• Journal of Arbitration Studies
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• v.33 no.1
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• pp.3-22
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• 2023

The purpose of this study is to present implications by analyzing the Swiss Federal Court's annulment of the arbitration Awards in Court of Arbitration for Sport(CAS). As international interest in the sports sector increases, related disputes are also increasing. Therefore, the role of CAS specializing in sports disputes is becoming very important. In particular, the Swiss federal court's annulment of the arbitral awards made by the CAS could contribute significantly to the development of sports arbitration in the future. Looking at the case analyzed in this study, first of all, it is about the partiality of the arbitrator. The court judged that the arbitrator posted and shared racist articles on SNS, which could be sufficiently biased. Next, it is about the uncertainty of the arbitration clause. The arbitral award was finally canceled due to the issue of whether the CAS could make an arbitral award with jurisdiction over a clause that includes both dispute resolution through a sports organization and dispute handling in a national court. As a result of the analysis of this study, in the case of unclear arbitration provisions, it will be necessary to prepare an arbitration agreement. In addition, in the case of unclear arbitration provisions, it will be necessary to prepare a post-arbitration agreement. Finally, in order to revitalize sports arbitration, it will be necessary to train professional arbitrators in Korea, support them to work internationally, and establish specialized arbitration institutions.

• 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.23 no.3
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• pp.61-80
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• 2013

The U.S. Supreme Court delivered a decision on the case between AT&T and Concepcion, which confirmed the contractuality of a defense as a threshold to distinguish between what is a viable defense for invalidation of consumer arbitration agreement and what is not. In this paper, the adhesiveness of arbitration clause, which is a unique character for consumer arbitration, is investigated in the U.S. as a legal defense to invalidate the consumer arbitration agreements, and its contractuality and related legal doctrines are analyzed. The legal issues of consumer arbitration have been analysed in several legal perspectives including the voluntary, knowing and intelligent doctrine, doctrine of separation, contract of adhesion and the contractuality of defenses. Among all of these, the first three issues are related with arbitration clause, and the last one, the contractuality of defenses, reflects the nature of defenses invalidating the consumer arbitration agreement.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.30
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• pp.91-120
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• 2006

An Arbitration agreement is one kind of contracts between two or more contracting parties; any possible disputes that arise concerning a contract will be settled by arbitration. Contracting parties who have made a valid arbitration agreement will submit a dispute for settlement to private persons(arbitrators) instead of to a court. Arbitration may depend upon the agreement of the private parties, but it is also a system which has been built on the law and which relies upon that law in order to make it effective both nationally and internationally. That is to say, arbitration is wholly dependent on the underlying support of the court. The complementarity of the courts and of the arbitrators is a well-established fact; they seek for the common purpose, the efficacy of international commercial arbitration. Most states' laws contain the provisions which have been set for the supportive role of the courts relating to arbitration; (1) the enforcement of the arbitration agreement(rulings on validity of the arbitration agreement), and the establishment of the tribunal at the beginning of the arbitration, (2) challenge of arbitrators, interim measures, and intervention during evidence in the middle of the arbitral proceedings, (3) filing of the award, challenge of the arbitral award, and recognition and enforcement of the arbitral award at the end of the arbitration. Most international instruments and national laws concerning arbitration believe that authoritative courts should play their power not to control and supervise arbitration but to support and develop the merits of arbitration at most. 1985 UNCITRAL Model Law also expressly limit the scope of court's intervention to assist arbitration, not to control it.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.31
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• pp.107-134
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• 2006

Enforcement of an arbitration award is an extremely important issue in arbitration. Arbitration, as a dispute settlement process, is rendered meaningless if it is not possible to enforce an award rendered by an arbitration tribunal. On the other hand, the present international arbitration system guided by the New York Convention and UNCITRAL Model Law is established on the dual supervision from the national courts. The nationality of the international arbitral award closely relates to the supervision of the national court, and the national court is entitled to decide the nationality of the international award in accordance with the conditions set in its own domestic law. The national court may set aside arbitral award made in its territory while the foreign court may refuge enforcement of foreign arbitral awards according to its own law and international convention to which it is a party. The conditions set in the Arbitration Law of the People's Republic of China are in agreement with those set in the UNCITRAL Model Law. The Chinese national court is entitled to set aside international awards made in China in accordance with the Chinese Law. The purpose of this paper is to clarify the Chinesr practice on the revocation of international commercial arbitral awards.

• Journal of Arbitration Studies
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• v.9 no.1
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• pp.183-232
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• 1999

The legislative body of The People's Republic of China, the National People's Congress, enacted the first arbitration act in China's history on August 31st, 1994, which took effect on September 1, 1995. The problems revealed through a comparison of China's Arbitration Act with the UNCITRAL model arbitration law were studied as well as the enacting process, background, status and system, important contents, problems of Chaina's Arbitration Act, and the differences between the old arbitration regulations and the new arbitration act. These are all discussed in this paper. The Arbitration Act is the basic act ruling over china's arbitration system: it unified the previously confusing laws and regulations relevant to the arbitration system, and the act brings out fundamental changes in China's domestic arbitration to the level of international arbitration standards. It is possible to view this act as a cornerstone in China's arbitration system. But, as discussed in this paper, there are still a lot of problems with the new act and only a few of the merits which the UNCITRAL model arbitration law has. First, under China's Arbitration Act, parties enjoy autonomy to some degree, but the range of party autonomy, compared to that of the UNCITRAL model arbitration law, is too narrow. Second, because China's Arbitration Act didn't explicitly provide issues which can give rise to debate, a degree of confusion in its interpretation still remains. Third, China's Arbitration Act's treatment of some important principles was careless. Fourth, in some sections, China's Arbitration Act is less reasonable than the UNCITRAL model arbitration law. These problems must be resolved in order to develop China's arbitration system. The best way of resolving these problems for China is to adopt the UNCITRAL model arbitration law. But it is difficult to expect that China will accept this approach, because of the present arbitration circumstances in China. Although it is difficult to accept all the contents of the UNCITRAL model arbitration law, China's legislators and practitioners must consider the problems mentioned in this paper.

• Journal of Arbitration Studies
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• v.23 no.1
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• pp.55-84
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• 2013

There should be an arbitration agreement between concerned parties in order to resolve a dispute through arbitration. The arbitration procedures, including the selection of the arbitrator and the adjudicative rights of the arbitrator, are based on the arbitration agreement. In other words, the arbitration procedure and adjudication can be carried out within the boundaries of the arbitration agreement. Traditionally, the Doctrine of Separability of the arbitration agreement has been acknowledged in order to emphasize its importance and to clearly separate it from the contract. Today, when the Doctrine of Separability of the arbitration agreement is well established, overemphasizing this separability could hamper its effectiveness and the autonomy of the parties. Moreover, arbitration agreements in the past were required to be written, clarifying the existence of the agreement and determining the scope of its validity. Further, an arbitration agreement was considered as narrowly as possible. However, since arbitration has become a generalized resolution for disputes, the formal or content requirements should be reconsidered. In terms of validity, the subjective and objective scope should necessarily be extended as a means to resolve disputes related to an arbitration agreement and reduce the resolution cost and duration. Under this perspective, the arbitration theory should now focus on arbitration agreements rather than the place of arbitration. We should break from the nationalistic view, which understands that the arbitration system is a part of the national legal system and that arbitration is allowed solely by permission of the nation. Instead, we should extensively reinterpret the subject of arbitration agreement and its range of effects so that disputes can be resolved between the concerned parties under a single procedure and norm, a necessary step forward. Moreover, in spite of the positive contribution and role of the New York Convention toward the establishment and development of the international arbitration system, there should be an effort to overcome its deterioration. As mentioned in the recommendations regarding the interpretation of the arbitration agreement in the New York Convention in 2006, we should begin by striving to match the Convention as a means of interpretation with the changes of the twenty-first century. Ultimately, we should meet the demands of the new era through amendments to the Convention.

• Journal of Arbitration Studies
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• v.26 no.3
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• pp.149-173
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• 2016

This study vindicates similarities and differences of hybrid process of arbitration and mediation between China and Malaysia. Both countries develop hybrid processes combining arbitration with mediation in their own cultural soils. The Chinese dispute resolver plays the dual role of arbitrator and mediator during the proceedings of hybrid process of arbitration and mediation. On the other hand, a different arbitrator plays the role of mediator, if conciliation fails in Malaysia. On the other hand, judges are allowed to act as mediator during the proceeding in China and Malaysia.

• Journal of Arbitration Studies
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• v.11 no.1
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• pp.121-143
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• 2001

Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of defined legal relationship, whether contractual or not. Arbitration has become increasingly popular in settling international and domestic commercial disputes nowadays. The importance of arbitration agreement cannot be overemphasized. It is the most reasonable way to settle commercial disputes. There are two types in arbitration agreement. one is arbitration clause, the other is submission agreement. The arbitration agreement must be made in writing, in addition, other communication instruments shall be considered as effective arbitration agreement if they are properly documented. Over the past few decades, a considerable number of studies have been conducted on the legal property of arbitration agreement in Germany and Japan. Its legal property is aspect of substantial law contract. The basis of arbitration agreement is the principle of party autonomy. The important effect of arbitration agreement is to preclude jurisdiction from national court. The respondent shall raise a plea not later than when submitting his first defense on the merits of the action. As positive effect of arbitration agreement, the court must support the conduct of arbitral proceedings and arbitrator can be appointed upon request of a party.

• Journal of Arbitration Studies
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• v.33 no.4
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• pp.3-35
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• 2023

The Korean government has enacted the Arbitration Industry Promotion Act, which aims to foster the arbitration system as an industry, strengthen national competitiveness, and systematically provide government support so that the arbitration industry can become a future growth engine, and has been in effect since June 28, 2017. In accordance with Article 3 of the Arbitration Industry Promotion Act, the Minister of Justice must establish and implement the Basic Plan for the Promotion of the arbitration industry every five years to promote the arbitration industry. Accordingly, the Ministry of Justice established the "Basic Plan for the Promotion of the Arbitration Industry" (2019-2023) at the end of 2018, which has been in effect since January 1, 2019. This study first reviews and evaluates the domestic arbitration sector performance of the first basic plan, then reviews and evaluates the international arbitration sector performance of the first basic plan, and finally suggests what tasks to focus on when establishing the second basic plan for Promotion of Arbitration Industry.