• 제목/요약/키워드: Litigation

검색결과 282건 처리시간 0.03초

Construction Cost Forensics: How Best To Protect Your Company And Avoid Costly Problems

  • Opfer, Neil
    • 국제학술발표논문집
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    • The 9th International Conference on Construction Engineering and Project Management
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    • pp.1240-1240
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    • 2022
  • Construction projects are fraught with risks from cost or other overruns to accidents along with other issues. This is true whether the relevant organization is an owner, general contractor, CM, specialty-trade contractor, or other entity. When cost issues or other issues confront arise, how should an organization proceed whether attempting to gain additional compensation in terms of cost/other damages or protecting the same against such claims if they do not appear to be warranted? Enter construction cost forensics. This presentation will focus on strategies/techniques with construction cost forensics in these areas in order to be successful. Covered techniques include those to develop and analyze claims including fundamental construction cost analysis techniques. When an unexpected event disrupts a construction project, using sound analytical methods to identify the cause and quantify the extent of the issue will be important for negotiating a fair result or for obtaining a successful outcome in arbitration or litigation. Key examples of uncovering issues via construction cost forensics will be covered in this presentation.

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Recent Debates in Attorney-Client related Privilege and Confidentiality in Korea and Its Implications to International Arbitration

  • Joongi Kim
    • 한국중재학회지:중재연구
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    • 제33권3호
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    • pp.3-30
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    • 2023
  • This article provides an overview of the state of attorney-client related privilege and confidentiality in Korea. It reviews the statutory framework, and how Korean courts have analyzed the privilege and confidentiality related to attorneys and their clients. It then examines the legislative initiatives Korea is currently debating with regard to adopting a more common law-style attorney-client privilege (ACP). If adopted, the new legislation will mark a significant milestone in providing guidance on how communications between attorney and client will be treated. Its impact in the context of international arbitration practice and law related to Korea is explored.

행정사건에 대한 ADR의 적용에 관한 법이론적 고찰 (An Legal-doctrine Investigation into the Application of ADR to Administrative Cases)

  • 이용우
    • 한국중재학회지:중재연구
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    • 제13권2호
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    • pp.459-488
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    • 2004
  • General interest in the out-of-court dispute resolution system are mounting in Korea, and the spread of ADR(alternative dispute resolution) is the worldwide trend. In addition, it was confirmed that the resolution of disputes by ADR such as the decision based on arbitration made by the Prime Ministerial Administrative Decision Committee is no longer in exclusive possession of the civil case. The activation of ADR could lead to the smooth agreement between parties by getting away from the once-for-all mode of decision such as the dismissal of the application or the cancellation of disposal and the like in relation to administrative cases for the years. In consequence, it is anticipated that the administrative litigation that applicants have filed by not responding to the administrative decision would greatly reduce in the future. But, it would be urgent to provide for the legal ground of the ADR system through the revision of related laws to take root in our society because ADR has no legal binding power relating to the administrative case due to the absence of its legal grounds. The fundamental reason for having hesitated to introduce ADR in relation to the administrative case for the years is the protective interest of the third party as well as the public interest that would follow in case the agreement on the dispute resolution between parties brings the dispute to a termination in the domain of the public law. The disputes related to the contract based on the public law and the like that take on a judicial character as the administrative act have been settled within the province of ADR by applying the current laws such as the Civil Arbitration Law, Mediation Law, but their application to the administrative act of the administrative agency that takes on a character of the public law has been hesitated. But as discussed earlier, there are laws and regulations that has the obscure distinction between public and private laws. But there is no significant advantage in relation to the distinction between public and private laws. To supplement and cure these defects it is necessary to include the institutional arrangement for protection of the rights and benefits of the third party, for example the provision of the imposition of the binding power on the result of ADR between parties, in enacting its related law. It can be said that the right reorganization of the out-of-court dispute resolution system in relation to the administrative case corresponds with the ideology of public administration for cooperaton in the Administrative Law. It is high time to discuss within what realm the out-of-court dispute resolution system, alternative dispute resolution system, can be accepted and what binding power is imposed on its result, not whether it is entirely introduced into the administrative case. It is thought that the current Civil Mediation Law or Arbitration Law provides the possibility of applying arbitration or mediation only to the civil case, thereby opening the possibility of arbitration in the field of the intellectual property right law. For instance, the act of the state is not required in establishing the rights related to the secret of business or copyrights. Nevertheless, the disputes arising from or in connection with the intellectual property rights law is seen as the administrative case, and they are excluded from the object of arbitration or mediation, which is thought to be improper. This is not an argument for unconditionally importing ADR into the resolution of administrative cases. Most of the Korean people are aware that the administrative litigation system is of paramount importance as the legal relief for administrative cases. Seeing that there is an independent administrative decision system based on the Administrative Decision Law other than administrative litigation in relation to administrative cases, the first and foremost task is the necessity for the shift in thinking of people, followed by consideration of the plan for relief of the rights through the improvement of the administrative decision system. Then, it is necessary to formulate the plan for the formal introduction and activation of ADR. In this process, energetic efforts should be devoted to introducing diverse forms of ADR procedures such as settlement conference, case evaluation, mini-trial, summary jury trial, early neutral evaluation adopted in the US as the method of dispute resolution other than compromise, conciliation, arbitration and mediation

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멀티도어코트하우스제도: 기원, 확장과 사례분석 (The Multi-door Courthouse: Origin, Extension, and Case Studies)

  • 정용균
    • 한국중재학회지:중재연구
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    • 제28권2호
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    • pp.3-43
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    • 2018
  • The emergence of a multi-door courthouse is related with a couple of reasons as follows: First, a multi-door courthouse was originally initiated by the United States government that increasingly became impatient with the pace and cost of protracted litigation clogging the courts. Second, dockets of courts are overcrowded with legal suits, making it difficult for judges to handle those legal suits in time and causing delays in responding to citizens' complaints. Third, litigation is not suitable for the disputant that has an ongoing relationship with the other party. In this case, even if winning is achieved in the short run, it may not be all that was hoped for in the long run. Fourth, international organizations such as the World Bank, UNDP, and Asia Development Bank urge to provide an increased access to women, residents, and the poor in local communities. The generic model of a multi-door courthouse consists of three stages: The first stage includes a center offering intake services, along with an array of dispute resolution services under one roof. At the second stage, the screening unit at the center would diagnose citizen disputes, then refer the disputants to the appropriate door for handling the case. At the third stage, the multi-door courthouse provides diverse kinds of dispute resolution programs such as mediation, arbitration, mediation-arbitration (med-arb), litigation, and early neutral evaluation. This study suggests the extended model of multi-door courthouse comprised of five layers: intake process, diagnosis and door-selection process, neutral-selection process, implementation process of dispute resolution, and process of training and education. One of the major characteristics of extended multi-door courthouse model is the detailed specification of individual department corresponding to each process within a multi-door courthouse. The intake department takes care of the intake process. The screening department plays the role of screening disputes, diagnosing the nature of disputes, and determining a suitable door to handle disputes. The human resources department manages experts through the construction and management of the data base of mediators, arbitrators, and judges. The administration bureau manages the implementation of each process of dispute resolution. The education and training department builds long-term planning to procure neutrals and experts dealing with various kinds of disputes within a multi-door courthouse. For this purpose, it is necessary to establish networks among courts, law schools, and associations of scholars in order to facilitate the supply of manpower in ADR neutrals, as well as judges in the long run. This study also provides six case studies of multi-door courthouses across continents in order to grasp the worldwide picture and wide spread phenomena of multi-door courthouse. For this purpose, the United States and Latin American countries including Argentina and Brazil, Middle Eastern countries, and Southeast Asian countries (such as Malaysia and Myanmar), Australia, and Nigeria were chosen. It was found that three kinds of patterns are discernible during the evolution of a multi-door courthouse model. First, the federal courts of the United States, land and environment court in Australia, and Lagos multi-door courthouse in Nigeria may maintain the prototype of a multi-door courthouse model. Second, the judicial systems in Latin American countries tend to show heterogenous patterns in terms of the adaptation of a multi-door courthouse model to their own environments. Some court systems of Latin American countries including those of Argentina and Brazil resemble the generic model of a multi-door courthouse, while other countries show their distinctive pattern of judicial system and ADR systems. Third, it was found that legal pluralism is prevalent in Middle Eastern countries and Southeast Asian countries. For example, Middle Eastern countries such as Saudi Arabia have developed various kinds of dispute resolution methods, such as sulh (mediation), tahkim (arbitration), and med-arb for many centuries, since they have been situated at the state of tribe or clan instead of nation. Accordingly, they have no unified code within the territory. In case of Southeast Asian countries such as Myanmar and Malaysia, they have preserved a strong tradition of customary laws such as Dhammthat in Burma, and Shriah and the Islamic law in Malaysia for a long time. On the other hand, they incorporated a common law system into a secular judicial system in Myanmar and Malaysia during the colonial period. Finally, this article proposes a couple of factors to strengthen or weaken a multi-door courthouse model. The first factor to strengthen a multi-door courthouse model is the maintenance of flexibility and core value of alternative dispute resolution. We also find that fund raising is important to build and maintain the multi-door courthouse model, reflecting the fact that there has been a competition surrounding the allocation of funds within the judicial system.

미국 항공안전데이터 프로그램의 비공개 특권과 제재 면제에 관한 연구 (Privilege and Immunity of Information and Data from Aviation Safety Program in Unites States)

  • 문준조
    • 항공우주정책ㆍ법학회지
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    • 제23권2호
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    • pp.137-172
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    • 2008
  • 미국에서 자기비판적 분석의 법리에 의한 특권과 면제 이미 항공분야에서도 도입되고 있으나 일관성이 결여되어 있다. FDRs 프로그램은 FAA 또는 항공사에 의한 제제로 부터 공식적으로 보호되지는 아니한다. CVRs 프로그램의 경우 FAA는 집행조치를 위하여 그 데이터를 이용할 수 없으며 공개와 민사소송에서의 개시를 제한하고 있다. 따라서, CVRs은 FDR보다 높은 보호를 받고 있다. ASRS는 최초의 비자동적(non-self-disclosure) 보고시스템이며, 사고 또는 범죄에 관한 정보이외에는 FAA가 집행조치를 취할 수 없다. 다만, 비처벌 요건으로 규정하고 있는 "inadvertent and not deliberate)의 해석을 둘러싸고 FAA, NTSB 및 법원은 일관된 해석 기준이 없는 것으로 보이며, 데이터의 항공사의 징계조치에의 이용, 소송 당사자 또는 대중매체에의 공개 문제를 명확하게 다루고 있지 않다. 1990년대초 ASAP을 시범적으로 개시하였으며 FAA 집행조치 및 회사 징계조치로부터의 면제를 규정하고 있다. FOQA 프로그램은 1995년 시범프로그램을 통하여 최초로 시행되었으며 FAA 집행조치로 부터 면제되지만, 회사의 징계조치로부터의 면제에 대해서는 아무런 규정이 없다. 이러한 점은 ASAP와는 대비된다 할 수 있으며 노조협약에 의하여 FOQA 데이터에 근거한 회사의 징계조치를 배제시킬 수 있을 것이다. ASAP 및 FOQA의 데이터는 모두 2003년 FAA Order 8000.81에 의하여 공개되지 아니한다. 현재, ICAO의 움직임을 보더라도 국제사회에는 항공안전데이터를 보고한 자에 대한 보호의 강화에 대한 컨센서스가 형성되고 있으며 많은 국가들이 관련법을 시행하고 있다. 우리나라의 경우 현재, 항공법 제49조에 의하여 항공안전관리시스템을 도입하도록 되어 있다. 단계적으로 ASAP 또는 QOQA 등과 같은 프로그램의 입법화가 필요하다고 본다. 이와 더불어 미국에서와 같이 집행조치와 징계조치의 면제 규정 및 비공개 특권에 관하여 보다 구체적인 기준을 정하여 입법화하는 것도 필요할 것이다.

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2016년 중재법상의 중재판정의 효력에 대한 몇 가지 의문과 별소의 심급 제한 (Some Questions on the Effect of an Arbitral Award and Restriction of Trial Level in Other Separate Actions Under the 2016 Korean Arbitration Act)

  • 윤진기
    • 한국중재학회지:중재연구
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    • 제27권4호
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    • pp.3-33
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    • 2017
  • This paper examines some questions and issues of the effect of an arbitral award, and discusses about the restriction of the trial level in other separate actions permitted under the existence of grounds of setting aside arbitral award after the amendment of the Arbitration Act in 2016. Because there are no interests of litigation in the action for setting aside arbitral award due to the exclusion of res judicata by provisory clause of Article 35, filing an action for setting aside is not allowed even when the grounds of setting aside exist. If we examine the precedent on possibility of retrial for excluding the outward form of invalid judgement, we can find that the court did not approve the retrial. Therefore, the action for setting aside that which is for excluding the outward form of an arbitral award will not be allowed for filing. On the issue of whether an arbitral award having a ground for setting aside can be an object of the action for setting aside for excluding its outward form or not, the views of scholars are divided. In the case of an arbitral award that has grounds for setting aside, it could be interpreted that the arbitral award would not have a formale Rechtskraft or effect of sentence (bindende Kraft). Even if there is formale Rechtskraft or effect of sentence (bindende Kraft), the significance of existence of action for setting aside arbitral award under paragraph 1 of Article 36 is reduced because other actions separate from arbitration is permitted under the 2016 Act. The amendment of the Arbitration Act in 2016 provides an opportunity to review the position and the role of action for setting aside the arbitral award. It also requires further studies on efficiently treating other actions separate from arbitration. Because the restriction of the trial level of other separate actions can make arbitration active by making arbitration procedures become 3 trial levels from 4 trial levels, it needs to be solved with legislative action. Specifically, if the trial starts at the stage of trial on appeal, it can utilize the strength of both the arbitration and the litigation, playing a chief role in boosting arbitration by removing the problems of action for setting aside and enabling arbitration institutes and the person interested to promote the activation of arbitration.

국가 안보를 위한 미국 정보 자유법 시행의 결과에 미치는 조직적 요인의 분석 (The Analysis of Organizational Factors Affecting the Outcome of Federal FOIA Implementation for National Security)

  • 권혁빈
    • 시큐리티연구
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    • 제24호
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    • pp.1-31
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    • 2010
  • 본 논문은 미국 연방정부에 있어서 정보 자유법의 시행이 정부 기구의 재정, 집행자의 자질 및 관료 문화를 포함한 제반 조직적 요인들에 미치는 정책 효과를 경험적으로 검증하는데 그 목적이 있다. 실상 정보자유법의 기본 취지는 정부의 정보에 접근할 수 있는 국민의 알 권리를 보호하는 동시에 국가안보를 위한 민주적 책임을 신장하기 위하여 제정되어졌지만, 실제로 시행과정상에 있어서 각 정부 기구들의 불복종과 잦은 정보 누설 등의 다양한 요인들에 의해 본래의 목적이 훼손되면서 많은 문제점을 야기하고 있는 실정이다. 더욱이 9/11 테러를 비롯한 심각한 테러 위협에 대처할 수 있는 정보 자유법의 지속적 수정은 많은 논란을 불러 오고 있지만 이 법의 시행변수와 조직적 변수간의 인과관계를 밝히는 연구들은 소수에 그치고 있다. 따라서 본 논문은 정보자유법 시행의 주요 결정요인, 그 효과의 실태, 그리고 정책적 효과의 상대적 강점을 규명함으로써 공공조직의 정책 집행에 대한 이론적 발전에 기여함은 물론 정보 자유법의 효율성을 높이는 실천적 방안을 모색하고자 한다. 특히 본 논문은 최근 핵 문제를 둘러싼 남 북한의 첨예한 군사적, 외교적 대립속에서 국민의 알권리와 국가안보라는 상반된 가치 사이에 국 내외적으로 분열된 대립과 갈등을 빚고 있는 현 상황을 미국 정보자유법의 고찰을 통해 조명해 봄으로서 앞으로 발생할 수 있는 더욱 심각한 사태에 대처할 수 있는 시사점을 제공할 것이다.

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환경 소송과 국제투자중재 - 쉐브론 사건을 중심으로 (Case Study on Treaty-Based Investor-State Arbitration and Environmental Litigations with Specific Reference to Chevron/Ecuador Litigation)

  • 강병근
    • 한국중재학회지:중재연구
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    • 제25권4호
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    • pp.3-23
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    • 2015
  • The Chevron saga including Chevron/TexPet v. Ecuador, PCA Case No. 34877(hereinafter referred to as "Chevron I") and Chevron/TexPet v. Ecuador, PCA Case No. 2009-23(hereinafter referred to as "Chevron II") started out of domestic litigations between TexPet and Ecuador in the early 1990s. In Chevron I, the Tribunal decided that Article 2(7) of the U.S.-Ecuador BIT on effective means of provision was breached because of undue delays in the seven legal proceedings TexPet had brought against Ecuador in respect to contractual obligations. In Chevron II, it was contended that through the actions and inactions of the judiciary and the executive, Ecuador breached her several obligations under the BIT. Ecuador objected to the jurisdiction of the Tribunal because TexPet's investment was terminated in 1992, and because Chevron is not a party to the 1995 Settlement Agreement and 1998 Final Release. In its Interim Award on Jurisdiction and Admissibility, the Tribunal applied a prima facie standard to the facts alleged by the Claimants but denied by the Respondent, and decided that questions in respect of the Respondent's jurisdictional objections should be joined to the merits under Article 21(4) of the UNCITRAL Arbitration Rules. In the merits phase of Chevron II, the Tribunal divided the merits of the Parties' dispute into two parts, entitled "Track 1" and "Track 2". In its Partial Award on Track 1, the Tribunal decided that Chevron is a "Releasee" under the 1995 Settlement Agreement. In a decision on "Track 1B", the Tribunal decided that the Lago Agrio complaint cannot be read as pleading "exclusively" or "only" diffuse claims, and that, to this extent, the Claimants' reliance on the 1995 Settlement Agreement as a complete bar to the Lago Agrio complaint must fail, as a matter of Ecuadorian law. The Tribunal maintained the position that the Parties' disputes on both merit and jurisdiction should be reserved for Track 2. It remains to be seen how the Tribunal addresses the Claimants' allegations of multiple denials of justice under international law against the judgments of the Respondent's Courts, together with the Respondent's jurisdictional objections in Track 2 of the arbitration.

임대차 분쟁의 조정과 중재에 관한 연구 (A Study on the Mediation and Arbitration of Lease Dispute)

  • 남선모
    • 한국중재학회지:중재연구
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    • 제25권4호
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    • pp.119-136
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    • 2015
  • The contracting parties must be provided a litigation scheme in order to resolve a dispute. This means taking advantage of effective measures for mediation or arbitration. A lease transaction is likely to occur mainly after a dispute. It is necessary to take the appropriate measures in advance. In general, when a variety of contracts are created, conflicts arise and disputes have to be resolved through mediation and arbitration documents, and adjustment or intervention is called for. Arbitration system is a system that is established based on the trust of the arbitral tribunal. For such system, quality education for enhancing professionalism required of the arbitrator is important. A party responding to an arbitration agreement presents a problem. The current system must ensure that there are no disadvantaged parties. However, a party must depend on an arbitration agreement that is part of the law rescue system. A litigation support by the local Bar Association must be carried out. It should be notified of the contents of the contract to select a strategy that will best resolve the conflict. In the case of lease transactions, there is a need to create a scheme to make a standard agreement that inserts an arbitration clause. Lease sale and purchase agreement or lease agreement is a form of contract that has been frequently used. Here, the arbitration agreement clause for a lawyer that will serve as arbitrator should be inserted. It is a scheme that can be activated for individuals in poor areas. In addition, it is possible to see it taking a scheme to take advantage of the lawyer system for the future of the town. The Attorney System of a town is a system that the Korean Bar Association, Legal Department has put in place since 2013. If a real estate trade dispute occurs, the role of the intermediary attorney should be to carry out his duties efficiently. In the case of real estate transaction conflicts, the lawyer of the village should be registered as the arbitrator. It is important to establish a basis of regulations through this type of real estate transaction accident analysis. Before proceeding with various adjustment systems, it is desirable to expand the arbitration region. Now we need a realtor amendment. It is the part where fragmentation of intermediary qualification is required, along with the eligibility of a subdivision.

반론보도청구사건에 있어 국가기관의 당사자 적격에 관한 고찰 (A Study on a Legitimate Plaintiff in Cases Involving a State Request for a Right of Reply)

  • 유재웅
    • 한국언론정보학보
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    • 제21권
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    • pp.147-175
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    • 2003
  • 본 논문은 국가기관이 언론사를 상대로 제기한 반론보도청구사건에 있어 당사자 적격문제를 고찰한 것이다. 공인이나 국가기관과 언론사간에 언론보도를 둘러싸고 소송이 제기될 경우 미국 연방대법원이 1964년 New York Times v. Sullivan 사건에서 제시한 '현실적 악의'(actual malice) 원칙 등이 자주 거론되나 나라마다 문화와 법률제도, 언론환경 등이 다르다는 점을 고려하여야 한다. 이 논문에서는 이러한 점에 주목해 우리나라의 반론보도청구권제도를 외국의 반론권 제도와 비교 분석하고, 국가기관이 반론보도청구권을 행사하는 법적 근거와 법리, 그 요건과 한계 등을 판례와 학설 등을 토대로 검토하였다. 국가기관의 소송 당사자 적격문제는 현행 $\ulcorner$정간법$\lrcorner$$\ulcorner$방송법$\lrcorner$$\ulcorner$국가를당사자로하는소송에관한 법률$\lrcorner$이 갖고 있는 법규정상의 문제점을 개선할 필요가 있음을 제안하였다. 반론보도청구권 행사와 관련해서는 국가기관의 경우 법적으로 권한을 인정받고 있다 하더라도 정확한 사실을 알려 국민의 객관적인 판단을 구할 필요성과 언론의 자유로운 비판기능이 위축 될 가능성을 함께 고려할 필요가 있음을 밝히고 있다. 언론사도 반론권 보장에 인색한 기존의 관행에서 벗어나 언론보도로 피해를 받았다고 주장하는 자에 대하여 자신의 주장을 밝힐 수 있는 기회를 적극 제공함으로써 법적 다툼을 최소화하고 매체에 대한 신뢰도를 높일 필요가 있음을 제안하고 있다.

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