• Journal of Arbitration Studies
• /
• v.19 no.2
• /
• pp.3-26
• /
• 2009

This paper is to research on the role of party autonomy in the decision of applicable law for the arbitral proceeding, arbitral award and arbitration agreement, in the decision of the place of arbitration, in the composition of arbitration tribunal, and the choice of arbitral proceedings. The principle of party autonomy is fundamental to arbitration in general and to international arbitration in particular. Generally the tenn of party autonomy is used as the autonomy of the parties to decide all aspects of an arbitration procedure subject only to certain limitations of mandatory law. Party autonomy permits the parties to a commercial arbitration to choose the laws and make the rules which govern the arbitral proceedings. Party autonomy allows the parties freedom to choose the applicable laws for the arbitral proceeding and the place of arbitration. Party autonomy is recognized in relation to the choice of law for the merits of the dispute as well as for the arbitration agreement and the arbitration procedure. On the basis of the recognition of party autonomy in international treaties, national legislation and court decisions, arbitral practice has generally accepted and enforced party autonomy both regarding the procedure and the applicable substantive law. All modern institutional rules of arbitration follow that line. Today it is recognized by national legislators all over the world to the effect that the jurisdiction of national courts can be excluded by arbitration agreement and that the parties may choose the law applicable to arbitral proceedings. Limits on party autonomy are imposed by mandatory provisions of international or national law or of institutional arbitration rules regarding the procedure. Mandatory laws at the place of the arbitration or under any procedural law chosen by the parties may restrict party autonomy. These mandatory laws usually take the form of public policy considerations in the arbitration. Limitations on party autonomy have been reduced more and more, and the trend of modern national as well as international legislation on arbitration leans clearly in the direction of a maximum of party autonomy.

• Journal of Arbitration Studies
• /
• v.29 no.2
• /
• pp.89-105
• /
• 2019

This paper reviews and analyzes the U.S. cases and statutes on the issue of party autonomy in arbitration agreement. Arbitration agreement has been interpreted somewhat differently from general contracts because its legal characteristics are not purely contractual by nature. For example, some legal scholars insist that an arbitration contract is more about an agreement on a process of dispute resolution than a creation of rights and obligations to avoid litigation. Party autonomy was discussed in diverse legal perspectives including contract of adhesion, VKI principle, and separability of arbitration clause. These three legal perspectives are discussed to set the legal relationship between party autonomy and protection of consumers in consumer arbitration. In addition, it was discussed how legal defects in the formation of an arbitration contract can influence the party autonomy. The legal defects that were discussed to analyze the relationship between arbitration agreement and party autonomy included misrepresentation, fraud, mistake, duress, and undue influence.

• Journal of Arbitration Studies
• /
• v.14 no.2
• /
• pp.199-241
• /
• 2004

This paper discusses to what extent the party autonomy can be allowed in intellectual property dispute resolution agreements in determination of governing law, international jurisdiction, and ADR agreement for arbitration, etc. in considering of the territoriality principle of IP. The party autonomy in choice of governing law and jurisdiction can be fully enjoyed in IP contract disputes. However, the freedom of choice is limited to the disputes regarding IF infringement disputes. The party autonomy is denied in the issues of determination of validity of patent or other IP rights. The author seeks the possibility to allow as much freedom in making choice of applicable law or jurisdiction, or entering into arbitration agreement.

• Journal of Arbitration Studies
• /
• v.17 no.1
• /
• pp.117-136
• /
• 2007

Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the international private law and the international commercial arbitration. The purpose of this article is to make research on the party's autonomy principle for the international commercial arbitral awards. For this purpose ist to analyse regal issue the applicability of the lex mercatoria and the possibility of $d\acute{e}pe\c{c}age$ relating to the party autonomy. In this Article ist dealt with Art. 29 para. 1 of the Korean Arbitration Act in comparison with Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure. The Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure provides equally. "The arbitral tribunal shall decide the dispute in accordence with such 'rules of law' as chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules." The term 'rule of law' used to describe the applicability of the lex mercatoria and the possibility $d\acute{e}pe\c{c}age$. Unlike Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para.1 of the German Code of Civil Procedure. Act, Art. 29(1) of the Korean Arbitration Act provides that the arbitral tribunal shall decide the dispute in accordence with the 'law' chosen by the parties as applicable to the substance of the dispute. However the majority view in Korea takes the position that the term 'law' should be interpreted broadly so as to encompass 'rules of law' at UNCITRAL Model Law and the German Code of Civil Procedure.

• Journal of Arbitration Studies
• /
• v.31 no.2
• /
• pp.23-46
• /
• 2021

Sports disputes have specific characteristics compared to disputes that arise in the field of commerce. One particularity is the judicial system in which the CAS plays a key role as the International Supreme Court for sports-related matters. The CAS Code applies whenever the parties agree to submit a sports-related dispute to the CAS(Art. R27). Once the parties to the arbitration agreement have decided that the CAS Code should govern their proceedings. The parties' autonomy is, however, limited to the provisions of the CAS Code that provide for such a corresponding autonomy. The application of the mandatory rules contained in the CAS Code cannot be excluded. In CAS appeals arbitration proceedings, the Panel shall decide the dispute according to the applicable sports regulations and, subsidiarily, to the rules of law chosen by the parties(Art. R58). In international sports disputes, the uniform application and interpretation of the relevant regulations are essential. Therefore, Art. R58 should be applied as a mandatory rule without any changes. Regulations of the sports organizations are to be qualified as valid rules of law. CAS panels may also apply the so-called lex sportiva to the merits before considering statutory provisions of national jurisdictions. In this way, the specificities in (international) sports disputes can be taken into account without the need to further examine the application of national legal standards.

• Journal of Arbitration Studies
• /
• v.16 no.2
• /
• pp.89-120
• /
• 2006

If the existence and effect of the arbitration agreement becomes an issue in international business transactions, it is the key point how we shall determine the applicable law by national rules for the conflict of laws, or by other methods. The argument in determination of the applicable law to the existence and effect of the arbitration agreement is related to regal nature of the arbitration agreement. As there are foreign factors in international arbitration, therefore we must consider such an aspect. Besides, we have to examine whether the general theory of contract is universally applicable to the arbitration agreement. Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the arbitration agreement. However, it is a difficult problem to recognize the applicable law chosen by the parties, whether it is based on any regal standard(for example New York Convention or the private international law or the essential quality of the arbitration agreement). In the light of the actual transactions, when the parties don't make a choice of the applicable law expressly, it will finally come down to presuming the party's implied intent. Nevertheless, finding the implied intent is a difficult problem. Some argue that we shall presume the choice of applicable law by an objective standard such as a place of arbitration, to prevent too much expansion of the scope of the recognition. But we need to review that this interpretation harmonizes with the principle of party autonomy. Especially, if we desire to detect the vital point where it is most closely linked to the arbitration agreement, we have to inquire how we will decide such a relation by means of any standard. However, as the existing Arbitration Act doesn't offer the solution to these issues, therefore we have to settle these problems through the development of adjudications and theories.

• Journal of Arbitration Studies
• /
• v.25 no.3
• /
• pp.3-31
• /
• 2015

This paper sets out a multi-dimensional approach that parties drafting a "hybrid clause" for their arbitration agreement can adopt, for purposes of maximizing enforceability, taking into account the multi-jurisdictional interplay between the seat Court, the governing law and the enforcement Court(s), as well as mandatory rules that can be present in the lex arbitrii, the governing law, and/or the law of the enforcement for a. This paper draws on both the co-authors' practice experience, as well as first principles of party autonomy in light of mandatory rules, based predominantly on the scholarship of Briggs and Nygh.

• Korean Journal of Legislative Studies
• /
• v.25 no.2
• /
• pp.69-101
• /
• 2019

The purpose of this study is to verify that voting behavior of congressmen can vary depending on the different candidate selection methods of political parties. Specifically, this paper examines whether congressmen elected through a primary tend to deviate from the party line vote in the floor voting, compared to those who did not. As a result, it was founded that congressmen who went through competition of the primary are more likely to defect from the party line vote than who did not. This empirical evidence suggests that if the introduction of the open primary system is further expanded in the future, it may lead to weakening of party cohesion and reinforcing lawmakers' autonomy.

• Journal of Arbitration Studies
• /
• v.19 no.3
• /
• pp.3-24
• /
• 2009

This article discusses the validity of selective/unilateral arbitration agreement that provides arbitration as one of several dispute resolution methods. The Supreme Court has held selective/unilateral arbitration agreement that is conditional invalidity since the judgement of 2003Da318 decided on Aug. 22, 2003: In the following judgements of 2004Da42166 decided on Nov. 11, 2004 and 2005Da12452 decided on May 27, 2005, the Court stated that the selective/unilateral arbitration agreement that stipulates to resolve a dispute through arbitration or mediation would be valid as an effective arbitration agreement only if a party elects and proceeds an arbitration proceeding and another party responses to the arbitration proceeding without any objection. The definition of arbitration agreement, the formation of selective/unilateral arbitration agreement, the summary of relative judgements and academic theories will be reviewed in order to examine the appropriateness of the series of judgements of the Supreme Court. Based on such reviews, this article will investigate the adequacy of the Supreme Court judgements from the perspectives of i) the principle of party autonomy, ii) the structure of dispute resolution methods, iii) legal provisions of Arbitration Act, iv) legal stability, and v) the policy to revitalize the use of arbitration. At conclusion, this article will suggest the change of precedents of the Supreme Court's judgements with regard to the selective arbitral agreement.

• Korean Journal of Legislative Studies
• /
• v.27 no.3
• /
• pp.69-106
• /
• 2021

This paper aims to explain why severe political conflicts and confrontation between the ruling and opposition forces have been continuously caused, focusing on the institutional combination of presidentialism and the two-party system with strong party disciplines, after democratization in South Korea. And this also presents the US as a case in which presidentialism and a two-party system with weak party disciplines were combined once, and the Chile as another case in which presidentialism and a multi-party system with strong party disciplines is combined, respectively, and further analyzes how the chance of consensual politics could be raised in both the countries. In addition, this study suggests a practical implication that, in South Korea also, the political reforms for changes in party system such as the decentralization or democratization in party organizations to enhance the autonomy of individual legislators, or the introduction of runoff system in presidential elections or proportional representation system in parliamentary elections to product a multi-party system, are required for a high chance of consensual politics.