goods Under CISG

  • Kim, Eun-Bin
    • Journal of Arbitration Studies
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    • v.32 no.3
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    • pp.71-91
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    • 2022
  • The CISG does not stipulate the subject of the burden of proof, and in the arbitral award, the buyer is liable for proof compared to the seller for nonconformity of the product. Without a unified interpretation of the burden of proof of non-contractual goods, confusion of uncertainty may increase if the parties to the sale contract have a dispute due to the trade in goods. It is an important issue to create a unified regulation on this because the courts or arbitration agencies of the Contracting States of the CISG interpret and apply the "seller's obligation to conform to the goods contract" stipulated in this Convention in various ways. In this study, in the case of international Sales of Goods there is a tendency to prefer arbitration through arbitration agencies in the dispute, so the subject of burden of proof is analyzed through arbitration cases applied by CISG as the governing law. Most international commodity trading around the world is regulated by this Convention, but according to the rigid convention regulations, it is analyzed and interpreted through cases where this convention is applied to each country's international arbitration, suggesting the need for a rigid CISG revision.

The Status of Damage Relief in the Cosmetics Industry and the ADR System

  • Um, Mi Sun
    • Journal of Arbitration Studies
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    • v.32 no.3
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    • pp.93-109
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    • 2022
  • Cosmetics are products that consumers use every day to maintain or improve the health of their skin and hair. Therefore, the expansion of the cosmetics market leads to the expansion of disputes over cosmetic damage. Along with constant social changes, new conflicts continue to arise. In order to resolve these disputes, various consumer dispute resolution organizations and methods are required. Therefore, Alternative Dispute Resolution (ADR), an alternative method that can provide a reasonable judgment on problems that occur during the manufacture and distribution of cosmetics with expert knowledge of the industry, is required. Korea resolves disputes between consumers and manufacturers caused by cosmetics through the ADR of the Korea Cosmetics Association and the Korea Consumer Agency. It handles disputes related to accidents caused by cosmetics, offers consultation on consumer complaints on cosmetics and provides information on accidents and safety related to cosmetics. It is not possible to completely eradicate disputes from cosmetic damages. Therefore, it is necessary to expand and efficiently operate the cosmetic ADR system for consumers. In this study, the current status of cosmetic damage disputes and damage relief and the role of the domestic ADR system were reviewed. Consumers should be easily relieved from damage caused by cosmetics. By accumulating important precedents with an efficient cosmetic damage dispute resolution system, disputes over cosmetic damage should be smoothly resolved.

A Study on Developing SMEEBI(Small and Medium-sized Enterprise Export Business Index) (중소기업수출경기지수 개발에 관한 연구)

  • Maeng, Cheol-Kyu
    • Journal of Arbitration Studies
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    • v.32 no.1
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    • pp.93-110
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    • 2022
  • Korea, a resource-scarce country, has been undergoing export-led economic growth in the form of processing and intermediary trade for the past several decades. In Korea, which has an export-led economic structure centered on processing trade, the export economy precedes the domestic economy, so Korea's monthly export performance has been used as an important indicator of economic indicators in itself. In recent decades, small and medium-sized enterprises (SMEs), which account for 99% of the total number of domestic enterprises, account for about 35% of exports as of 2021. In this study, from the viewpoint of emphasizing the export contribution of SMEs, the Small and Medium-sized Enterprise Export Business Index is developed based on the actual export performance of SMEs, through which this paper could present alternative index differentiated from the existing Business Survey Indexes.