• Journal of Arbitration Studies
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• v.26 no.3
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• pp.67-91
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• 2016

In an era where the international investment and trade between Korea and China grow daily, the importance of international arbitration cannot be overstated. The Korean Arbitration Law was enacted with reference to the UNCITRAL Model Law. When the Chinese Arbitration Law was being enacted, the UNCITRAL Model Law was also referred to, but there are some discrepancies between the two. This article conducts comparative analysis based on the Korean and the Chinese Arbitration Laws, the Chinese Civil Procedure Law and the KCAB and the CIETAC arbitration rules. In order to adopt the UNCITRAL Model Law amended in 2006, Korea revised its Arbitration Law in 2016. The revised Law includes a more comprehensive legal regime regarding interim measures, emergency arbitrator, etc. In China, the enforcement of foreign-related arbitral awards and foreign arbitral awards is carried out mainly by intermediate people's courts. In China, the report system to the higher people's court for refusing the enforcement of foreign-related arbitral awards and for refusing the recognition or enforcement of foreign arbitral awards has the effect of safeguarding foreign-related arbitral awards and foreign arbitral awards in China. Both Korea and China joined the New York Convention, and domestic courts may refuse the recognition and enforcement of foreign arbitral awards according to the New York Convention.

• Journal of Arbitration Studies
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• v.30 no.3
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• pp.67-94
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• 2020

This paper examines the current enforcement regime of Korea and provides an overview of the same with focus on the changes before and after the 2016 revision of the Korean Arbitration Act. It briefly studies the pro-arbitration bias of the New York Convention, as well as the Korean judiciary's stance on the enforcement of foreign arbitral awards. Some of the substantial issues discussed in the paper include the major procedural changes brought about by the 2016 amendment with respect to the enforcement of arbitral awards. The paper also discusses the rare instances where the Korean judiciary refused to recognize or enforce an arbitral award, and the reasoning behind the refusal. The paper discusses and analyzes four court judgments that reflect the Korean judiciary's position on the enforcement of foreign and domestic arbitral awards in Korea. It focuses on the NDS v. KT Skylife case, where the court of first instance refused the enforcement on grounds that the relief granted by the arbitral tribunal was not specific enough for enforcement. Ultimately, the appellate court, although agreeing on the specificity requirement, reversed the ruling and granted an enforcement judgment on grounds that the application for enforcement had the legal interest to request an enforcement judgment.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.41
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• pp.135-165
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• 2009

It is not difficult to understand from laws and practices in arbitration area that arbitrators appointed have as many rights as their duties to do their performing duties especially to participate in the proceeding and deliberations of the arbitral process. However, sometimes can be happened that an arbitrator who was appointed by a party, refuses to participate in the proceeding or resign during the arbitral process. Generally, in the case, it is provided that the arbitrator who fails to act can be replaced by a substitute arbitrator. When it is decided to change an arbitrator, the appointment of an substitute arbitrator is likely to cause time delay, high cost with inconvenience. And also it is to be considered for additional cost and delay from possible need for repeating the hearings that were held at former arbitral tribunal. Sometimes, a party want to delay intentionally the arbitration process by using right for challenging arbitrator or designing with an arbitrator who was appointed by the party. That is why the reason it has been discussed for allowing the truncated tribunal that the remaining arbitrators that is named as truncated tribunal are permitted to complete the proceeding and issue decisions or arbitral awards. Unfortunately there are uncertain views on the validity of arbitral proceeding or recognitions and enforcement of truncated tribunal decisions in international commercial arbitration. In this article it is focusing on discussing truncated tribunal's benefits or barriers and problems through comparing with famous arbitral rules of international arbitral institutes including rules of UNCITRAL, LCIA, KCAB and the revising draft arbitration rule of UNCITRAL.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.55-77
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• 2008

The purpose of this paper is to make a research on the administration and practical problems of the arbitral organization called "uth-North Commercial Arbitration Commission". The Arbitration Commission shall be set up under the South-North Agreements officially called "reement on Settlement Procedure of Commercial Dispute" and "reement on Organization and Administration of the South-North Arbitration Commission" between the South and the North of Korea. A variety means of dispute settlement including friendly consultations, conciliation and arbitration called Alternative Dispute Resolution(ADR) will be used frequently and institutionally to settle commercial disputes and conflicts arising from economic transactions between the South and the North of Korea. Under the circumstances, it is becoming a problem of vital importance how to operate the Arbitration Commission for the prompt and effective settlement of the South-North commercial disputes. First of all, the South and the North of Korea should recognize the availability of prompt and effective means of dispute resolution such as arbitration and conciliation to be made by the Arbitration Commission would promote the orderly growth and encouragement of th South-North trade and investment, for which the following measures should be taken as soon as possible : 1. Enactment of the South-North Arbitration Rules. 2. Designation of the arbitral institution by North-Korean side. In this connection, the Korean Commercial Arbitration Board(KCAB) was already designated officially as the arbitral organization of South Korean side as of April 17, 2007. 3. Arbitration shall be held in the place where the respondent has his domicile, in case that both parties fail to agree as to the place of arbitration. 4. Permission of a third country arbitration in case that both parties agree to do so. 5. To become a member country of international arbitration agreements including the New York Convention.

• Journal of Arbitration Studies
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• v.24 no.1
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• pp.85-109
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• 2014

Mediation and Arbitration are two distinct ADR processes. Their dissimilarity lies in the principle that in mediation the parties themselves decide what the resolution to the problem is, whereas in arbitration the arbitrator makes that determination. Med-Arb, hybrid of the two methods, is a fairly new ADR process dating back to the 1970s. Med-Arb capitalizes on the advantages of both mediation and arbitration, while eliminating many of their disadvantages. Mediation has the advantage of allowing for resolutions rather than decisions. Arbitration has the advantage of guaranteeing that the matter will be resolved when the procedure is over. In Med-Arb, the participants agree to be parties to mediation, and if the mediation comes to an impasse, a final settlement will be reached through arbitration. This study first explicates the origin and the development of Med-Arb in the United States. This study shows that the emergence of Med-Arb is benefited from the fact that arbitration has lost its own advantages ie, speed, cost-saving, and maintenance of an ongoing relationship between the disputants. Second, this study analyzes four cases in which Med-Arb is applied to various kinds of disputes as a tool of dispute resolution: labor disputes, entertainment disputes, will disputes, and international commercial disputes, consecutively. All those case studies show the generality of Med-Arb as a dispute resolution channel. Third, this study compares the advantages and disadvantages of Med-Arb. Finally, this study discusses the implications of Med-Arb. In particular it provides the universality of this hybrid form of dispute resolution in the East and West. For example, we show that China has its own distinctive Med-Arb system, where it has developed from ancient Confucian philosophy. Japan also emphasizes the role of an arbitrator who settles the disputes in the course of arbitration. The domestic arbitration rules of the Korean Commercial Arbitration Board (KCAB) have a similar process in that arbitration contains an element of conciliation. With regard to the universal characteristics of Med-Arb, it is necessary to analyze the pros and cons of Med-Arb at a deeper level in the future. One caveat is that it is necessary to handle the issues of the neutrality of the mediator-arbitrator.

• Journal of Arbitration Studies
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• v.29 no.2
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• pp.239-282
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• 2019

The importance of ADR(Alternative Dispute Resolution), which has the advantage of expertise, speed and neutrality due to the increase of arbitration cases due to domestic and foreign construction disputes, has emerged. Therefore, in order for the nation's arbitration system and the arbitration Organization to jump into the ranks of advanced international mediators, it is necessary to research the characteristics and advantages of these arbitration Organization through a study of prior domestic and foreign research and operation of international arbitration Organization. As a problem, First, education for the efficient promotion of arbitrators (compulsory education, maintenance education, specialized education, seminars, etc.). second, The effectiveness of arbitration in resolving construction disputes (hearing methods, composition of the tribunal, and speed). third, The issue of flexibility and diversity of arbitration solutions (the real problem of methodologies such as mediation and arbitration) needs to be drawn on the Arbitration laws and practical problems, such as laws, rules and guidelines. Therefore, Identify the problems presented in the preceding literature and diagnosis of the defects and problems of the KCAB by drawing features and benefits from the arbitration system operated by the international arbitration Institution. As an improvement, the results of an empirical analysis are derived for "arbitrator" simultaneously through a recognition survey. As a method of improvement, First, as an optimal combination of arbitration hearing and judgment in the settlement of construction disputes,(to improve speed). (1) A plan to improve the composition of the audit department according to the complexity, specificity, and magnification of the arbitration cases - (1)Methods to cope with the increased role of the non-lawyer(Specialist, technical expert). (2)Securing technical mediators for each specialized expert according to the large and special corporation arbitration cases. (2) Improving the method of writing by area of the arbitration guidelines, second, Introduction of the intensive hearing system for psychological efficiency and the institutional improvement plan (1) Problems of optimizing the arbitration decision hearing procedure and resolution of arbitration, and (2) Problems of the management of technical arbitrators of arbitration tribunals. (1)A plan to expand hearing work of technical arbitrator(Review on the introduction of the Assistant System as a member of the arbitration tribunals). (2)Improved use of alternative appraisers by tribunals(cost analysis and utilization of the specialized institution for calculating construction costs), Direct management of technical arbitrators : A Study on the Improvement of the Assessment Reliability of the Appraisal and the Appraisal Period. third, Improvement of expert committee system and new method, (1) Creating a non-executive technical committee : Special technology affairs, etc.(Major, supports pre-qualification of special events and coordinating work between parties). (2) Expanding the standing committee.(Added expert technicians : important, special, large affairs / pre-consultations, pre-coordination and mediation-arbitration). This has been shown to be an improvement. In addition, institutional differentiation to enhance the flexibility and diversity of arbitration. In addition, as an institutional differentiation to enhance the flexibility and diversity of arbitration, First, The options for "Med-Arb", "Arb-Med" and "Arb-Med-Arb" are selected. second, By revising the Agreement Act [Article 28, 2 (Agreement on Dispute Resolution)], which is to be amended by the National Parties, the revision of the arbitration settlement clause under the Act, to expand the method to resolve arbitration. third, 2017.6.28. Measures to strengthen the status role and activities of expert technical arbitrators under enforcement, such as the Act on Promotion of Interestments Industry and the Information of Enforcement Decree. Fourth, a measure to increase the role of expert technical Arbitrators by enacting laws on the promotion of the arbitration industry is needed. Especially, the establishment of the Act on Promotion of Intermediation Industry should be established as an international arbitration agency for the arbitration system. Therefore, it proposes a study of improvement and differentiation measures in the details and a policy, legal and institutional improvement and legislation.