• Journal of Arbitration Studies
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• v.30 no.2
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• pp.43-68
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• 2020

The "arbitration" system resolves disputes through judgments on rights relations or claims between disputed parties by judging by private trial, but it does not have organizational and material bases to execute the contents of these judgments. Therefore, unless the parties succeed in voluntarily surrendering to the results of the arbitration award, the implementation of the award will be accomplished by the enforcement of the assistance of the National Court. However, unlike the court's ruling, the arbitration tribunal does not generate enforcement power from the judgment itself, and it must be filed with the court for execution. In this regard, Germany provides for arbitration proceedings in the Civil Procedure Act Volume 10. In particular, Article 1060 governs the approval and enforcement of domestic arbitral awards. Accordingly, the procedure for declaring the feasibility of domestic arbitration proceedings and the execution of forced execution are commenced. Regarding the enforceable declaration of a domestic arbitral award, it differs from the simpler process requirements compared to the procedure in a foreign arbitral award, and usually has the same effect as a final judgment between the parties without a separate approval procedure. However, the arbitration award does not constitute an enforceable power that can be implemented, but is enforced through the national court's declaration procedure. However, if there is a ground for cancellation as provided for in Article 1059 (2) of the German Civil Procedure Act, the arbitral award is canceled and the application for enforcement is dismissed.

• Journal of Arbitration Studies
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• v.30 no.2
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• pp.3-21
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• 2020

This study focuses on the binding power of the interim measures of the arbitral tribunal in ICSID arbitration and the effects of non-compliance. Upon consideration of the intentions of those who made these rules, given the interpretation of the provisions of Article 47 of the ICSID Convention and Article 39 of the ICSID Arbitration Rules, it was found reasonable to consider that the interim measures made by the arbitral tribunal in ICSID arbitration were not binding. However, in actual ICSID arbitration, most arbitral tribunals approve the binding power of the interim measures based on the purposes and the characteristics of the interim measures. As such, there is a certain distance between the legislative intention for interim measures in ICSID arbitration and the judicial practice, but considering the demand for maintaining the integrity of the arbitration procedure, it is reasonable to consider that the interim measures are binding. In addition, the fact that the interim measures have binding power can increase the possibility that the party will comply with the interim measures. Thus, the binding power of interim measures not only encourages voluntary compliance to the interim measures of the party, but can also cause negative consequences for the party if it is not met. In other words, the arbitral tribunal will be able to form negative inferences against the party who does not comply with it in a procedural side, and in the practical side, the party who does not comply with the interim measures will be compensated for the additional damages for non-compliance.

• Journal of Arbitration Studies
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• v.30 no.2
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• pp.165-184
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• 2020

In this study, the factors affecting opportunism in the relationship between suppliers and key accounts were analyzed from the viewpoint of transaction cost theory, market power theory, and relationship marketing theory. As a result of the hypothesis test, Hypothesis 1 stating that demand volatility will have a positive effect on opportunism and Hypothesis 2 that transaction-specific investment will have a positive effect on opportunism were also supported. In addition, Hypothesis 3 stating that channel power will have a positive effect on opportunism was also supported. Lastly, Hypothesis 4 stating that relational commitment will have a negative effect on opportunism was not supported, along with Hypothesis 5 stating that transaction satisfaction will have a negative effect on opportunism. The theoretical and practical implications of this study are as follows. This study has identified the antecedents of opportunism by comprehensively applying the transaction cost theory, market power theory, and relationship marketing theory. In addition, this study can identify what a company should manage specifically to lower opportunism by identifying the antecedents of opportunism. The limitations of this study and the directions for future studies are as follows. First, not all of the antecedents of opportunism of key accounts have been extensively investigated from the viewpoint of the transaction cost theory, market power theory, and relationship marketing theory. In the future, it is necessary to identify additional factors. Second, the study was conducted only in the supplier's viewpoint. In future studies, it is expected that more accurate research results can be obtained by simultaneously examining not only the supplier's point of view but also the buyer's point of view.

• Journal of Arbitration Studies
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• v.30 no.3
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• pp.21-45
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• 2020

The major legal issues of this case were governing law questions regarding the liability of the shipowner/employer to its employee. It is true that in the absence of the parties' choice of law, the arbitral tribunal may apply the substantive laws or rules of law which it deems appropriate. However, it does not mean that the arbitral tribunal has arbitrary discretion in choosing the appropriate law as the governing law of the case; rather, the arbitrators should carefully examine the conflict of law rules of the forum and the requirement of the law of the country where the upcoming arbitral award will be enforced. They must bear in mind the role of the "connecting factors" in determination of the governing law. Therefore, the application of an alien law, which has minimal connecting factor with the case, may lead to a conclusion that is hardly understood by the parties. On the same token, the arbitrators must pay attention to applying the mandatory rules of a country, the laws of which not being the governing law of the issue. It is said that the application of the mandatory rules is a necessary evil to secure the enforcement of the award in the country, which has national interest in applying its own law to the issue. Further, arbitrators must pay attention to the consistent application of the law and respect the integrity of a legal system to reach a fair conclusion. The place of service of a seafarer for a vessel navigating international sea ought to be its home port country rather than the country of the ship registry, and the party autonomy in choice of the law in a seafarer employment should be respected.

• Journal of Arbitration Studies
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• v.30 no.3
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• pp.47-66
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• 2020

Due to the division of China's departmental laws, the disconnect between theory and practice, and the influence of traditional academic thinking on the understanding of the knowledge structure of arbitration legal talents in practice, the construction of law school colleges, teaching teams, and research centers mostly revolves around departmental laws, tearing the connection of the arbitration legal system. The student-centered, process-guaranteed, and result-oriented arbitration master of law training model is "virtualized," the shaping of arbitration professionalism is ignored, the coverage of practical teaching is narrowed, and the arbitration legal profession is mostly formalized. The prevalence of specialized curriculum systems shortage, single faculty, formalized practical teaching, outdated curriculum settings, unsuitable curriculum system design for development, and inaccurate professional curriculum standards and positioning renders it difficult to integrate the "Belt and Road." The cutting-edge, the latest research results, and practical experience cannot reflect the connotation, goals, and requirements of "Entrepreneurship" education, as well as arbitral issues such as the ineffective monitoring of practical education and the inconsistent evaluation of standards and scales. Under the background of the "Belt and Road," based on system theory and practice and through training goals that innovate and initiate organizational form, activity content, management characteristics, assessment and support conditions, etc., the arbitration law teaching curriculum system is gradually improved and integrated. Through the establishment of a "Belt and Road" arbitration case file database and other measures, a complete arbitration law theory and practice teaching guarantee system has been established. Third parties are introduced, arbitration law experimental modules are developed, students are guided how to discover new knowledge, new contents are mastered, solidarity, cooperation, and problem-solving capabilities are cultivated in the practice of the "Belt and Road," and quality education, vocational education, and innovation education are organically integrated. In order to implement the requirements of arbitration law education, innovation development and collaborative management of arbitration law teaching practice base should be cultivated, thus giving full play to the effect of collaborative education between universities and arbitration institutions.

• Journal of Arbitration Studies
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• v.28 no.1
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• pp.77-97
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• 2018

The Court of Arbitration for Sport (CAS) has been adjudicating on sports-related disputes since 1984. CAS can be regarded as world supreme court for sports settling down about 4200 cases including doping issues. Doping disputes are generally processed by CAS Appeals division and Anti-Doping Division. An appeal against the decision by sports-related bodies may be filed with CAS Appeals Division. Doping issues concerning Olympic games are on Anti-Doping Division, introduced from 2016 Olympic games and invested with complete authority by IOC. The Award of Maria Sharapova finds a player is responsible if found to have committed any Anti-Doping Rule Violation regardless of his/her intention or fault. It offers detailed jurisprudence on imposing such a specific period of ineligibility in view of the totality of the circumstances. The award of Xinyi Chen also confirms the Strict Liability Rule on anti-doping disputes. The player appealed there could be either accidental contamination of drinks, or doping laboratories' mistakes that affected the test results. But, all of them were rejected. Though dealing with doping disputes in a timely manner is important for seasonal sports events like Olympic games, it is necessary to prepare the acceptable and fair process for the players in the future.

• Journal of Arbitration Studies
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• v.28 no.1
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• pp.43-75
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• 2018

The Court of Arbitration for Sport (CAS) was created to focus on the procedural complexity in the resolution of sports-related disputes, confidentiality, the matter of expenses, and the necessity of prompt settlement in the field of international sports. The CAS had originally launched as one of bodies of International Olympic Committee (IOC), but later it became properly operational as an independent organization to facilitate sports-related disputes when the International Council of Arbitration for Sport (ICAS), which came into force in accordance with the Paris Agreement in 1984 and has acted in place of IOC, took responsibility for the administration and financing of the CAS. The CAS is composed of four divisions, the Ordinary Arbitration Division and the Appeals Arbitration Division, the Ad hoc Division created later in 1996 and the CAS Anti-Doping Division (CAS ADD) established as from 2016 only to conduct proceedings and to issue decisions on an alleged anti-doping rule violation, and two (Sydney and New York) permanent decentralized offices. The head office of the CAS is Lausanne, Switzerland. Since CAS ADD was established, CAS Ad hoc Division has had jurisdiction over the appeal case against a decision pronounced by the IOC, an NOC, an international Federation or an Organizing Committee for the Olympic Games. Although there are so many virtues of CAS as a resolution authority for sports-related disputes in terms of its organization, arbitration rules and procedures, it is also true that the CAS has not been showing the consistency. The CAS should overcome these issues through much more advanced system and its instant and fair decisions.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.59-81
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• 2017

The purpose of this study is to find a solution to disputes in the process of producing digital music sources. At present, the center of the world music market including the domestic market has been completely transformed from the tangible musical record market to the intangible sound source market. Due to these environmental changes, the music production process becomes industrialized and specialized, causing conflicts of interest among the individuals in the process. First of all, this study examined changes in the music market which is the background of the dispute, identified the problems of the process and suggested solutions while summarizing the meaning and role of each process of producing a sound source that may arise during the sound production process. This study covers plagiarism between producers, copyright infringement of the creator against assistant creator caused by the industrialization and division of the production environment, issues related to the rights of sound engineers whose role and importance become bigger as acoustic technology develops and music genres become more diverse, and vertical hierarchy due to the formation of oligopoly by several distributors with huge capital. As a result of the study, it was concluded that Alternative Dispute Resolution (ADR) system is suitable for solving these problems. Specific methods of using ADR include activation of the dispute settlement system of the Korea Copyright Commission, active use of the arbitration clause specified in the standard contract, and recalculation of labor costs and earnings from copyright through mutual negotiations. This paper can be differentiated from previous studies in that it studied overall problems that might arise in the process of digital music source production and suggested ADR utilization as the solution.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.37-57
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• 2017

On 9 March 2017, a Tribunal constituted under the ICSID Convention issued its ruling in the case of Ansung Housing v. People's Republic of China, dismissing with prejudice all claims made by the Claimant, Ansung Housing Co., Ltd., in its Request for Arbitration, pursuant to ICSID Arbitration Rule 41(5). Ansung Housing v. PRC has drawn attention since it is the first case where an investor with Korean nationality initiated an ICSID arbitration on the basis of the Korea-China Bilateral Investment Treaty (BIT) as amended in 2007 between the Republic of Korea and the People's Republic of China. The Tribunal finds that its ruling is about a lack of jurisdiction of the ICSID and of its own competence as well as regarding manifest lack of legal merit due to a lack of temporal jurisdiction, since a Respondent's Rule 41(5) objection is concerned with the three-year limitation period in Article 9(7) of the Korea-China BIT. The Tribunal held that, under Article 9(7) of the Korea-China BIT, the limitation period begins with an investor's first knowledge of the fact that it has incurred loss or damage, not with the date on which it gains knowledge of the quantum of that loss or damage. Finally, the Tribunal held that Ansung submitted its dispute to ICSID and made its claim for purposes of Article 9(3) and (7) of the BIT after more than three years had elapsed from the date on which Ansung first acquired knowledge of loss or damage and that the claim is time-barred and, as such, is manifestly without legal merit. It remains to be seen whether the aggrieved Claimant initiates annulment proceedings before an ad hoc committee under the ICSID Convention. It is quite interesting to see whether the decisions by the Tribunal should be reversed on the basis of the Claimant's arguments as to the start date as well as the end date of the limitation period under the Korea-China BIT.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.3-18
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• 2017

International legal reviews on ISD, a procedure for resolving disputes under the Korea-US FTA, are examined from the perspective of law. If the ISD system does not exist, even if the investor suffers damage due to the illegal act of the host country, he or she must file a lawsuit through the court of the host country, which is unreasonable from the investor's point of view and makes it difficult to guarantee fairness and transparency. Some of the Koreans pointed out that there are some problems with the KORUS FTA dispute settlement regulations, and that the United States federal courts are taking a friendly attitude to the decisions made by the US Customs in determining the dispute by the KORUS FTA Agreement and the US Customs Act. In cases where the State does not violate international law but results in harmful consequences, the responsibility of one country is borne by the treaty. Foreign investment always comes with many challenges and risks. Therefore, the ISD system is a fair and universal arbitration system, which is considered to be a necessary system even for protecting the Korean companies investing abroad. In the investment treaty, compensation for the nationalization of foreign property and reimbursement under the laws of the host country were dissatisfied with foreign investors. In particular, some Koreans have pointed out that there are some problems in the KORUS FTA dispute resolution regulations and there is a need for further discussion and research. Based on the experiences and wisdoms gained in the course of Korea-US FTA negotiations, the dispute arbitration mechanism is urgently needed to reduce the possibility of disputes and to make amicable directions.