• 무역상무연구
• /
• 제35권
• /
• pp.101-124
• /
• 2007

This paper purposes to examine the setting aside and the refusal of enforcement of arbitral awards and their implications for practitioners. The aim of challenging an award before a national court at the seat, or place, of arbitration is to have it modified in some way by the relevant court, or more usually, to have that court declare that the award is to be disregarded (i.e. "annulled" or "set aside") in whole or in part. If an award is set aside or annulled by the relevant court, it will usually be treated as invalid and accordingly unenforceable, not only by the courts of the seat of arbitration but also by national courts elsewhere. This is because, under both the 1958 New York Convention and the UNCITRAL Model Law, the competent court may refuse to grant recognition and enforcement of an award that has been "set aside" by a court of the seat of arbitration. The New York Convention set out various grounds for refusal of recognition and enforcement of an arbitration award. The provisions of the Model Law governing recognition, enforcement or setting-aside of awards are almost identical to those set out in the Convention. Especially, the New York Convention and the Model Law state that an arbitral award may be refused and set aside if a national court of the place of arbitration finds that the award is in conflict with the public policy of its own country. Each state has its own concept of what is required by its "public policy". It is possible to envisage, for example, a dispute over the division of gaming profits from a casino. In many states, the underlying transaction that led to the award would be regarded as a normal commercial transaction and the award would be regarded as valid. Indeed, it is a consistent theme to be found in the legislation and judical decision of many countries. If a workable definition of "international public policy" could be found, it would provide an effective way of preventing an award in an international arbitration from being set aside and refusal for purely domestic policy consideration.

• 한국중재학회지:중재연구
• /
• 제25권2호
• /
• pp.49-70
• /
• 2015

There are three categories of arbitration - domestic arbitration, foreign-related arbitration and foreign arbitration. Although the meaning of foreign arbitration and International Commercial Arbitration is different, they are used to mean the same in practice. In fact, there is significant controversy about the meaning of non-domestic arbitration because it is too difficult to distinguish between non-domestic arbitration and domestic arbitration. In the Chinese arbitration system, there are two main laws,Chinese Arbitration Law and Chinese Civil Procedure Law. Chinese Arbitration Law regulates the internal matters, while Chinese Civil Procedure Law regulates the external legal regulations. After the 2012 revised Chinese Civil Procedure Law, a number of laws and regulations have been revised, and almost every Arbitrations Rules have been revised, and will be in effect in 2015. Depending on the nationality of arbitration, the applicable laws will be different. The nationality of arbitration is so important that this paper will pay more attention to it. Although the case in China has no precedent effect, it is so important to the parties that this paper will address it. This paper will analyze the process and the cases of the recognition and enforcement of the award system in China.

• 무역상무연구
• /
• 제27권
• /
• pp.215-232
• /
• 2005

China had revised Foreign Trade Law in order to fulfill its WTO commitments and duties, and fully exercise its rights and benefits as a WTO member. The main contents of the revised Foreign Trade Law as followed. For the first time, individuals are allowed to conduct foreign trade. Intellectual property is an important component of foreign trade, and protecting intellectual property rights is a key issue. A chapter on Intellectual property protection is one of the major additions to the Foreign Trade Law. New sections have also been added to allow and provide guidance for conducting investigations and seeking relief. Finally, the new law beefs up and clarifies enforcement procedures. It regulates the setting up of early warning and emergency systems and a foreign trade statistics system.

• 해양안보
• /
• 제3권1호
• /
• pp.1-44
• /
• 2021

중국의 새로운 해양정책법(Maritime Policy Law: MPL)은 중국해안경비대 등의 중국 해양경찰 기관들의 임무를 규제하고, 중국의 주권, 안보, 권리, 이해관계를 보호한다고 주장한다. [하지만] 중국이 본토 주위 및 남중국해에서 넓은 해역에 대한 권리를 주장하고 있다는 점에서, MPL은 훨씬 광범위하게 적용될 수 있다. 중국이 제기하는 대부분의 해양 주장이 국제법에 부합하지 않는다는 점을 고려하면, 이렇게 해양법 집행 관할권을 광범위하게 적용하는 것은 문제의 소지가 많다. MPL이 분쟁해역 또는 공해에서 외국선적 선박에 대한 관할권을 주장한다면, 이는 국제법 위반이다. 무력 사용에 관한 MPL의 많은 규정 역시, 해양법 집행 관할권의 사용에 관한 국제 규칙 및 기준을 위반한 것이며, 모든 국가의 영토 온전성이나 정치적 독립성에 반하는 위협이나 무력사용을 금하는 유엔헌장에도 위배된다. 중국은 MPL을 남중국해와 동중국해에서 불법적인 영토 및 해양 주장을 제기하기 위한 구실로 사용할 수 있으며, 다른 연안국의 배타적경제수역 내 자원 권리 행사를 방해하기 위한 구실로도 사용할 수 있다.

• 한국기술혁신학회:학술대회논문집
• /
• 한국기술혁신학회 2014년도 추계 학술대회 논문집
• /
• pp.189-203
• /
• 2014

Silicon Valley's legal foundation in recent years has surfaced on the radar of policy planners who model Silicon Valley's ICT industry. Precisely, the prohibition of covenants not to compete is linked to firm to firm knowledge spillovers by way of mobile workers positioned as nodes in a system of innovation. Meanwhile, traditional frameworks support enforcement of covenants not to compete as a way to encourage R&D into the worker and to prevent the worker's tacit knowledge and know-how from fleeing. This article examines the ICT industry in Silicon Valley and Route 128 to argue that California's unique law is a key factor in the success of Silicon Valley firms. Theoretically, we reconcile the ostensible strife between enforcement and prohibition frameworks by presenting an industrial approach. We contend that selective enforcement by industry can maximize the policy tools of discorded planners.

• 한국중재학회지:중재연구
• /
• 제25권3호
• /
• pp.3-31
• /
• 2015

This paper sets out a multi-dimensional approach that parties drafting a "hybrid clause" for their arbitration agreement can adopt, for purposes of maximizing enforceability, taking into account the multi-jurisdictional interplay between the seat Court, the governing law and the enforcement Court(s), as well as mandatory rules that can be present in the lex arbitrii, the governing law, and/or the law of the enforcement for a. This paper draws on both the co-authors' practice experience, as well as first principles of party autonomy in light of mandatory rules, based predominantly on the scholarship of Briggs and Nygh.

• 한국임상약학회지
• /
• 제23권1호
• /
• pp.71-76
• /
• 2013

Background (Purpose): The objective of this study was to investigate regulations on pharmacist and other healthcare professional license examination in Korea. Specific aim was focused on the implementation of new regulatory system governing pharmacist license examination particularly on naming of the subjects, method of the examination, and discrimination of pass or fail. Method: Laws and regulations of Korea on the examination system were retrieved from sources posted in Ministry of Government Legislation. Results: Two major regulatory differences were found between pharmacist and other healthcare professionals license examination systems. Firstly, the regulation on pharmacist license examination was ruled by the enforcement ordinance of parent law (Pharmacy Law) while it was ruled by enforcement regulation of parent law (Medical Law). Secondly, minimum grade requirement for pharmacist and other healthcare professionals was differently set up: 40% for each single subject in pharmacist and average of 40% for each group of several subjects in other healthcare professionals. Conclusion: Since pharmacist profession has drastically changed from drug-makers to drug-users during the recent decades, it is desirable to have the regulations on pharmacist license examination system amended in harmony with other laws and regulations of Korea and other major developed countries. Two-step examination for pharmacist license appears worthwhile to implement for balancing the two key functions of the pharmacist being drug-makers and drug-users.

• 한국중재학회지:중재연구
• /
• 제15권2호
• /
• pp.197-224
• /
• 2005

The purpose of this paper is to make research on the party's autonomy principle and the applicable law to the arbitration agreement, the applicable law to the validity of the arbitration agreement, the applicable law to the arbitrability of the arbitration agreement, the applicable law to the contracting ability of the arbitration agreement, and the applicable law to the method of the arbitration agreement. If no choice of law is made by the parties with respect to the arbitration agreement-which is the stand situation-the validity of the agreement may have to decided under its proper law, or under the law of the place of arbitration, or the law of the place of enforcement. If the subject matter is not arbitrable, the arbitration agreement remains without effect. The rules determining arbitrability may differ from one country to another, from one legal system to another. If a party is lacking capacity to enter into an arbitration agreement, the recognition and enforcement of the arbitral award may be refused at the request of the party against whom it is invoked. This principle is laid down in the New Yark Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The validity of an arbitration agreement sometimes also depends on the form in which it is made. Article II. 2 of the New York Convention states that the term 'agreement in writing' shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties of contained in exchange of letters or telegrams.

• 한국중재학회지:중재연구
• /
• 제24권3호
• /
• pp.79-103
• /
• 2014

In light of increasing international trade in recent years, international arbitration has been more widely used by international parties to resolve their conflicts. Thus, the need for reliable and effective enforcement of foreign arbitral awards has amplified. To facilitate the enforcement of foreign arbitral awards, the New York Convention lists grounds for the refusal of recognition and enforcement in Article V. This paper examines prominent U.S. case law on Article V(1)(b), which is put in place to ensure that arbitration proceedings are conducted properly in accordance with due process requirements: proper notice to parties and an opportunity to a fundamentally fair hearing. This examination of case law conveys that U.S. courts refuse to enforce foreign arbitral awards pursuant to Article V(1)(b) only when due process rights of the party against whom the award is to be enforced are clearly violated by the arbitral tribunal. This paper also reveals that U.S. courts mainly defer to arbitral tribunals' discretion, especially as to evidentiary matters. Therefore, it is predicted that U.S. courts will likely continue to narrowly construe the grounds in Article V to facilitate reliable and effective enforcement of foreign arbitral awards in the U.S.

• 한국중재학회지:중재연구
• /
• 제25권2호
• /
• pp.19-47
• /
• 2015

International arbitration is an increasingly popular means of alternative dispute resolution for cross-border commercial transactions. The primary advantage of international arbitration over court litigation is enforceability. An international arbitration award is enforceable in most countries in the world. Especially, statistics indicate of ASEAN such as Malaysia and Singapore that the vast majority of defeated companies comply with the terms of international arbitral awards against them or settle soon after the award is rendered. Unlike Malaysia and Singapore, in Indonesia, there are several grounds for refusal of enforcement of an award including where both the nature of the dispute and the agreement to arbitrate do not meet the requirements set out in the Arbitration Law. Because Indonesia does not acknowledge decisions of foreign courts, theoretically they could enforce an international arbitral award which was set aside by the court in the seat of arbitration. This paper introduces the legal system and cases of recognition and enforcement of foreign arbitration awards in ASEAN, especially Malaysia, Singapore, and Indonesia. Secondly, by comparing their law and cases, the paper emphasized the international suitability and global fitness in involved in recognition and enforcement of foreign arbitration awards.