• Journal of Arbitration Studies
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• v.31 no.3
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• pp.25-42
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• 2021

Arbitration is an alternative dispute resolution mechanism based on the parties' agreement to resolve any disputes parties may have by arbitration rather than litigation in court. Parties' consent to arbitrate, which must be manifest in the parties' arbitration clause or agreement, is the foundation for arbitration; thus, the language of an arbitration agreement is often of utmost importance in determining the intent of the parties regarding many aspects of arbitration proceedings, such as, the scope of arbitral proceedings, arbitral seat, and authority of arbitral tribunals, among others. Recently, the U.S. Supreme Court held in Lamps Plus, Inc. v. Varela (2019) that ambiguity in arbitration agreement as to availability of class arbitration should be resolved in favor of individual arbitration, and therefore, class arbitration would be precluded. Such holding was met with criticism by four separate dissenting opinions, in which the dissenting Justices have disagreed with the majority's interpretation of the arbitration agreement at issue, as well as, its rejection of application of state law in resolving contractual ambiguity. This article analyzes the Supreme Court's decision and reviews the Court's approach in construction of the arbitration agreement. Nevertheless, because the Supreme Court declined to provide clear guidelines as to precisely what contractual basis is required to permit class arbitration, either silence or ambiguity in arbitration agreements will be resolved by disallowing class arbitration.

• Journal of Arbitration Studies
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• v.23 no.1
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• pp.133-152
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• 2013

Recently, the United Nations Commission on International Trade Law (UNCITRAL) has made progress toward resolving low value, high volume disputes in international e-commerce. At the Working Group's 26th session, two draft procedural rules were addressed. The first discussed the draft of Article 9, entitled "Decision by a neutral party." This is based on the suggestion in 26th session to have a "two track" system of ODR, one including negotiation, facilitated settlement, and arbitration phrases, and the other not including an arbitration phase. The second draft procedural rule, draft Article 10, regards the language of proceedings. In most cases of international e-commerce, the decision of language of an ODR proceeding is a matter of importance, for the language parties could differ from each other. This paper examines several implications of UNCITRAL for Korea, which has unstable ODR system.

• Journal of Arbitration Studies
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• v.23 no.4
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• pp.55-76
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• 2013

This study aims to analyze the main features of Mongolian arbitration system compared with Korean Arbitration Law which was revised under the UNCITRAL Arbitration Model Law. On the basis of this comparative study, certain differences are suggested: First, the environment of Mongolian arbitration is still insufficient in terms of its operation and usage at the international level. Second, the Mongol National Arbitration Court has established Ad-hoc Arbitration Rules and has promoted Ad-hoc Arbitration although it is an institutional arbitration organization. Third, the arbitration objects are defined as the types of tangible and intangible assets in Mongolia which are different from those of the Korean Arbitration Law. Accordingly, court and officer disputes, family disputes, labor-management relations, and criminal matters are covered by the arbitration objects. Fourth, Mongol Arbitration Law specifies the following persons disqualified for arbitrator appointment: the member of the Constitutional Court, judge, procurator, inquiry officer, investigator, court decision enforcement officer, attorney, or notary who has previously rendered legal service to any party of the disputes, and any officials who are prohibited by laws to be engaged in positions above the scope of their duties. Fifth, the arbitrator selection and appointment criteria should be documented, and the arbitrator should have the ability to resolve the disputes independently and fairly and achieve concord from both parties. Sixth, if there is no agreement between the parties, the arbitration language should be Mongolian, and the arbitral tribunal has no power to decide on it. Seventh, despite the agreement for a documentary hearing between the parties, there should be provided opportunities for an oral hearing if either of the parties requires it. Eighth, if the parties do not understand the language of the arbitration, the parties can directly ask the translation service. They should also keep secrets in the process of arbitration. Ninth, the cancellation of arbitral award is allowed by the application of the parties, not by the authority of the court. Except for the nine differences above, the Mongolian arbitration system is similar to that of the Korean Arbitration Law. This paper serves to contribute to the furtherance in trade relationship between Mongolia and Korea after the rapid and efficient resolution of disputes.

• Journal of Arbitration Studies
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• v.15 no.1
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• pp.207-228
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• 2005

When closing an international contract, both contract parties endeavor to convey their intentions from the stage of negotiation to the moment of signing the contract. Of the many problems presently related to contract language, the first one to consider is which contract party will run the risk of the language deficiencies occurring as a result of the misunderstanding and misinterpretation between different languages. The second problem to consider is whether the interpretation and translation of the contract language is needed and, if so, which party is going to bear the expenses and assume responsibility of the misinterpretation in the translation of, the contract language. The third problem is related to the obligation of explaining to both contract parties the contents and details of the international contract written in different languages. The fourth issue is which language of both contract parties becomes the standard contract language in the procedure of arbitration. The fifth, but not the last problem, is how to solve the language defects in interpreting and translating the contract languages. These five problems can be easily solved by the approval of the contract parties in scrutinizing and selecting the contract languages. However, this research mainly focuses on which effects of the contract language and as how to define and select the contract language.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.63-93
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• 2012

The purpose of this paper is to examine the consideration factors, from both parties' perspective, to select the most appropriate arbitral institution when they inset an arbitration clause in their contract. Accordingly, the author analyzed the advantages of institutional arbitration compared to non-institutional arbitration. The typical advantages of institutional arbitration would include: $\bullet$ Benefits of using an established set of rules $\bullet$ Services provided by the institution $\bullet$ Low risks of obstruction $\bullet$ Enhancement of the possibilities of enforcement $\bullet$ Forecast of the estimated cost $\bullet$ Specially useful for existing disputes Next, this author examined the consideration factors when selecting the institution in respect of the following factors: $\bullet$ Institution's arbitration rules $\bullet$ Institution's rule regarding the appointment of arbitrators $\bullet$ Ability of administrators of each institution $\bullet$ Reputation of the arbitral institution and the likability of enforceability of its award $\bullet$ Cost $\bullet$ Choice of the arbitral institution in relation to the choice of place of arbitration Finally, this author reviewed Model Arbitration Clause of major international or local Institutions, including ICC, AAA, LCIA, KCAB, CIETAC, ICSID and WIPO. Further examination was given to the selection of the numbers of the arbitral tribunal, the seat of arbitration and the language of arbitration, according to the designated articles in each institution's arbitration rules.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.25-44
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• 2009

The purpose of this parer is to examine the specifies of Institutional Arbitration and Ad Hoc Arbitration. The court prefers the institutional award in the enforcement rather than the award issued under the name of arbitrators alone. For example, the ICC Court of Arbitration scrutinizes awards for completeness, adherence to the ICC Rules and internal consistency, which since the court assurance for enforcement. In terms of arbitration costs, for which the ad hoc arbitration is considered to have comparative advantages, the institutional arbitration may not be more expensive than ad hoc arbitration, as in most commercial case, the administrative fees are insignificant. This paper suggests the standard or model arbitration clauses in institutional and ad hoc arbitrations. These Clauses contains the minimum elements necessary to render the arbitration agreement enforceable and effective. So both parties may add the specific contents such as the number of arbitrator, the place of arbitration and the language. Especially, in Ad Hoc Arbitration without designated set of rules, more clean clause for appointing arbitrators will be needed.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.39
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• pp.179-220
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• 2008

The notion of the 'court' is most unique to ICC arbitration. This paper focuses on what the court is and how it works and what the role and the duties of the Court under the ICC arbitration imply for the KCAB International Arbitration Rules. The Court is an administrative body that administers arbitrations taking place under the ICC Rules of Arbitration. The Court consists of 126 members from 88 countries around the world. Court members participate in decision-making process by way of attending the committee sessions and plenary sessions. At the Court's committee sessions, the Court fixes advance on costs; reviews the prima facie existence of arbitration agreements; fixes the place and language of arbitration, and the number of arbitrator(s); confirms and approves arbitrators; scrutinizes draft awards, determines the costs of arbitration; decides on extensions related to Terms of Reference, draft awards and correction and interpretation of the awards. At the Court's plenary sessions, the Court performs only two responsibilities: the challenge or replacement of arbitrators or the scrutiny of draft awards. The Court is required to scrutinize draft awards involving states or state entities, drafts with huge amounts in dispute or complex technical or legal questions, and as well as draft awards to which a dissenting opinion has been attached. Turning to the KCAB International Arbitration Rules, Article 1(3) provides that the KCAB shall establish an International Arbitration Committee. Further, it is provided that the KCAB shall consult with the said Committee with respect to challenge and replacement/removal of arbitrators pursuant to Article 1(3). The notion and role of the International Arbitration Committee was originally adapted from the Court to ICC arbitration, but its role was quite reduced in the process of enactment of its Rules. Accordingly, I examined the detailed roles of the Court to ICC arbitration in this paper and hereby suggest that the KCAB International Arbitration Rules shall be amended in the following ways: The Secretariat of the KCAB shall: fix advance on costs at the first stage and the costs of arbitration at the final stage of the proceedings; determine the number of arbitrators; review the prima facie of existence of arbitration agreement; confirm arbitrators; decide extensions related to time table, draft awards and correction and interpretation of the awards. I, also, suggest that the arbitral tribunals shall fix the place of arbitration and the language of arbitration and make a final decision on the validity of arbitration agreement. With regard to the International Arbitration Committee, it is desirable for its Rules to empower the Committee to recommend any prospective arbitrator and to review and decide challenge and replacement/removal of arbitrators.

• Journal of Arbitration Studies
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• v.30 no.2
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• pp.23-42
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• 2020

The purpose of this study is to analyze the characteristics of Vietnam's arbitration system and to present measures that companies can utilize in practice. This research considers KCAB International Arbitration Rules, focusing on amendments to the Decree on Vietnam Commercial Arbitration Act and amendments to the VIAC Arbitration Rules. To sum up some features, the decree on the Commercial Arbitration Act simplified the registration procedures for arbitration centers and their branches and made the publication of court decisions and the recognition of the approval and execution of foreign arbitration courts, thereby enhancing transparency. First of all, the decree on the Commercial Arbitration Act simplified registration procedures for arbitration centers and their branches. In addition, the court strengthened transparency by officially announcing court judgments, recognition, and decisions. Next, there are some points to note in the arbitration rules of the VIAC. First of all, the rules of expedited procedure lack clarity. Next, parties should make a separate document for counterclaim and submit it with a statement of defense. In addition, the arbitral language may choose multiple languages by the Arbitral Tribunal unless the parties agree. Therefore, companies need to take a closer look at their understanding of the international arbitration system, which is mainly used in international disputes, and the characteristics of the Vietnamese arbitration system.

• Journal of Arbitration Studies
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• v.24 no.2
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• pp.183-197
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• 2014

1. This study focuses on recent developments of trade transaction between Korea and China. The volume of trade is most rapidly increasing. There have been many items considered to ensure the proper, impartial, and rapid settlement of disputes in private laws by international arbitration. The article contains recent tendencies and proceedings of cases including place of arbitration, language, and so on. 2. The contract made between parties has led to some interpretational, legal questions. Interpretational questions rise mainly from differences of legal systems and legal questions on applying law. The characteristic features of the contract have different meanings, so some articles of the contract can be construed unlawful as a result. 3. As regards the Arbitration Act of Korea, Article 10, the Arbitration Agreement and Interim Measures by Court stipulate the following: A party to an arbitration agreement may request from a court art interim a measure of protection before or during arbitral proceedings. This article examines the application of Article 10 of the Arbitration Act of Korea.

• Journal of Arbitration Studies
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• v.15 no.2
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• pp.225-261
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• 2005

Under Article IV of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), in order to obtain the recognition and enforcement of a foreign arbitral award, a party applying for recognition and enforcement of a foreign arbitral award shall supply (a) the duly authenticated original award or a duly certified copy thereof and (b) the original arbitration agreement or a duly certified copy thereof. In addition, if the arbitral award or arbitration agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language, and the translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. In a case where a Vietnamese company which had obtained a favorable arbitral award in Vietnam applied for recognition and enforcement of a Vietnamese arbitral award before a Korean court, the recent Korean Supreme Court Judgment (Docket No. 2004 Da 20180. 'Judgment') rendered on December 12, 2004 has alleviated the document requirements as follows : The Judgment held that (i) the party applying for recognition andenforcement of a foreign arbitral award does not have to strictly comply with the document requirements when the other party does not dispute the existence and the content of the arbitral award and the arbitration agreement and that (ii) in case the translation submitted to the court does not satisfy the requirement of Article 4, the court does not have to dismiss the case on the ground that the party applying for recognition and enforcement of a foreign arbitral award has failed to comply with the translation requirement under Article 4, and instead may supplement the documents by obtaining an accurate Korean translation from an expert translator at the expense of the party applying for recognition and enforcement of the foreign arbitral award. In this regard, the author fully supports the view of the Judgment. Finally, the Judgment held that, even though the existence of a written arbitration agreement was not disputed at the arbitration, there was no written arbitration agreement between the plaintiff and the defendant and wenton to repeal the judgment of the second instance which admitted the existence of a written arbitration agreement between the parties. In this regard, the author does not share the view of the Judgment. The author believes that considering the trend of alleviating the formality requirement of arbitration agreements under Article 2 of the New York Convention, the Supreme Court could have concluded that there was a written arbitration agreement because the defendant participated in thearbitration proceedings in Vietnam without disputing the formality requirement of the arbitration agreement. Or the Supreme Court should have taken the view that the defendant was no longer permitted to dispute the formality requirement of the arbitration agreement because otherwise it would be clearly against the doctrine of estoppel.