• 한국중재학회지:중재연구
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• 제31권1호
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• pp.23-54
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• 2021

While maritime arbitration industry has not been prevalent in Korea, Korea ranked fifth in terms of export volume and its shipbuilding industry ranked top globally in shipbuilding order volume in 2020. The discrepancy between the maritime industry's productivity and relative lack of maritime arbitration has had a negative impact on Korea's economic development. To address these problems, this paper i) reviews preceding research, ii) examines the Korean maritime arbitration system's status and analyzes the KCAB's maritime arbitration statistics from 2005-2020, iii) examines major foreign maritime arbitration institutions' status and strategies including LMAA, SMA, SCMA, and HKMAG, and lastly iv) suggests practical ways to promote maritime arbitration in Korea. The Suggestions for promoting maritime arbitration are 1) to prepare and promote various maritime standardized forms for the Korean shipping industry, 2) to insert an arbitration clause in medium and large-size Korean shipping firms' B/L clause, 3) to expand professional maritime manpower training and other infrastructure, and 4) to enhance the predictability of the result of arbitration through maritime arbitral awards or by examining the feasibility of the appeal system against the arbitral award only on a point of law in the future. In conclusion, the success or failure of promoting maritime arbitration in Korea depends on the will, passion, cooperation and practice of the most important key players in maritime arbitration, such as the Asia Pacific Maritime Arbitration Center (APMAC), the Korean Commercial Arbitration Board (KCAB) and the Seoul Maritime Arbitrators Association (SMAA).

• 한국중재학회지:중재연구
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• 제22권3호
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• pp.141-163
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• 2012

In Korea, although nearly all maritime arbitration cases are dealt with by the Korean Commercial Arbitration Board (KCAB), the total number of cases that are referred to the KCAB is relatively small compared with the total number of maritime cases that occur in Korea. There may be reasons why maritime arbitration is not utilized more in Korea. However, of the above reasons, the superseding one may be that there is still a lack of confidence in the credibility and foreseeability of maritime arbitration in Korea. To expand the use of maritime arbitration in Korea, it is essential that the base surrounding maritime arbitration be expanded. In addition, it is also necessary that specialists receivetraining in maritime law. In this context, it is strongly recommended that maritime and admiralty law be taught in law schools and be included as a regular subject on the Korean bar exam. Additionally, to promote maritime arbitration, a rule should be introduced allowing for shortened arbitration proceedings in Korea. Although Chapter 8 of the KCAB Arbitration Rules provide for "Expedited Procedure," this process alone is not because the rules for Expedited Procedure generally apply in arbitration cases where both parties have agreed in a separate agreement to follow the procedures provided or in any domestic arbitration valued atless than 100,000,000 Korean won. Therefore, the KCAB Arbitration Rules for Expedited Procedure must be reformed to encompass international arbitrations. Additionally, experts who are experienced in the maritime sector should be elected as arbitrators. Given the factthat a fair number of arbitration cases can be characterized as international, it is important that businesspersons who are very fluent in English be appointed as arbitrators in order to increase the reliability of maritime arbitration in Korea and save costs. Meanwhile, because lawyers and scholars constitute a considerable portion of KCAB arbitrators, commercial persons from relevant industries should be enlisted as arbitrators. Even though there are arguments for the establishment of an independent maritime arbitration board in Korea, establishment of a separate maritime arbitration board will not directly guarantee the prosperity of maritime arbitration in Korea. Instead of instituting a new maritime arbitration board, it is better that a reorganized KCAB modify existing arbitration proceedings to make them faster and more economical if maritime arbitration is to prosper. In this regard, ad-hoc arbitration would be an option for speedy and thrifty maritime arbitration. Finally, to gain the confidence of domestic and foreign parties, we cannot ignore the importance of advertising the specialties and qualifications of the KCAB and its personnel among business entities.

• 무역상무연구
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• 제64권
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• pp.65-97
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• 2014

Arbitration is the dispute methods for speedy and economic resolutions in international commercial areas. In maritime disputes cases in East Asia, Korea and Japan are the regional benefits to cover and deal with the maritime cases on arbitration. And Korea and Japan are the competitive maritime industry for heavy shipbuilding industry, cargo carrier, processing and transhipment service on ports, and ship financial services in national competitive areas. Japan is the Tokyo maritime arbitration commission(TOMAC) as an uniquely capable of dealing with arbitrations involving problems arising in the sea field. TOMAC provides amended its arbitration rules 2014 aiming at matching with the maritime disputes circumstances with three maritime arbitration rules as ordinary rules, simplified rules and the rules of small claims arbitration procedure. KCAB however, as the unique commercial arbitration board in Korea is dealing on all of the commercial disputes on only the international commercial arbitration rules in 2011. Though KCAB is dealt with maritime dispute cases on international arbitration rules in Korea, it is small and simple compared with TOMAC in Japan. Maritime disputes are highly complicated and embroiled with multi-parties contract and subcontracts arising under contracts relating to bills of lading, charter parties, sale and purchase of ships, shipbuilding, ship financing and so forth. This paper is to provides a discussion and comparison on recently arbitration rules focus on the maritime aspects on Korea and Japan. We need to consider to make an independent and special institute and maritime arbitration rules including the multiparty consolidation and med-arb provisions for handling the disputes and resolution of maritime conflict cases in Korea.

• Journal of Korea Trade
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• 제24권5호
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• pp.18-34
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• 2020

Purpose - In the international shipping industry, arbitration is mainly chosen for resolving maritime disputes. This study investigates the "acceptability" of an international maritime arbitrator based on an existing theoretical model of arbitrator acceptability. Design/methodology - Using structural equation modeling techniques, this study examines a sample of senior managers who engage in the judicial affairs of their international shipping companies to verify a hypothesized model of arbitrator acceptability that covers cultural intelligence, arbitral experience, reputation, practical/legal expertise, and procedural justice as independent variables. Furthermore, the relative "perceived required time" of arbitration is tested as a moderator. Findings - Arbitrator acceptability is significantly influenced by six constructs of arbitrator characteristics: cultural intelligence, arbitral experience, reputation, practical and legal expertise, and procedural justice. Furthermore, the moderating effect of the perceived required time of arbitration is demonstrated in the relationship between arbitrator acceptability and arbitrator characteristics even though these relationships are not equally influenced. Originality/value - The originality of this study can be found in its context, that is, international maritime arbitration. Despite the potential growth of international maritime arbitration, existing studies have mainly focused on domestic arbitration. The findings of this study are expected to provide useful guidelines for nurturing international maritime arbitration in Korea.

• 무역학회지
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• 제43권1호
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• pp.91-107
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• 2018

본 연구는 국내 최초로 설립되는 해사중재센터에 대한 실무적 관점에서 활성화 방안을 제시하는데 그 목적을 두고 있다. 따라서 해사중재의 특징과 적합성에 대한 조사를 진행하였으며 해사중재센터가 가지게 될 의의에 대해 제시하였다. 그리고 해사중재센터가 앞으로 해사 분야에서 국제적 명성을 얻기 위해서는 다음의 사항들이 계획성 있게 마련되어 진행되어야 할 것이다. 우선 해사중재에 적합한 중재규칙을 제정해야 한다. 그리고 중재에 있어 가장 중요한 요소라 할 수 있는 중재인 양성 프로그램이 준비되어야 한다. 또한 실무분야에 종사하는 사람들과의 공감대 형성을 위해 다양한 프로그램 개발 및 간담회 등을 추진해야 한다. 이밖에 절차 진행이 제대로 이루어지기 위해 법원 등과의 유대관계가 필요할 것이다. 끝으로 중장기적 전략을 수립하기 위한 방안으로서 학계와 공동으로 연구를 진행해야 할 것이다.

• 한국중재학회지:중재연구
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• 제28권4호
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• pp.153-172
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• 2018

In solving international commercial disputes, arbitration has a unique advantage. Therefore, when most parties sign a charter party, they contain arbitration clauses. Whether the arbitration clause in the charter party can be effectively incorporated into the bill of lading and bind to the third party-bill holder becomes an important issue. Based on the problem above, this paper compares the arbitration system between Korea and China, and discusses the composition of the Chinese Maritime Court and the Chinese court's adjudication of arbitration for foreign countries, which are recognized and enforced in China. What is most important in this study is observing the Chinese case from the beginning of 2000 to the present in order to rule whether the Chinese court can effectively incorporate the arbitration clause in the charter party into the bill of lading, as well as whether it constitutes an effective binding force for third parties and changes in standard of recognition. Finally, through comparative analysis, the study concludes that in China, the arbitration clause in the charter party can be effectively incorporated into the bill of lading, and that the conditions for the third parties can be effectively restrained. There must be several points to be noted when recording the bill of lading. This would then help reduce the legal risks and promote the sustainable development of international transactions.

• 한국중재학회지:중재연구
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• 제14권2호
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• pp.135-172
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• 2004

While doing business in China foreign companies occasionally find themselves embroiled in disputes with Chinese individuals, companies or the Chinese Government. There are three primary ways to resolve a commercial dispute in China are negotiation, arbitration and litigation. The best way of dispute resolution is negotiation as it is the least expensive method and the working relationship of both parties concerned in dispute. But negotiations do not always give rise to resolution. Arbitration is the next choice. Unless the parties concerned can agree to resort to arbitration after the dispute has arisen, the underlying contract namely, sales contract or separate agreement must show that disputes will be resolved by arbitration. Agreements to arbitration specify arbitration body and governing law. There are two Chinese government -sponsored arbitration bodies for handling cases involving at least one foreign party: China International Economic and Trade Arbitration Commission(CIETAC) and China Maritime Arbitration Commission(CMAC) for maritime disputes. Contracts regarding foreign companies doing business in China often designate CIETAC arbitration. CIETAC distinguishes between two kinds of dispute resolutions, foreign-related arbitration and domestic arbitration. For a dispute to be classified as foreign-related arbitration, one of the companies must be a foreign entity without a major production facility or investment in China. CIETAC has published rules which govern the selection of a panel if the contract does not specify how the choice of arbitration will be handled. CIETAC's list of arbitrators for foreign-related disputes, from which CIETAC's arbitrators must en chosen, includes may non-Chines arbitrators. But many foreign experts believe that some aspects of CIETAC needs to be improved. The purpose of this paper is to improve the understanding of arbitration in China, CIETAC by way of studying the current situation and improvement of international commercial arbitration in China.

• Strategy21
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• 통권40호
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• pp.131-143
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• 2016

On 12 July 2016, China's maritime claim to most of the South China Sea (SCS) based on the so-called nine-dash line was rejected by the Arbitral Tribunal, constituted under Annex VII to the UN Convention on the Law of the Sea (UNCLOS) concerning issues in the South China Sea including the legality of the so-called "nine-dashed line", the status of certain maritime features and their corresponding maritime entitlements, together with the lawfulness of certain actions by China which the Philppines, in a case brought in 2013, alleged were violations. As having the Tribunal determined that China's claim had no legal grounds in UNCLOS, thus undermining China's claims, and establishing that China has no exclusive legal rights to control the area roughly the size of India. There are some major implications from the Tribunal's ruling in the Arbitration award. These include implications on: how to delimit the maritime boundary in disputed waters, how to promote maritime confidence-building measures, how to safeguard maritime safety and security, and how to promote the rule of law in the SCS. Since its application of UNCLOS in East Asia, it has been obvious that the only way to resolve maritime disputes in the region is to build strong maritime cooperative partnerships under the auspices of the rule of law.

• 한국항만경제학회지
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• 제27권1호
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• pp.55-73
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• 2011

본 연구에서는 항해용선계약상 Asbatankvoy 서식을 중심으로 집단대표중재의 효과에 관한 분석을 하는데 목적이 있다. 이를 위한 자료로서 미국에서 쟁점이 된 Stolt-Nielsen 사건을 분석하고 있다. 이 사건에서 집단대표중재원칙은 중재조항이 집단대표중재를 허용할지의 여부를 결정하는 것은 중재인에게 요구하고 있다는 것이다. 당사자는 중재패널을 선임하고 중재지를 뉴욕시로 지정하였다. 또한 중재조항은 집단대표중재문제에 대하여 침묵한다는 것을 규정하고 있었다. 중재패널은 중재조항은 집단대표중재를 허용한 것이라고 판정하였지만, 지방법원은 중재판정을 무효라고 판정하였다. 그러나 제2순회구항소법원은 청구자는 집단대표중재에 대한 관례 관습과 관련된 해사원칙을 적용할 권한이 없다는 것을 인용하고 있기 때문에 중재인의 판정은 해사법의 명백한 무시를 한 것이 아니라고 판결하였다. 즉 중재인은 집단대표중재에 대한 원칙을 확립하지 않고 있는 뉴욕법을 명백하게 무시한 것이 아니라는 것이다. 그러나 미국 연방최고법원은 당사자들이 중재합의를 하였으나, 개별분쟁이 아닌 집단을 당사자로 하는 집단분쟁을 중재로 해결할지에 관하여 침묵하고 있는 경우에 집단대표중재를 강제할 수 있는지에 관하여 중재를 강제할 수 없다는 판결을 선고하였다. 최고법원에 따르면 연방중재법 상 당사자들이 분쟁을 중재로 해결하는 것을 허용하기로 합의하지 않았다면 중재를 강제할 수 없는 것이 원칙이라고 판시하고 있다.

• Strategy21
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• 통권40호
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• pp.144-161
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• 2016

A unanimous Award has been issued on 12 July 2016 by the Arbitral Tribunal constituted under Annex VII to the United Nations Convention on the Law of the Sea in the arbitration instituted by the Republic of the Philippines against the People's Republic of China. The current security issues in the regional sea shall be carefully reflected to anticipate whether the Award could resolve the existing political conflict or rather will grow military tension in the region. The Award clearly directs the scope of delimiting maritime jurisdiction to coastal States in the Southern China sea, so it seems to help facilitating finding resolutions of regional disputes on maritime boundaries. On the other hand, there are several limitations in reality to implementation of the decisions included in the Award. USA could use the decisions to restrict military activities and exercise of unilateral maritime jurisdiction by China in the region, while China shall encounter guilt to illegitimacy of its activities as well as shaking the legal foundation of its policy in the region. Then the resolution of this dispute through application of international law would rather cause more political confusion. The intension of bringing the case to an international court were to resolve political difficulties. If, however, the political difficulties are not properly reflected in the legal decisions, such decision would possibly raise more political risks.