• Journal of Arbitration Studies
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• v.20 no.2
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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).

• KIPS Transactions on Computer and Communication Systems
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• v.9 no.4
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• pp.89-100
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• 2020

In order to reduce the time and cost used in insurance processing, studies have been actively carried out to apply blockchain smart contract technology to car insurance. However, by using traffic data that is insufficient to prove accidents, existing studies are being exposed to the risk of insurance fraud, such as forgery and overstated damage by malicious insurers. To solve this problem, we propose an accident data-based reliability estimation model by using both various types of data through sensors, RSUs, and IoT devices embedded in automobiles and smart contracts. In particular, the regression model was applied in consideration of the weight estimation according to the type of traffic accident data and the reliability estimation model trained according to various accident situations. The proposed model is expected to effectively reduce fraud and insurance litigation while providing transparency in the insurance process and streamlining it is well.

• International Commerce and Information Review
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• v.14 no.3
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• pp.453-479
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• 2012

The increase in international trade is clearly reflected by litigation and arbitration. Despite the importance of international commercial transaction, until very recently little was known about how the law interacts with actual practice. The CISG obviously plays an important role, but we are concerned with using choice of law to resolve issue that the CISG leaves unresolved. The case law UPICC is now accessible by means of UNILEX, the database on international case law that focus on CISG cases. The courts and arbitration tribunals throughout the world are developing a growing body of international case law on issues not resolved by the CISG, though arising from transactions to which the CISG applies. The application of the CISG is obligatory due to its nature as hard law an international convention. However, UPICC are only restatements and more flexibility, comprehensive instrument than CISG. This article offers to promote the UPICC application from their present status as a mere soft law instrument through analysing UNILEX cases.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.26
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• pp.35-86
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• 2005

International distributorship contract(IDC), as well as international agency contract is a type of contract which is most frequently used in international trade. But one of the main difficulties faced by parties of IDC is the lack of uniform rules for this type of contract. This means that both parties should be careful about each clause of the contract when they draw up it. The ICC prepared model form which incorporates the prevailing practice in international trade, and which aims at protecting and balancing the legitimate interests of both parties. This author examined the several important clauses in this model contract. The purpose of this examination is to help the contracting parties for better understanding and applying them in their actual contracting practice, which based on this model contract. When the supplier and the distributor execute their contract or use ICC Model Contract, they should be careful about the following points: First, some terminologies(like, "territory", "product", "competing products" and "exclusivity") should be clearly defined in their contract. Second, regarding the supplier's functions including "supplying products" and the distributor's responsibility including "undertaking not to compete", and "attaining guaranteed minimum targets", both parties should make clear about each party's right and obligation as well as one party's remedies available when other party makes breach of its obligation. Third, both parties should examine the relationship between the "exclusivity" or "sole" and competition law which is regarded as a mandatory rule in the territory. Forth, when both parties lay down "termination clause" in the contract, they should make clear about the indemnity in case of termination. Fifth, as there is not uniform law for the distributorship contract, it is inevitable to choose any local law as an applicable law in case of litigation. So both parties should keep in mind to insert arbitration clause to avoid the application of the local law. Besides, both parties should consider their individual and specific circumstances and try to reflect them in their contract by Annex I to XI attached to the end of model contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.33
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• pp.191-219
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• 2007

Section 39(5) of Marine Insurance Act 1906 concerns the case where with the privity of the assured, the ship is sent to sea in an unseaworthy state. The underwriters argue that the assured had"blind-eye knowledge" of the particular respect in which the ship was unseaworthy. Blind-eye knowledge requires a conscious reason for blinding the eye. There must be at least a suspicion of a truth about which one do not want to know and which one refuse to investigate. What has caused greater difficulty is the broad provision in s.17 which appears to be unlimited in its scope. The expression "utmost good faith" appears to derive from the idea of uberrimae fidei, words which indeed appear in the sidenote. The concept of uberrima fides does not appear to have derived from civil law and it has been regarded as unnecessary in civilian systems. S.17 raises many questions. But only two of them are critical to the decision of the present appeal-the fraudulent claim question and the litigation question. It is however necessary to discuss them in the context of a consideration of the problematic character of s.17. In the Star Sea Case, for the defendants to succeed in their defence under this part of the case the defendants have to show that claim was made fraudulently. They have failed to obtain a finding of fraud. It is not enough that until part of the way through the trial the owners failed to disclose to the defendants would have wished to see in order to provide them with some, albeit inadequate, evidential support for their alleged defence under s.39(5). The defence under s.17 fails. The Purpose of this work is to analyze the Star Sea Case, and to explore problems of the MIA relating to the judgement of this case.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.67
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• pp.119-142
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• 2015

Many insurers have traditionally incorporated "fraud clauses" into insurance policies, setting out the consequences of making a fraudulent claim. Even in the absence of an express terms, English courts provide insurers with a remedy for a fraudulent claim. However, the law in this area is complex, convoluted and confused. English Law Commission think that the law in this area needs to be reformed for three reasons; (1) the disjunctive between the common law rule and section 17 generates unnecessary disputes and litigation, (2) increasingly, UK commercial law must be justified to an international insurance society, and (3) the rules on fraudulent claims are functioned as a deterrent if they are clear and well-understood. In order for these purposes, English Law Commission recommends a statutory regime to the effect that, when an insured commits fraud in relation to a claim, the insurer should (1) have no liability to pay the fraudulent claim and be able to recover any sums already paid in respect to the claim, and (2) have the option to treat the contract as having been terminated with from the time of the fraudulent act and, if chosen the option, be entitled to refuse all claims arising after the fraud, but (3) remain liable for legitimate losses before the fraudulent act. LC is not recommending a complete restatement of the law on insurance fraud generally. For example, LC does not seek to define fraud, instead, recommends the introduction of targeted provisions to confirm the remedies available to an insurer who discovers a fraud by a policyholder.

• Journal of Korean Society of Archives and Records Management
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• v.16 no.4
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• pp.7-30
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• 2016

The purpose of this study is to suggest the directions for record and information management (RIM) strategies for Korean companies as preparation for e-Discovery risks. It begins with the articulation key concepts and some RIM issues of e-Discovery, which is governed by the U.S. Federal Rules of Civil Procedures. It analyzes three lawsuit cases for which Korean companies were sued by North American companies in order to determine the main reasons behind the defensible disposition failures. Based on the analyses, it suggests the RIM strategic policies for preparing the e-Discovery, including the development of inventories for documents and ESI in their possession, custody, or control; ensuring legal hold programs in good faith; and making defensible retention policies.

• Journal of Arbitration Studies
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• v.9 no.1
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• pp.161-182
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• 1999

The purpose of this paper is to examine the applicability of the UNIDROIT Principle in international commercial arbitration. For this purpose, I have studies the basic two characters of this Principles: One is of general rule(principle); Another is of international and commercial character. According to CISG, questions concerning matters governed by the CISG which are not expressly settled in it are to be settled in conformity with the general principles, so this Principles will cover many questions which are not expressly settled in the applicable law, by gap-filing, analogy or usage. In the preamble of this Principles, there are five cases in which the Principles shall be applied or may be applied. If the disputes are submitted to the any national court, the application of this Principles would be restricted because of the mandatory rules of national, international or supranational origin. But the disputes are submitted to arbitration, the arbitrator would have more discretional powers to apply the Principles than the judge. The reason is that in the arbitration, the arbitrators do not bear obligation to act in conformity with the law applicable by virtue of the rules of rules of private international law. I also examined the applicability of the Principles in cases which there are no mentions in preamble: When the international arbitrators choose the Principles; When the arbitrators decide ex aequo et bono; When the both parties have not chosen the governing law; When there are gaps in domestic law chosen by the parties; When the applicable domestic law is insufficient. In all these cases, the Principles may be applied more easily and conveniently in arbitration than in litigation. Thus to envisage the application of this Principle in international arbitration, first both parties in international commercial contracts should incorporate this Principle as a governing law in their contracts, and second, the arbitrators should try to apply this Principles in their arbitrations by choice, analogy, general principles or usage.

• Journal of Arbitration Studies
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• v.18 no.3
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• pp.23-50
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• 2008

In a global economy where, private parties increasingly favour arbitration over litigation, many foreigners are unfortunately reluctant to arbitration with China's parties because the China national courts do not scrutinize the merits when deciding whether to recognize and enforce foreign awards. As a result, the finality of arbitral awards hangs in uncertainty. Overseas concern is that China's courts may abuse "Public Policy" grounds provided for in the New York Convention to set aside or refuse to enforce foreign awards. The purpose of this article is to examine the distrust to enforcement of arbitral awards whether that is just an assumption. In spite of the modernize and internationalize her international arbitration system and many reforms provided in the related law and rules, the most vexing leftover issues are caused of the lack of "rule of law" in China. This situation imply the risk of pervert 'Public Policy' as the ground for refusing enforcement of arbitral awards. Some cases reflect the fear. But it is unclear whether those cases caused from the lack of "rule of law" in China. Same uncertainty present between Hon Kong-China under th one country-two legal system after the return of Hong Kong to China on 1 July 1997. While China is striving to improve its enforcement mechanism in regard to the enforcement of arbitral awards, it can only be expect following the establishment of rule of law in the future.

• Journal of Arbitration Studies
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• v.26 no.4
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• pp.83-109
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• 2016

Recently, China has brought many political, economical, and ideological changes in order to complete the "socialistic market economy." In terms of legal system, they make much effort to seek compatibility and stability of law and order. China recognizes that the breakdown of corruption, which is rampant in society, is an essential short-cut for national development. To realize anti-corruption reformation, it strengthens the supervision of relatives and close officials of high-ranking government officials. Recently, China has suffered from expanded trade disputes internationally and has also experienced severe management-labor conflicts domestically due to economic recession. From 2012 onward, civil lawsuit and other litigations have increased sharply. Also, they face severe conflicts in the land system. It is expected that many disputes arise due to speculation on rural housing. Meanwhile, Mongolia expands the size of trade with Korea in mutual cooperation since their diplomatic relation in 1990 by entering more than 20 treaties and agreements. As Mongolia has rich natural resources and Korea is equipped with advanced science and technology, the two countries have opportunities to develop mutually beneficial cooperative relations. Recently, the arbitration system has attracted attention instead of litigation as a means of dispute settlement in line with the expansion of trade between Korea and Mongolia. This study would be helpful to figure out desirable methods for dispute settlements in case of trade disputes among Korean companies that would advance into China and Mongolia.