• Journal of Korea Trade
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• 제24권6호
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• pp.101-114
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• 2020

Purpose - This paper examines the "Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region" (the Arrangement), which became effective on October 1, 2019, calling on courts of mainland China and Hong Kong for reciprocal commitment in support of court-ordered interim measures in aid of arbitral proceedings. Because the Hong Kong courts have granted interim measures in aid of arbitral proceedings seated in and outside of Hong Kong even prior to the Arrangement becoming effective, this paper focuses on the significance of the Arrangement making Hong Kong the first and only seat outside of mainland China from which parties to arbitral proceedings may successfully obtain interim measures to preserve of assets, properties, and/or evidence from Chinese courts to be enforced in China. Design/methodology - The significance of interim measures in international arbitration and the existing circumstances of interim measures in support of international arbitral proceedings in mainland China and Hong Kong are discussed first in this paper. Due to the confidential nature of arbitral proceedings, while the details of applications for interim measures pursuant to the Arrangement cannot be discussed, in examining the implications of the Arrangement, the relevant and necessary information was made available from the Hong Kong International Arbitration Centre, as it is one of the six qualified arbitral institutions under the Arrangement. Findings - This groundbreaking Arrangement provides a mechanism for parties with China-related matters to more effectively resolve their disputes, the opportunity for Hong Kong to become an unparalleled seat of arbitration, and for mainland China to overcome some of its negative perceptions in international arbitration. Because the Arrangement also allows parties to directly apply for interim measures from mainland Chinese courts, parties with China-related matters should take note of this potential bypassing of the procedural hurdle, which usually requires an arbitral institution to submit such applications in China, and make strategic decisions accordingly as may be appropriate. Originality/value - Because the Arrangement is a recent yet a significant agreement calling on courts of mainland China and Hong Kong for reciprocal commitment in support of court-ordered interim measures in aid of arbitral proceedings, this study will provide useful guidance for parties with China-related matters all over the world, especially in light of China's rapid economic growth and extensive and prominent trade relationships in today's world. Parties who foresee the need for interim measures from mainland Chinese courts should designate Hong Kong as their seat of arbitration and select one of the six qualified arbitral institutions under the Arrangement to administer their arbitral proceedings in order to benefit from the Arrangement.

• 한국중재학회지:중재연구
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• 제15권2호
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• pp.61-91
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• 2005

It is well recognized that the availability of prompt, effective and economical means of dispute resolution is an important element in the orderly growth and encouragement of international trade and investment. Increasingly, ADR(Alternative Dispute Resolution) including arbitration and mediation, instead of litigation in national courts, has become the preferred means of resolving private international commercial disputes. Under the situation, efforts for settlement of trade and investment disputes by ADR have been made between Korea and China through trade and investment agreements and arbitration agreement. Judging from the importance of economic exchange between Korea and Qingdao including Shandong Province, The Korean Commercial Arbitration Board(KCAB) and The Qingdao Arbitration Commission(QAC) should strengthen mutual cooperation to develop efficient methods of resolving commercial disputes arising between the two countries and to assist parties in solving those disputes through conclusion of arbitral agreement. Recently, efforts for conclusion of a Korea-China-Japan Free Trade Agreement(FTA) received strong support at Korea-Japan and Korea-China Summit Meeting held on June and July, 2003 respectively. If the conclusion of FTA among the three countries would be realized, it would promote regional trade and investment, contributing to economic growth in the Northeast Asian region. Under the circumstances, the key arbitral institutions including KCAB and QAC should consider to take the initiative in setting up tentatively called ${\ulcorner}$Joint Arbitration Center for Northeast Asia${\lrcorner}$ for which the CAMCA of NAFTA will be the good example.

• 한국중재학회지:중재연구
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• 제24권4호
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• pp.49-97
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• 2014

This study is about the availability of Chinese internal arbitration institutions by Korean invested companies. Generally, Chinese internal arbitration institutions lack independence from government. However, because parties seeking an arbitration award have ways to get neutrality from internal arbitration institutions that guarantee party autonomy, these Korean companies can use Chinese internal arbitration institutions to resolve disputes in China. Special attention should be given to the following. First, because Korean companies invested in China are legally in the same position as Chinese companies, unless foreign-related factors intervene, when disputes occur with Chinese companies or individuals, the disputes correspond to internal dispute, and when it comes to choosing the arbitration institution, these Korean companies must choose either a Chinese internal arbitration institution or foreign-related arbitration institution. Second, most Chinese internal arbitration institutions still lack independence from government, which can influence the fairness of arbitration in the future. Therefore, Korean companies invested in China should think about alternative ways to get a minimum impartiality in arbitration cases. Third, the parties are allowed to choose arbitration rules freely in Beijing, Xian, Chongqing, Guangzhou, and Hangzhou arbitration commissions. Therefore, in arbitration cases, the parties can get impartiality by choosing arbitrators according to the arbitration rules which they agree on, or by choosing partially modified arbitration rules of those arbitration commissions. Fourth, in order to get an impartial arbitration award from Chinese internal arbitration institutions in China, it is important for Korean lawyers or arbitration experts -- fluent in Chinese -- to be registered in the List of Arbitrators of Chinese internal arbitration institution by way of signing a MOU between the Korean Commercial Arbitration Board, or the Korean Association of Arbitration Studies and arbitration commissions such as those of Beijing, Xian, Chongqing, Guangzhou, and Hangzhou which comparatively do guarantee party autonomy. Fifth, because application of the preservation of property before application of arbitration is not approved in China, in practice, in order to preserve property before application of arbitration, it is best to file another suit in China based on other legal issue (e.g., tort) independent from the contract which an arbitration agreement is applied to. Sixth, in arbitration commissions which allow different agreement regarding arbitration procedures or arbitration rules, it is possible to choose a neutral arbitrator from a third country as a presiding arbitrator via UNCITRAL arbitration rules or ICC arbitration rules. Seventh, in the case of Chinese internal arbitral award, because the court reviews the substantive matters to decide the refusal of compulsory execution, the execution rate could be relatively lower than that of foreign-related cases. Therefore, when Korean companies invested in China use Chinese internal arbitration institution, they should endure low rate of execution. Eighth, considering the operational experiences of public policy on foreign-related arbitration awards so far, in cases of Chinese internal arbitration award, the possibility of cancellation of arbitral award or the possibility to refuse to execute the award due to public policy is thought to be higher than that of foreign arbitral awards. Ninth, even though a treaty on judicial assistance in civil and commercial matters has been signed between Korea and China, and it includes a provision on acknowledgement and enforcement of arbitral award, when trying to resolve disputes through Chinese internal arbitration institution, the treaty would not be a big help to resolve the disputes, because the disputes between Korean companies invested in China and the party in China are not subject to the treaty. Tenth, considering recent tendency of conciliation by the arbitral tribunal in China and the voluntary execution rate of the parties, the system of conciliation by the arbitral tribunal is expected to affect as a positive factor the Korean companies that use Chinese internal arbitration institution. Finally, when using online arbitration, arbitration fees can be reduced, and if the arbitration commissions guaranteeing party autonomy have online arbitration system, the possibility of getting impartial arbitration award through them is higher. Therefore, the use of online arbitration system is recommended.

• 한국중재학회지:중재연구
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• 제17권1호
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• pp.3-32
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• 2007

This age is called the age of global trade, and the World Trade Organization is a forerunner in promoting the global free trade through multilateral negotiations as the global level. On the other hand, regional economic cooperation such as North American Free Trade Agreement(NAFTA) is appearing, saying that promotion by WTO takes too much time. As is known to everybody, Europe is on the way of integrating member states through EU not to mention economic cooperation. Even in Asia such tendency is shown through ASEAN, Korea, China and Japan in Northeast Asia share geographical proximity, many common historical experiences, and similar cultural norms and values although they have disparities in stages of development, trade and economic policies, and financial and legal frameworks. Under the situation, efforts have been made between three countries of Korea, China and Japan for the conclusion of investment agreements including FTA. If the conclusion of the FTA between the three countries would be realized, it would promote regional trade and investment, contributing to economic growth in the Northeast Asian region. The writer in this paper reviewed the settlement of private commercial dispute including investment dispute arising from the FTA and investment agreements. The investment dispute is quite different from an ordinary commercial dispute arising from commercial transactions in view of disputing parties, applicable laws and rules, etc. Therefore it is a problem of vital importance that the parties interested in investment under the FTA as well as the relevant investment agreement should understand and cope with the settlement mechanism of investment disputes arising therefrom. The ICSID Convention provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. All contracting states of the ICSID Convention are required by the Convention to recognize and enforce the ICSID arbitral awards. The New York Convention(formally called "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards") is also applicable for the enforcement of arbitral awards to be rendered under the FTA. As to applicable rules, the UNCITRAL Arbitration Rules may be required for the settlement of investment disputes under the FTA. This Rules has adopted by the internationally recognized arbitral organizations although it was developed primarily for use in ad hoc arbitration. The promotion of arbitral cooperation may be realized through agreements between arbitral institutions. Especially under the NAPTA system, a central common system was established to resolve jointly private commercial disputes arising from such free trades by the initiative of arbitral organizations among the member countries. It is called Commercial Arbitration and Mediation Center for the Americas(CAMCA), which may be a good example for the settlement promotion of the private commercial disputes between Korea and other relevant countries.

• 한국중재학회지:중재연구
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• 제20권2호
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• pp.27-47
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• 2010

It is well recognized that the availability of prompt, effective and economical means of dispute resolution is an important element in the orderly growth and encouragement of international trade and investment. Increasingly, arbitration, instead of litigation in national courts, has become the preferred means of resolving private international commercial disputes. Under the situation, it will be important thing for arbitral institutions to reach an agreement to promote the dispute settlement of the commercial disputes, for which efforts have been made between the Korean Commercial Arbitral Board(KCAB) and principal arbitration institutions of the foreign countries. Since 1973, the KCAB has entered into many arbitration agreements with well-known foreign institutions of arbitration. If the place of arbitration is not so designated by the parties, it, as a general rule, shall be the country of the respondent(s) under the Korea-Japanese Arbitration Agreement. On the other hand, the U.S.-Korean Commercial Arbitration Agreement maintains 'Joint Arbitration Committee which finally decide the place of arbitration. In 1996, the Korea-Austria Agreement of Cooperation was concluded for the prompt and equitable settlement on an amicable basis of commercial disputes. Under this Agreement, arbitral institutions between Korea and Austria agreed to act as an appointing authority in accordance with the UNCITRAL Arbitration Rules. It is also very important for Korea and China including North Korea to cooperate each other for the settlement of the commercial disputes within the Pan Yellow Sea Economic Bloc(PYSEB). The PYSEB is quickly becoming a distinctive and crucial region in the world sharing geographical proximity, many common historical experiences, and similar cultural norms and values although they have disparities in stages of development, trade and economic policies, and financial and legal frameworks. Finally, it should be considered to establish a central common system for settlement promotion of the commercial disputes within the PYSEB through the arbitration agreement. Such a dispute resolution system was already introduced and established within the area of the NAFTA, and it is called the Commercial Arbitration and Mediation Center for the Americas(CAMCA).

• 한국중재학회지:중재연구
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• 제11권1호
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• pp.3-35
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• 2001

$\ulcorner$The South-North Joint Declaration$\lrcorner$ of June 15, 2000 made by President Kim Dae Jung and National Defense Committee Chairman Kim Jong Il will contribute to the activation of economic exchange between south and north Korea. To realize the fundamental spirit of the South-North Joint Declaration, the authorities concerned of south and north Korea have reached an agreement titled $\ulcorner$Agreement on Settlement Procedure of Commercial Disputes$\lrcorner$ last December. In this connection, a speedy and reasonable settlement of commercial disputes arising therefrom is becoming a problem of vital importance between south and north Korea. Also, south and north arbitral institutions have to consider a possible arbitration agreement carefully to solve the disputes systematically under the Agreement, which will serve as an example for similar arrangements and possible harmonization in East-West commercial relations. A variety of dispute settlements including friendly consultations, conciliation and arbitration will be used more frequently within the framework of the bilateral agreements of governmental or non-governmental level which have been concluded in the past between socialist and capitalistic economy countries. There is a growing tendency that East-West trade parties recognize and accept the UNCITRAL Arbitration Rules in their contracts. So it is advisable to use the UNCITRAL Rules in arbitrations of south and north Korea in case that the interested parties fail to agree on applicable rules. Finally it should be noted that pre-arbitral settlement called ‘joint conciliation’ should be reflected in the settlement mechanism of commercial disputes between south and north Korean parties as proved to be successful between the U.S. and China trade in the past.