• 한국중재학회지:중재연구
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• 제19권3호
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• pp.141-160
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• 2009

This article examines some factors that should be taken into consideration as the number of arbitrators to constitute arbitral tribunal, how to select them and the characteristics of arbitrators by their expert field, and the various problems that may arise in selection of arbitrators. When dispute parties select one arbitrator or a chairman of arbitral tribunal, they should consider the characteristic of case. When legal problem is more important, they should select a lawyer, whereas when trade practice is more important, they should select a businessman. Especially, when they decide to select a businessman as one arbitrator or a chairman of arbitral tribunal, they allow him not to write the reason of award if possible because he is lack of know-how to write it. Also, dispute parties should acquire the information of the main career and character of arbitrator, his experience of arbitration and so on before they select him.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.35-54
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• 1998

In recent years, there has been a significant increase in the number of large-scale projects involving construction, public works and the installation of industrial plants. These projects usually require the participation of a number of public and private entities and involve more than one contract. When disputes arising in connection with these projects are to be submitted to commercial arbitration, the parties often wish to have all disputes decided by one arbitral tribunal, in a single comprehensive proceeding. It has become apparent that the resolution of all major disputes which may arise in connection with such a project in a single comprehensive arbitration proceeding presents a number of advantages. The arbitral institution can provide for a multiparty arbitration proceeding only where all of the parties have agreed to it either at the time the disputes arise or at the time the parties enter into their various contractual arrangement. The discussion about multiparty arbitration centers on the question whether courts should have the power to order the consolidation of arbitration proceedings absent the consent of the parties. As the U.S. Supreme Court has repeatedly denied certiorari to cases presenting the consolidation-question, the conflict between the Court of Appeals' positions remains. The common method of selection in a bilaterial proceeding is the formula by which each party appoints one arbitrator and the two party-chosen arbitrators then mutually agree on a third, neutral arbitrator. This popular method poses, however, both a policy and practical problems In a 3-party-proceeding. It seems that the better solution is to have courts or arbitral institutions appoint all arbitrators for a multiparty proceeding. American courts have employed a variety of methods to appoint arbitrators for multiparty disputes in cases in which the parties had not provided for or could not agree upon a method themselves.

• 무역상무연구
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• 제39권
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• pp.179-220
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• 2008

The notion of the 'court' is most unique to ICC arbitration. This paper focuses on what the court is and how it works and what the role and the duties of the Court under the ICC arbitration imply for the KCAB International Arbitration Rules. The Court is an administrative body that administers arbitrations taking place under the ICC Rules of Arbitration. The Court consists of 126 members from 88 countries around the world. Court members participate in decision-making process by way of attending the committee sessions and plenary sessions. At the Court's committee sessions, the Court fixes advance on costs; reviews the prima facie existence of arbitration agreements; fixes the place and language of arbitration, and the number of arbitrator(s); confirms and approves arbitrators; scrutinizes draft awards, determines the costs of arbitration; decides on extensions related to Terms of Reference, draft awards and correction and interpretation of the awards. At the Court's plenary sessions, the Court performs only two responsibilities: the challenge or replacement of arbitrators or the scrutiny of draft awards. The Court is required to scrutinize draft awards involving states or state entities, drafts with huge amounts in dispute or complex technical or legal questions, and as well as draft awards to which a dissenting opinion has been attached. Turning to the KCAB International Arbitration Rules, Article 1(3) provides that the KCAB shall establish an International Arbitration Committee. Further, it is provided that the KCAB shall consult with the said Committee with respect to challenge and replacement/removal of arbitrators pursuant to Article 1(3). The notion and role of the International Arbitration Committee was originally adapted from the Court to ICC arbitration, but its role was quite reduced in the process of enactment of its Rules. Accordingly, I examined the detailed roles of the Court to ICC arbitration in this paper and hereby suggest that the KCAB International Arbitration Rules shall be amended in the following ways: The Secretariat of the KCAB shall: fix advance on costs at the first stage and the costs of arbitration at the final stage of the proceedings; determine the number of arbitrators; review the prima facie of existence of arbitration agreement; confirm arbitrators; decide extensions related to time table, draft awards and correction and interpretation of the awards. I, also, suggest that the arbitral tribunals shall fix the place of arbitration and the language of arbitration and make a final decision on the validity of arbitration agreement. With regard to the International Arbitration Committee, it is desirable for its Rules to empower the Committee to recommend any prospective arbitrator and to review and decide challenge and replacement/removal of arbitrators.

• 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.

• 한국중재학회지:중재연구
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• 제18권2호
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• pp.33-54
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• 2008

The KCAB enacted their new international arbitration rules(the KCAB rules) in 2007 wheres The CIETAC revised their arbitration rules(the CIETAC new rules) in 2005. This article investigates some practical problems on both rules respectively and helps trading companies to proceed arbitration by these rules. This study finds some problems as follows. There are the following problems in KCAB rules. First, application fee is too expensive fee. So KCAB should cut down their application fee. Second, if there is no agreement on number of arbitrators, the arbitration is processed by sole arbitrator. But it is very difficult for sole arbitrator to process international arbitration due to characteristics of international arbitration such as complexity of case and a large sum of claim. Third, a period of selection of arbitrator is long. In view of developing of communication means, this period is needed more short. In the meantimes, there are the following problems in CIETAC rules. First, though the CIETAC new rules enlarges the right of parties autonomy such as selection of arbitration rules or revise of it, China arbitration Act stipulates a institute arbitration which restrict partie's autonomy. Second, if there is no agreement on arbitrators, the CIETAC appoints chair of tribural in three arbitrators ion or sole arbitrators. is processed by sole arbitrator. Third, a draft of arbitral award is checked by the CIETAC in advance. Especially, the two latter problems is possible for foreigners to have doubts of fairness of CIETAC arbitration. Becuase the CIETAC is not a complete independent private institution. Consequently, I suggest that Korean trading companies should examine problems of these two arbitration rules carefully, and select a most appropriate rules for settlement of their disputes with Chines companies.

• 한국중재학회지:중재연구
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• 제29권4호
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• pp.141-164
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• 2019

The purpose of this paper is to examine the customs clearance and arbitration systems of Vietnam, Indonesia, and Thailand, from among ASEAN countries, and to present the practical implications. This paper analyzes the customs and arbitration systems through a literature review by collecting data from papers, research reports, and laws and regulations related to Vietnam, Indonesia, and Thailand. There are significant differences between these countries in relation to customs and payment of customs duties. Also, they have different procedures for the appointment of arbitrators if there is no agreement by the parties as to the number of arbitrators. Therefore, a comparison of the arbitration system and customs clearance procedures in ASEAN countries is timely and necessary, and there is a need for more research to be conducted in the future.

• 한국중재학회지:중재연구
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• 제22권3호
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• pp.71-92
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• 2012

The significant increase in international trade over the last few decades has been accompanied by an increase in the number of commercial disputes between Korea and India. Understanding the Indian dispute resolution system, including arbitration, is necessary for successful business operation with Indian companies. This article investigates characteristics of India's Arbitration and Conciliation Act in order to help then traders who enter into business with Indian companies to settle their disputes efficiently. The Arbitration and Conciliation Act(1996) based on the 1985 UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976, has a number of characteristics including the following: (i) this act covers ad hoc arbitration and institutional arbitration (ii) parties to the arbitration agreement have no option except arbitration in case of any dispute (iii) the parties can choose their own laws, places, procedures, and arbitrators (iv) the decision of the arbitrators is final and binding (v)role of the court has been minimized and (vi) enforcement of foreign awards is recognized. However, there have been some court decisions that have not been in tune with the spirit and provisions of the Act. Therefore, Korean companies insert the KCAB's standard arbitration clause into their contracts and use India's ADR(Alternative Dispute Resolution) Methods to strategically resolve their disputes. Additionally, Korean companies investigate Indian companies' credit standing before entering into business relations with them.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.25-44
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• 2009

The purpose of this parer is to examine the specifies of Institutional Arbitration and Ad Hoc Arbitration. The court prefers the institutional award in the enforcement rather than the award issued under the name of arbitrators alone. For example, the ICC Court of Arbitration scrutinizes awards for completeness, adherence to the ICC Rules and internal consistency, which since the court assurance for enforcement. In terms of arbitration costs, for which the ad hoc arbitration is considered to have comparative advantages, the institutional arbitration may not be more expensive than ad hoc arbitration, as in most commercial case, the administrative fees are insignificant. This paper suggests the standard or model arbitration clauses in institutional and ad hoc arbitrations. These Clauses contains the minimum elements necessary to render the arbitration agreement enforceable and effective. So both parties may add the specific contents such as the number of arbitrator, the place of arbitration and the language. Especially, in Ad Hoc Arbitration without designated set of rules, more clean clause for appointing arbitrators will be needed.

• 무역상무연구
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• 제55권
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• pp.63-93
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• 2012

The purpose of this paper is to examine the consideration factors, from both parties' perspective, to select the most appropriate arbitral institution when they inset an arbitration clause in their contract. Accordingly, the author analyzed the advantages of institutional arbitration compared to non-institutional arbitration. The typical advantages of institutional arbitration would include: $\bullet$ Benefits of using an established set of rules $\bullet$ Services provided by the institution $\bullet$ Low risks of obstruction $\bullet$ Enhancement of the possibilities of enforcement $\bullet$ Forecast of the estimated cost $\bullet$ Specially useful for existing disputes Next, this author examined the consideration factors when selecting the institution in respect of the following factors: $\bullet$ Institution's arbitration rules $\bullet$ Institution's rule regarding the appointment of arbitrators $\bullet$ Ability of administrators of each institution $\bullet$ Reputation of the arbitral institution and the likability of enforceability of its award $\bullet$ Cost $\bullet$ Choice of the arbitral institution in relation to the choice of place of arbitration Finally, this author reviewed Model Arbitration Clause of major international or local Institutions, including ICC, AAA, LCIA, KCAB, CIETAC, ICSID and WIPO. Further examination was given to the selection of the numbers of the arbitral tribunal, the seat of arbitration and the language of arbitration, according to the designated articles in each institution's arbitration rules.

• 한국중재학회지:중재연구
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• 제24권1호
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• pp.159-179
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• 2014

Currently disputes related to sports arise in various ways. Moreover, as the awareness of the rights of the people in the field of sports grows the chances of disputes occurring increases. Therefore, the number of sports disputes which will be dealt with by courts will increase. On the other hand, there are demands for fast and efficient legal resolutions for diverse sports disputes. However, as a dispute resolution system, the current domestic arbitration for sports disputes exposed several problems: the lack of professional arbitrators for sports disputes, procedural elements of delay, and the lack of promotion of the arbitration system. This study will first analyze the system for the resolution of domestic sports disputes. Then this study will review of the system for the resolution of international sports disputes and propose the establishment of an arbitration system for the resolution of domestic sports disputes.