• Journal of Arbitration Studies
• /
• v.24 no.1
• /
• pp.111-132
• /
• 2014

Recently, there have been discussions about the necessity of consumer arbitration such as ADR. The debate has progressed, because this area of arbitration has expanded into the press and medical fields. However, there is not an act for regulating consumer arbitration in South Korea. Thus, this issue has been deliberated at UNCITRAL Working Group III. The core issue of this deliberation is the validity of consumer arbitration. Especially if a pre-dispute arbitration agreement is contracted online, it progresses by using standardized terms; therefore it is possible that the Standardized Terms Regulating Act judges the relevant terms. This thesis consists of the following: First, concepts and categories of arbitration agreements. These include arbitration agreement, pre-dispute arbitration agreement, and arbitration agreement through standardized terms. Second, the validity of the above agreements will be discussed. There are three positions concerning their validity: affirmative as de lege ferenda, negative, and restrictively negative. Similar discussions concerning German law and cases would be helpful to specify and compare the issue. When a consumer arbitration agreement is contracted through standardized terms, it is necessary that the required formality of the agreement has been satisfied, before the effect of the agreement may be regulated by the German Civil Code.

• Journal of Arbitration Studies
• /
• v.15 no.3
• /
• pp.3-25
• /
• 2005

The companies' management strategies of the electronic commerce market are different from those of the traditional market. The main difference between the electronic commerce market and the traditional market is an IT network system which is a companies' management strategies in the electronic commerce market. This study focuses on the examination and analysis of the companies' management strategies which are constituted through influence on the effectiveness of the IT network system in the electronic commerce market and Promoting Arbitration System in The Era of Digital Economy this study is to introduce several alternative policies of the Government and companies to such formated IT network system of the electronic commerce market in the future. It's also suggested that the Korean Commercial Arbitration Board (KCAB) fully cover consideration and arbitration, while KCAB for Electronic Commerce activates its proper role of consulting and ad hoc arbitration by using electronic information. E-commerce sets up the probability that its merchants and customers will not exist in the same legal jurisdictions. The confusing application of laws and wide geographical dispersion of these parties will necessitate a faster and cheaper dispute resolution methodology. Therefore, online ADR may be effective for e-commerce dispute resolution. The examples of online ADR operation are the cyber mediation of Electronic Transaction Dispute Resolution Committee, the cyber mediation of Korean Commercial Arbitration Board, the cyber mediation of Click N Settle, the online ADR of BBB online, and the cyber arbitration of virtual Magistrate. The paper points out the last one as the most desired practice. This study results are how to minimize the disputes and the method of dispute settlement. Therefore, a role of arbitration proposed and emphasized. To protect the dispute in advance, it's suggested to revise rules timely following on technical changes, and emphasized that the dispute has to lead to arbitration settlement not for consuming unnecessary time and finance for enterprises and consumers.

• Journal of Arbitration Studies
• /
• v.25 no.3
• /
• pp.135-154
• /
• 2015

The European Union has adopted the ADR Directive and ODR Regulation in 2013 with the purpose to strengthen the e-commerce within the EU. Not covered by these legislations is the trade in the B2B sector. The author examines the question of whether online ADR under the currently applicable legal framework would be possible in Germany. At the center of his review is the possibility of an arbitration clause which refers exclusively to an online ADR scheme, may be included in the General Terms and Conditions of an online trader.

• Journal of Arbitration Studies
• /
• v.25 no.1
• /
• pp.3-23
• /
• 2015

As the Internet rapidly emerges as a speedy and cost-effective way of purchasing goods from overseas websites, the number of disputes arising out of overseas direct purchases also increases. In such situations, a disgruntled consumer might be left without an effective remedy. Providing an alternative approach to redress such grievances might assist in resolving such disputes and in increasing consumer confidence in e-commerce. Online Dispute Resolution (ODR) will allow consumers to solve their disputes without going to court, in a quick, low-cost, and simple way. It also helps to eliminate complex jurisdictional and choice-of-law problems. On the other hand, it has many problems such as having inadequate confidentiality and security, not being able to meet the "writing" requirement for arbitration of disputes, having difficulty in enforcing online arbitration agreements, having difficulties in enforcing online decisions and so on. This article investigates relationship online disputes and ODR and suggests ways that ODR can work best in resolving disputes arising out of overseas direct purchases. To expand the ODR system in online disputes, it is very important for domestic consumers to recognize the concept and usefulness of the Alternative Dispute Resolution (ADR) and ODR systems. The Korean government must also help consumers recognize the ADR mechanisms of dispute resolution by public campaign advertisement of ADR systems. Further education of dispute resolution in higher educational institutions is also required as well as assisting the KCAB with funds and the establishment of ADR Law.

• Journal of Arbitration Studies
• /
• v.15 no.2
• /
• pp.3-35
• /
• 2005

The meaning of Online ADR lies in the prompt and economical resolution of disputes by applying the information/communication element (Internet) to existing ADR. However, if the promptness and economical efficiency are overemphasized, the fairness and appropriateness of dispute resolution may be compromised and consequently Online ADR will be belittled and criticized as second-class trials. In addition, as communication is mostly made using texts in Online ADR it is difficult to investigate cases and to create atmosphere and induce dynamic feelings, which are possible in the process of dispute resolution through face-to-face contact. Despite such difficulties, Online ADR is expanding its area not only in online but also in offline due to its advantages such as promptness, low expenses and improved resolution methods, and is expected to develop rapidly as the electronic government decided to adopt it in the future. Accordingly, the following points must be focused on for the continuous First, in the legal and institutional aspects for the development of Online ADR, it is necessary to establish a framework law on ADR. A framework law on ADR comprehending existing mediation and arbitration should be established and it must include contents of Online ADR, which utilizes electronic communication means. However, it is too early to establish a separate law for Online ADR because Online ADR must develop based on the theoretical system of ADR. Second, although Online ADR is expanding rapidly, it may take time to be settled as a tool of dispute resolution. As discussed earlier, additionally, if the amount of money in dispute is large or the dispute is complicated, Online ADR may have a negative effect on the resolution of the dispute. Thus, it is necessary to apply Online ADR to trifle cases or domestic cases in the early stage, accumulating experiences and correcting errors. Moreover, in order to settle numerous disputes effectively, Online ADR cases should be analyzed systematically and cases should be classified by type so that similar disputes may be settled automatically. What is more, these requirements should reflected in developing Online ADR system. Third, the application of Online ADR is being expanded to consumer disputes, domain name disputes, commercial disputes, legal disputes, etc., millions of cases are settled through Online ADR, and 115 Online ADR sites are in operation throughout the world. Thus Online ADR requires not temporary but continuous attention, and mediators and arbitrators participating in Online ADR should be more intensively educated on negotiation and information technologies. In particular, government-led research projects should be promoted to establish Online ADR model and these projects should be supported by comprehensive researches on mediation, arbitration and Online ADR. Fourth, what is most important in the continuous development and expansion of Online ADR is to secure confidence in Online ADR and advertise Online ADR to users. For this, incentives and rewards should be given to specialists such as lawyers when they participate in Online ADR as mediators and arbitrators in order to improve their expertise. What is more, from the early stage, the government and public institutions should have initiative in promoting Online ADR so that parties involved in disputes recognize the substantial contribution of Online ADR to dispute resolution. Lastly, dispute resolution through Online ADR is performed by organizations such as Korea Institute for Electronic Commerce and Korea Consumer Protection Board and partially by Korean Commercial Arbitration Board. Online ADR is expected to expand its area to commercial disputes in offline in the future. In response to this, Korean Commercial Arbitration Board, which is an organization for commercial dispute resolution, needs to be restructured.

• Journal of Arbitration Studies
• /
• v.25 no.1
• /
• pp.25-46
• /
• 2015

Cross-border consumer disputes are on the increase as cross-border trade between consumers and businesses continues to grow. Cross-border consumer disputes are difficult to solve, because there are different languages, laws and institutions between the parties. These consumer disputes can be solved more easily by Online Dispute Resolution (ODR) in comparison with utilizing court processes. ODR is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR). On 18 June 2013, the new legislation on Alternative Dispute Resolution and Online Dispute Resolution has been published - the "Directive on Consumer ADR and Regulation on Consumer ODR". The new legislation on ADR and ODR will allow consumers and traders to solve their disputes without going to court, in a quick, low-cost and simple way. The United Nations working group for online dispute resolution of cross-border electronic commerce transactions (UNCITRAL Working Group III) has been underway since 2010 to continue its work on procedural rules for ODR.

• International Commerce and Information Review
• /
• v.6 no.2
• /
• pp.23-41
• /
• 2004

Rapid development of computer and telecommunication technology brought out the expansion of electronic commerce which is the new type of business transaction. Offline transaction can lead to problems and disputes the same is for cyberspace transactions. However ADR is not meet for the online transaction for speed, cost and open network system, ODR methods to resolve electronic commerce conflicts is crucial for building confidence and permitting access to justice in an online business environment. And ADR refers to processes other than judicial determination in which an impartial person assists those in a dispute to resolve the issues between them. ODR refers to ADR processes assisted by information technology, particularly the internet. ODR has been available since 1996. Its development can be as passing through three broad stages : hobbyist, experimental, entrepreneurial, institutional phrase. Also, ODR has adapted a range of traditional ADR for use online, including arbitration. mediation. facilitated negotiation and case appraisal. Mediation and arbitration have been the most prevalent forms of ODR. ODR is the burgeoning field and has created a new issues. All such issues which have been debated in the ADR are composed with ODR. But these are not limited. Some of issues are further complicated by the nature of the online environment such as confidentiality and principle of parties. Finally electronic commerce now takes place on the Internet, it is inevitable that the commercial world wants access to dispute resolution process that best suits the new commercial environment. ODR methods are processing for development and legal issues are considered by both national and international authorities.

• Journal of Arbitration Studies
• /
• v.24 no.4
• /
• pp.49-97
• /
• 2014

This study is about the availability of Chinese internal arbitration institutions by Korean invested companies. Generally, Chinese internal arbitration institutions lack independence from government. However, because parties seeking an arbitration award have ways to get neutrality from internal arbitration institutions that guarantee party autonomy, these Korean companies can use Chinese internal arbitration institutions to resolve disputes in China. Special attention should be given to the following. First, because Korean companies invested in China are legally in the same position as Chinese companies, unless foreign-related factors intervene, when disputes occur with Chinese companies or individuals, the disputes correspond to internal dispute, and when it comes to choosing the arbitration institution, these Korean companies must choose either a Chinese internal arbitration institution or foreign-related arbitration institution. Second, most Chinese internal arbitration institutions still lack independence from government, which can influence the fairness of arbitration in the future. Therefore, Korean companies invested in China should think about alternative ways to get a minimum impartiality in arbitration cases. Third, the parties are allowed to choose arbitration rules freely in Beijing, Xian, Chongqing, Guangzhou, and Hangzhou arbitration commissions. Therefore, in arbitration cases, the parties can get impartiality by choosing arbitrators according to the arbitration rules which they agree on, or by choosing partially modified arbitration rules of those arbitration commissions. Fourth, in order to get an impartial arbitration award from Chinese internal arbitration institutions in China, it is important for Korean lawyers or arbitration experts -- fluent in Chinese -- to be registered in the List of Arbitrators of Chinese internal arbitration institution by way of signing a MOU between the Korean Commercial Arbitration Board, or the Korean Association of Arbitration Studies and arbitration commissions such as those of Beijing, Xian, Chongqing, Guangzhou, and Hangzhou which comparatively do guarantee party autonomy. Fifth, because application of the preservation of property before application of arbitration is not approved in China, in practice, in order to preserve property before application of arbitration, it is best to file another suit in China based on other legal issue (e.g., tort) independent from the contract which an arbitration agreement is applied to. Sixth, in arbitration commissions which allow different agreement regarding arbitration procedures or arbitration rules, it is possible to choose a neutral arbitrator from a third country as a presiding arbitrator via UNCITRAL arbitration rules or ICC arbitration rules. Seventh, in the case of Chinese internal arbitral award, because the court reviews the substantive matters to decide the refusal of compulsory execution, the execution rate could be relatively lower than that of foreign-related cases. Therefore, when Korean companies invested in China use Chinese internal arbitration institution, they should endure low rate of execution. Eighth, considering the operational experiences of public policy on foreign-related arbitration awards so far, in cases of Chinese internal arbitration award, the possibility of cancellation of arbitral award or the possibility to refuse to execute the award due to public policy is thought to be higher than that of foreign arbitral awards. Ninth, even though a treaty on judicial assistance in civil and commercial matters has been signed between Korea and China, and it includes a provision on acknowledgement and enforcement of arbitral award, when trying to resolve disputes through Chinese internal arbitration institution, the treaty would not be a big help to resolve the disputes, because the disputes between Korean companies invested in China and the party in China are not subject to the treaty. Tenth, considering recent tendency of conciliation by the arbitral tribunal in China and the voluntary execution rate of the parties, the system of conciliation by the arbitral tribunal is expected to affect as a positive factor the Korean companies that use Chinese internal arbitration institution. Finally, when using online arbitration, arbitration fees can be reduced, and if the arbitration commissions guaranteeing party autonomy have online arbitration system, the possibility of getting impartial arbitration award through them is higher. Therefore, the use of online arbitration system is recommended.

• Journal of Arbitration Studies
• /
• v.34 no.1
• /
• pp.51-74
• /
• 2024

Korea continues to invest in the IT industry and is currently regarded as one of the five major powerhouses in the field of intellectual property. However, it is evaluated that this status is only limited, and the level of intellectual property protection and dispute resolution does not reach a level commensurate with the status of one of the five major intellectual property powers. To address these problems, the Korean government has enacted the Arbitration Industry Promotion Act in 2017, which aims to strengthen national competitiveness by fostering the arbitration system as an industry and provide systematic support so that the arbitration industry can become a future growth engine. In addition, in accordance with Article 3 of the 「Arbitration Industry Promotion Act」, the Minister of Justice must establish "the Basic Plan for Arbitration Industry Promotion" every 5 years. Great efforts must be put into establishing an Online Dispute Resolution (ODR) system at the KCAB for five years from 2024 to 2028, the Second Basic Plan for the Promotion of the Arbitration Industry period. Under these circumstances, this study presents implications and improvement measures for the development of the intellectual property-related arbitration system to protect Korea's intellectual property rights and contribute to more active intellectual property creation. In particular, this study proposes a plan to build an one-stop digital platform for KCAB to implement an efficient ODR system.

• Journal of Arbitration Studies
• /
• v.29 no.3
• /
• pp.121-140
• /
• 2019

First, the purpose of this research is to review the Online Dispute Resolution (ODR) regulations in Korea to resolve disputes which can arise in international e-commerce in the near future. Second, this research tries to look for alternative solutions to dispute resolutions according to these regulations. Third, this research pursues to enhance the effectiveness of business deals by providing efficient and satisfactory dispute resolution methods for e-commerce business. Furthermore, this study evaluates the definition of global e-commerce by comparing Online Dispute Resolution (ODR) with Alternative Dispute Resolution (ADR). Through analyzing the domestic ODR system and ADR system, this research could boost the employment of settlements in small-sized disputes through easy and convenient consumer access to both ODR and ADR procedures. The enhancement of the competitiveness of Korean companies in the global market is estimated to take place as a result. This research is estimated to provide benefits to our businesses both domestically and internationally by using ODR regulations and ADR methods. Moreover, this research is anticipated to verify usefulness in terms of consumer protection by advancing consumers' access to dispute solution authorities locally and abroad.