• Journal of Arbitration Studies
• /
• v.32 no.3
• /
• pp.29-46
• /
• 2022

Until recently, there has been a circuit split as to whether parties to foreign private arbitral proceedings could seek assistance from the U.S. courts for discovery pursuant to 28 U.S.C. §1782. The circuit courts have differed on the issue of whether a private arbitral proceeding may be considered a "proceeding in a foreign or international tribunal" in terms of the statute, which would ultimately allow or disallow judicial assistance in taking of evidence by the U.S. district courts for use in the requested proceedings. While the U.S. Supreme Court has addressed the applicability of §1782 in its Intel decision in 2004, it had not established a test as to what constitutes a foreign or international tribunal for the purposes of §1782, thereby leaving it open for lower courts to continue to interpret §1782 in their own ways, as requests for judicial assistance in taking of evidence are filed. In the recent decision of ZF Auto. US, Inc., v. Luxshare, Ltd., the Supreme Court has finally clarified that in order for an arbitral panel to be a "foreign or international tribunal" under §1782, such panels must exercise governmental authority conferred by one nation or multiple nations. Therefore, private commercial arbitral panels are not "foreign or international tribunal(s)" for the purposes of §1782 because they do not constitute governmental or intergovernmental adjudicative bodies. Such holding is necessary and legitimate for interested parties in international arbitration, as well as, potential parties of arbitration who are contemplating alternative dispute resolution for their dispute(s).

• Journal of Arbitration Studies
• /
• v.13 no.2
• /
• pp.519-546
• /
• 2004

On June 27, 2002 Canadian Internet Registration Authority (CIRA) launched dot-ca domain name dispute resolution service through BCICAC and Resolution Canada, Inc. The Domain name Dispute Resolution Policy (CDRP) of CIRA is basically modelled after Uniform Domain Name Dispute Resolution Policy(UDRP), while the substance of CDRP is slightly modified to meet the need of Canadian domain name regime and its legal system. Firstly, this article examined CIRA's domain name dispute resolution policy in general. It is obvious that the domain name dispute resolution proceeding is non-binding arbitration to which arbitration law does not apply. However it still belongs to the arbitration and far from the usual mediation process. Domain name arbitrators render decision rather than assist disputing parties themselves reach to agreement. In this respect the domain name arbitration is similar to arbitration or litigation rather than mediation. Secondly it explored how the panels applied the substantive standards in domain name arbitration. There is some criticism that panelists interprets the test of "confusingly similar" in conflicting manner. As a result critics assert that courts' judicial review is necessary to reduce the conflicting interpretation on the test of substantive standards stipulated in paragraph 3 of CDRP. Finally, it analysed the court's position on domain name arbitral award. Canadian courts do not seem to establish a explicit standard for judicial review over it yet. However, in Black v. Molson case Ontario Superior Court applied the UDRP rules in examining the WIPO panel's decision, while US courts often apply domestic patent law and ACPA(Anticyber -squatting Consumer's Protection Act) to review domain name arbitration decision rather than UDRP rules. In conclusion this article suggests that courts should restrict their judicial review on domain name administrative panel's decision at best. This will lead to facilitating the use of ADR in domain name dispute resolution and reducing the burden of courts' dockets.

• KSCE Journal of Civil and Environmental Engineering Research
• /
• v.26 no.1D
• /
• pp.115-123
• /
• 2006

Recently, construction claims have been increased for protecting the rights of construction participants and effectively adjusting the changes under the contract. Thus, the importance of claim management has been emphasized in the construction industry. In domestic construction industry, some claim issues involved in construction activities are often being developed into disputes and even litigations because of the absence of methods or systems for the dispute resolution, and the lack of judicial precedents which can be provided as the references for resolving a particular dispute. In general, the judicial precedents related to the disputes and litigations occurred among construction participants would be extremely valuable in evaluating and analyzing current claims issues. However, such useful information has not been effectively accumulated and utilized in resolving the similar or sometimes identical types of disputes, thus requiring a large amount of additional costs, time and efforts. The primary objective of this study is to propose a web-based decision support system for construction claim management, which enables contractual participants to easily access and use the information of the judicial precedents related to the current construction claims. The decision support system is composed of 'prevention' and 'settlement' modules for avoiding and systematically resolving the construction claims.

• Journal of Korean Neurosurgical Society
• /
• v.61 no.4
• /
• pp.474-477
• /
• 2018

Objective : From November 30, 2016, the Korean Government carried the revised Medical Dispute Mediation and Arbitration Act into effect. Mediation will start automatically without agreements of the defendant, when the outcome of the patient was death, coma more than a month or severe disability. Cerebral aneurysm has a definite risk of bad outcome, especially in the worst condition. Any surgical intervention to this lesion has its own high risk of complications. Recently, Seoul central district court decided 50% responsibility of the doctors who made a rupture of the aneurysm during coiling (2015Ga-Dan5243104). We reviewed judicial precedents related to cerebral aneurysms in lawsuit using a web search. Methods : We searched judicial precedents at a web search of the Supreme Court, using the key words, "cerebral aneurysm". Results : There were 15 precedents, six from the Supreme Court, seven from the High Court, and two from district courts. Seven precedents were related to the causation analysis, such as work-relationship. Five precedents were malpractice suits related bad results or complications. Remaining three precedents were related to the insurance payment. In five malpractice precedents, two precedents of the Supreme Court reversed former two precedents of the High Court. Conclusion : Judicial precedents on the cerebral aneurysm included not only malpractice suits, but also causation analysis or insurance payment. Attention to these subjects is needed. We also need education of the independent medical examination. To avoid medical disputes, shared decision making seems to be useful, especially in cases of high risk condition or procedures.

• International Journal of Computer Science & Network Security
• /
• v.22 no.8
• /
• pp.420-424
• /
• 2022

The Arab Automotive Company was the first corporation in Saudi Arabia and was founded in 1928. Since then, the number of Saudi corporations had increased. In 1985, Tadawul (The Saudi Stock Exchange ) was instituted under the supervision of the Saudi Arabian Monetary Authority (SAMA) and the base value of the index was 1000. This decision came as a response to accelerated growth in the number of Saudi corporations which had increased during the 1970s as the Saudi's economy developed.

• Journal of Arbitration Studies
• /
• v.14 no.2
• /
• pp.107-133
• /
• 2004

In these days, arbitration helps alleviate some of the burden of a heavy caseload from the judiciary and is a viable method to resolve disputes in a relatively quick and efficient manner. An award of punitive damages is often the most significant and detrimental part of an award arising from a judicial or arbitral proceeding. In 1995, the United States Supreme Court resolved a circuit split. upholding an arbitral panel's authority to award punitive damages under a securities arbitration agreement. This decision was monumental in establishing arbitral power. However, it left several questions unanswered. For example, which, if any, standards should be applied to such awards？ The decision in Sawtelle, adopting a separate ground for review of punitive damages awards, is one that signals a significant change in the field of arbitration. This article addresses the reviewability of punitive damages awards arising out of a securities arbitration hearing. It would be necessary to introduce securities arbitration system to our disputes resolution system. Compared to American practices, there could be many differences in recognition on arbitration and legal structure in our country. Thus it will be a future assignment to consider seriously and carefully what kind of securities arbitration system will be proper for us. This article analyzed predispute arbitration agreements and agreements to arbitrate after a dispute has already arisen.

• Journal of Arbitration Studies
• /
• v.23 no.1
• /
• pp.153-175
• /
• 2013

The issue of patent validity becomes a subject of dispute under the FTA and there is a definite difference of opinion between China, Japan, and Korea. In other words, the validity of a judgment on the patent was exclusively under the jurisdiction of the administrative agency at a particular patent office. Thus, the issue arises where there is a potential judgment on patent validity. In this case, the Supreme Court rather than the patent office can offer a judgment from a judicial institution and can make a judgment in the case of a medication. In China, however, the lowest possibility of judgment on patent validity is predicted to occur in judicial institutions. Such a judgment is recognized as the Grand Bench Decision in Korea, and the court can judge the patent validation rather than the patent office. That is just the case in the Kilby case-it is invalid for reasons obvious in Japan. Therefore, there is a substantial difference between the three countries. Especially in Japan, where after the Kilby case, they revised the patent law in 2004 to introduce Article 104-3, placing the judgment of patent validity in the court, even if the "Apparentness"is not requisite. Per this law, infringers can argue for patent invalidity not only the judgment of the patent invalidation but also the infringement lawsuit. From the point of view of Japan, Korea became the judgment of trademark validation by extension and obvious cases can become directly to judge through the Supreme Court about the right that needs to examinations and registrations. In terms of the mediation, it also provides a clue about the judgment of intellectual property validation and expands the scope of the mediation in the future. From now on, in order to have active mediation procedures in the three countries, China, Japan, and Korea would need to unify regulations and application scopes for mediation in the FTA negotiation and to look forward to achieve a vigorous mediation approach.

• The Journal of the Korea Contents Association
• /
• v.8 no.12
• /
• pp.256-263
• /
• 2008

Based on the analysis of criminal investigators' recognition of judicial autopsy, this study presented policy alternatives as follows. First, a procedure is needed that optometrists and investigators jointly make previous explanations to bereaved families the status of investigation and the results of examination to their satisfaction and collect their opinions, for the purpose of obtaining an agreement to autopsy from them. Second, the dignity of the dead should be kept. To this end, particular consideration should be given to women bodies. Also, we need to minimize the number of autopsy witnesses and obtain agreement from bereaved families when there is an on-the-spot study. Third, we need to establish a guideline that investigators could request a warrant later in certain cases of dead bodies. Also, if a bereaved family positively asks for autopsy, it should be allowed through tentatively named ‘Request for Autopsy.’ Finally, To make a careful decision on whether an autopsy should be made or not, we can form a joint investigation team of public prosecutors and criminal investigators; however, an autopsy should be done only if it is deemed inevitable, considering the bereaved family's opinion.

• Korean Journal of Occupational Health Nursing
• /
• v.6 no.1
• /
• pp.23-43
• /
• 1997

The work-related diseases due to continuous overwork are mainly cerebro- and cardio-vascular ones, which is commonly called 'Karoshi', death from overwork. Many factors are capable for Karoshi : occupational stress in relation to technological renovation and industrial rationalization, competitive social structure, and accumulated fatigue accured to long time or irregular working. And its occurence is on the rise. The World Labor Report 1993 released by ILO, pointed out the diseases related to overwork and stress as one of the most important occupational health problem. In Korea, social awareness of Karoshi is at an infant stage, and reliable statistics for its occurence are not compiled in a convenient manner. Despite the rising Karoshi, there are no reliable clauses in workmen's compensation enough to settle down the disputes. Therefore, it is not uncommon that the Labour Ministry and Civil Court find difficulties in reaching an agreement. This study was intended to provide proper compensation and prevention program for workers by suggesting reasonable compensation clauses for the death from overwork. This study consists of two comparative reviews on the compensaton clauses for the death from overwork. One is to review legal standards of Karoshi among three countries, such as Korea, Japan and Taiwan. The other is to investigate the cases of Karoshi in Korea, 121 cases identified at the Labor Welfare Corperation and the Labour Ministrial process of examination and reexamination, and 73 leading cases at the High Court of Justice. The main findings of the study are as follows : 1. Comparisons of comperative review on compensation clauses for the death from overwork among three countries. 1) All of three countries have the same kinds of disease for compensation, which were cerebro-and cardiao-vascular diseases, while for cardiac disease group, Korea has the smaller number of diseases for compensation than Japan. 2) As for the definition of overwork, the three countries share equally that overload for one week prior to collapse is considered as an important factor, but accumulated chronic fatigue is disregarded. 3) As the basis of overwork, in Japan, there is a tendency to move from the conditions of an ordinary healthy adult to those of the individual concerned in Japan, whereas there is no such concern yet in Korea. 4) All the three countries use a common standard of medical judgement in demonstrating causal relationship between a job and a disease. However, Korea is progressive in the sense that in the case of CVA at worksite, the worker himself has no obligation to prove the cause. 2. The results of a comparative review on excutive decisions by Labor Ministry and judicial decisions by the Court in Korea : A judicial decision is based on the legalistic probability, but a excutive decision is not. Therefore, excutive decisions have such restrictions that : 1) TIA (transitory ischemic cerebral attack) and myocarditis are excluded from compensation, and there is little consistency of decision in the case of cause-unknown death. 2) There is a tendency not to compensate for the death from overwork since the work terms such as repeated long-time working, shift work or night-shift work are not considered as overloading. 3) There is a tendency to regard the conditions of a ordinary healthy adult rather than those of the individual concerned(age, existing diseases, health state, etc.) as the comparative basis of overload. 4) There remains a tendency not to compensate for the death from overwork in the case of collapse occuring out of workplace, on the ground of 'on the course of working' and 'in the cause of accident'. Through the study, the fact manifests itself that Korea's compensation clauses for work-related diseases due to overwork are very restrictive. So, it is necessary to extend the Labor Ministry's clauses of compensation for the death from overwork following to the recent changes of other countries and internal judicial decisions. This is very important in the perspective of occupational health that aims at health promotion of workers including prevention of the Karoshi.

• Journal of Cadastre & Land InformatiX
• /
• v.44 no.1
• /
• pp.17-35
• /
• 2014

There is no provision regarding the 'litigation on land boundary' under the Korean laws. Therefore, there are disputes in theory with respect to its nature, requirements for litigation, criteria for determination, etc., and it is necessary to establish the provisions of the law on this issue in the future. For this legislation, it is necessary to conduct a comparative consideration on laws of other countries which have completed the relevant provisions. This study, as a first step, researches a history of litigation for determination of boundary under the Roman law and medieval law, and furthermore introduces the German law which has relatively completed legal provisions on litigation for determination of boundary. In addition to common ownership litigation, the German law has established a provision on litigation for boundary as a judicial procedure considering a special place, called as a dispute on ownership of adjacent land, on the assumption that it is difficult or impossible to prove the boundary. The primary purpose of this litigation is to clarify a true boundary, and if such clarification is impossible, a boundary is discretionally created in accordance with the statutory standards under Article 920 of the German Civil Act (BGB). It means creation of the scope of land ownership by operation of decision, not only by the 'discovery of original boundary'. Both cases are different from each other in the aspect of judicial decision, but embracing them into one is a lawsuit for determination of boundary under the German law. Under the Korean legislation, it is necessary to make a theory containing two different criteria for determination into a single type of litigation, considering such aspects.