• 한국중재학회지:중재연구
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• 제13권2호
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• pp.103-122
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• 2004

Recognition and enforcement of the arbitral award play an important role in the settlement of the international commercial disputes. The New York Convention makes it a duty for the courts of signatories to recognize and enforce the foreign arbitral awards not taking the nationality of the party concerned into consideration. Recognition and enforcement of the arbitral award may be refused if the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. The arbitral award has the same force as an irrevocable judgement including effect of excluding further litigation, its execution and formation. But the effect of set aside arbitral award made abroad in arbitral place was denied by France court for the interest of his people. There is no arbitral act but arbitral procedure is regulated by New Code of Civil Procedure in case of France. An appeal against the decision which grants recognition or enforcement is open if the recognition or execution is contrary to international pubic policy in virtue of Art. 1502. Arbitrator may consider compulsory provisions in arbitral place to assure to recognition and enforcement of the arbitral award.

• 한국중재학회지:중재연구
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• 제28권4호
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• pp.43-59
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• 2018

This study aims to review various efforts required by medical institutions to prevent medical accidents in advance and to suggest the necessity of introducing liability insurance for medical accidents based on cases abroad and compulsory professional indemnity insurance at home. Over the past five years between 2013 and 2017, the number of inquiries regarding medical accidents and medical disputes has increased by 11.1 percent from 36,099 to 54,929, and the number of mediation and arbitration for medical disputes has increased by 14.3 percent from 1,304 to 2,225. Since some medical accidents even cause social problems, a compulsory insurance system for the liability of medical institutions for damages need to be introduced to promptly compensate the victims of medical accidents and to ensure compensation by medical personnel. In Korea, a system is in place to provide compensation for a client who suffers an accidental damage after receiving professional services, regardless of whether or not the professional service provider can provide compensation. In major foreign countries, a medical liability system is in place that is applied either by the principle of liability with fault, or the principle of liability without fault. In this study, the cases of compulsory insurance and semi-compulsory insurance in the US and Japan to which the principle of liability with fault is applied, as well as the case of New Zealand to which the principle of liability without fault is applied, were examined. It is necessary to urgently introduce the compulsory insurance system for the liability of compensation to prevent medical disputes and to compensate for the life and physical damages of the victims of medical accidents in domestic medical institutions. Doing so is expected to ensure fair compensation for the victims of medical malpractice and compensation by medical personnel, thereby improving medical practice.

• 한국중재학회지:중재연구
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• 제31권1호
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• pp.155-171
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• 2021

Recently, the e-business market has become a place of convergence where consumers and suppliers communicate with each other, and a new method of trading of funds has emerged in the process. Crowd-funding is one of the types of money transactions that have emerged in the online space, and its interest and trading volume have been growing rapidly recently. The platform in the online space using crowd-funding method operates in the form of online telecommunication sales, and it is in the form of producing and delivering products based on funds obtained from potential consumers by the operators involved in securing funds. However, if the participating business operators do not deliver the product or deliver the product other than the promoted product and avoid responsibility, the potential demander will not be compensated without mediation by the platform operating entity. In this study, despite the rapid growth in the market size of crowd-funding, consumers who participated in the funding are protected and able to resolve disputes in the event of a conflict amid growing complaints from potential consumers and side effects. The structure or method of crowd-funding is a new form of trading that has different features from conventional e-commerce. Therefore, the legal basis is not yet in place and the standards need to be laid out through various and sufficient discussions politically, legally, socially and culturally and economically. As the potential market and positive effects of crowd-funding around the world have been recognized, a role is required as an ecosystem for new financial transactions. And the potential market could be realized as a new industry if the right legal system and policy consultation were made.

• 한국중재학회지:중재연구
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• 제21권3호
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• pp.55-87
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• 2011

This paper is to illustrate a variety of court-annexed ADR programs and vindicate its implications of court-annexed ADR in United States. It has been almost three decades since Frank Sender articulated his vision of the multi-door courthouse. The court-annexed ADR originated from the concept of multi-door court house. Professor Sander argued that the court must transform from the court that provides litigation, only one type of dispute resolution, to the multi-door courthouse which provides a variety of dispute resolution methods including a number of ADR programs. The types of court-annexed ADR on which this paper focus are court-annexed mediation, court-annexed arbitration, mini trial, early neutral evaluation(ENE), summary jury trial, rent-a-judge, and med-arb in United States. The findings of this paper is as follows. First, the ADR movement is the irreversible and dominant phenomenon in the US court. The motivation of incorporating ADR into court is to reduce the cost of court to handle the civil disputes and to eliminate the delay of litigation process in the court. At the same time, a couple of studies of ADR revealed that the ADR program satisfied users of ADR. Second, the landscape of ADR has not been fixed. In 1970's, the court-annexed arbitration has been popular. In 1980's, the diverse kinds of ADR programs were introduced into the federal court as well as state courts, such as mini trial, early neutral evaluation(ENE), summary jury trial, and court-annexed mediation. But in 2000s, the court-annexed mediation has been the dominant type of ADR in United States. Third, the each type of ADR program has its own place for the dispute resolution. Since Korean society enters into the stage in which diverse kind of disputes occur in the areas of environment, construction, medicare, etc, it is desirable to take into consideration of the introduction of ADR to dispute resolution in Korea.

• 통상정보연구
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• 제6권2호
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• pp.23-41
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• 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.

• 무역학회지
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• 제44권2호
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• pp.95-107
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• 2019

The ICSID arbitral tribunal shall determine the suitability of investors in accordance with the Article 25 of the ICSID convention and the investment or investor's provisions under the BIT. The eligibility of investors has an important role in establishing jurisdiction under international investment disputes. Therefore, this study draws implications on issues related to investor qualification, focusing on ICSID arbitration. The investor's nationality shall be taken into consideration in determining whether the investor is eligible. The criteria for determining the nationality of a corporate investor include the place of incorporation, main business location, and substantial ownership or control. The criterion of the place of incorporation that is used in a number of BIT have the problem of protecting investors from third countries not involved in the BIT. So, in recent years it is stipulated that the actual economic activity or the main business location as well as the place of incorporation criteria. And this problem is complemented by the denial of benefit clause. When determining whether a local corporation is controlled by foreigner in the host state it considers the shareholding rate, voting rights, and the exercise of managerial rights. There is a tendency to recognize shareholder's right to petition. Thus the same damage should not cause problems such as duplicate repayment or double reimbursement between the shareholders and the company. Unexpected problems can arise if the scope of investments and investors is broadly specified in the BIT. Therefore, it is necessary to clarify the scope of investment to be protected.

• 한국중재학회지:중재연구
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• 제10권1호
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• pp.3-25
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• 2000

At its thirty-second session in 1999, the UNCITRAL had before it the requested note entitled "Possible future work in the area of international commercial arbitration." After concluding the discussion on its future work in the area of international commercial arbitration, it was agreed that the priority items for the working group should be conciliation, requirement of written form for the arbitration and enforceability of interim measures of protection. the Commission entrusted the work to the Working Group on Arbitration which held its thirty-second session at Vienna from 20 to 31 March 2000. The Working Group discussed agenda item 3 on the basis of the report of Secretary General entitled "Possible uniform rules on certain issues concerning settlement of commercial disputes : conciliation, interim measures of protection, written form for arbitration agreement." At its thirty-three session in 2000, the UNCITRAL had before it the report of Secretary General on agenda item 3 discussed by the Working Group. The Working Group discussed the issues relating to certain aspects of conciliation proceedings ; (1) Admissibility of certain evidence in subsequent judicial or arbitral proceedings ; (2) Role of conciliatior in arbitration or court proceedings ; (3) Enforceability of settlement agreements reached in conciliation proceedings ; (4) Other possible items for harmonized treatment : a) Admissibility or desirability of conciliation by arbitrators b) Effect of an agreement to conciliate on judicial or arbitral proceedings c) Effect of conciliation on the running of limitation period d) Communication between the conciliator and parties ; disclosure of information e) Role of conciliator. It was generally considered that decisions as to the form of the text to be prepared should be made at a later stage when the substance of prepared solutions would become clearer. However, it was noted that model legislative provisions seemed to be appropriate form for a number of matters proposed to be discussed in the area conciliation. There was general support in the Working Group for the proposition to perpare a legislative regime governing the enforcement of interim measures of protection ordered by arbitral tribunals. It was generally considered that legislative regime should apply to enforcement of interim measures issued in arbitration taking place in State where enforcement was sought as well as outside that State. It was generally observed that there was a need for provisions which conformed to current practice in international trade with regard to requirements of written form for arbitration agreement. The view was adopted by the Working Group that the objective of ensuring a uniform interpretation of the form requirement that responded to the needs of international trade could be achieved by : preparing a model legislative provision clarifying, for avoidance of doubt, the scope of article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration : and adopting a declaration, resolution or statement addressing the interpretation of the New York Convention that would reflect a broad understanding of the form requirement. There was general agreement in the Working Group that, in order to promote the use of electronic commerce for international trade and leave the parties free to agree to the use of arbitration in the electronic commerce sphere, article II(2) of the New York Convention should be interpreted to cover the use of electronic means of communication as defined un article 2 of the Model Law on Electronic Commerce and that it required no amendment to do that. The UNCITRAL may wish to consider to the desirability of preparing uniform provisions on any of those issues concerning conciliation and arbitration proceedings, possibly indicating whether future work should be towards a legislative text or non-legislative text.

• 한국중재학회지:중재연구
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• 제20권3호
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• pp.25-46
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• 2010

In spite of great interest and recent innovation of the legislative system in the Arbitration and other Alternative Dispute Resolution(ADR) system, In Japan there have been only a few case in which International commercial dispute was settled through the Arbitration compared to other countries. However, we can easily expect that foreign arbitral awards which need to be recognized and enforced in Japan will gradually increase and this makes it very important for us to review the Japanese legislative system regarding recognition and enforcement of foreign arbitral awards. In this paper, I focused on the relations between applicable laws(including convention) regarding recognition and enforcement of foreign arbitral awards in Japan and some issues concerning refusal of recognition and enforcement of foreign arbitral awards. Japan is a member state of several multilateral conventions concerning recognition and enforcement of foreign arbitral awards including the New York Convention of 1958 and at least 20 bilateral agreements which include provisions in relate to the recognition and enforcement of arbitral awards. Therefore there are some legal issues about the priority application between multilateral and bilateral agreements in relate to Article 7(1) of the New York Convention. In Japan, as I mentioned in this paper, there are incoherent opinions concerning this issue. To solve it substantially it would seem appropriate to build up concrete and explicit provisions concerning the application of priority between multilateral and bilateral agreements. On the other hand, in relate to the application between the New York Convention and National Law, it is necessary to take general approach regarding the priority application between Convention (Treaty) and National Law, considering the national application of conventions under the Constitutional System of each country. Among the grounds for non-recognition/enforcement, there are the ones that are decided under the law of the requested country, for instance, arbitrability and public policy. It would therefore be possible that some foreign arbitral awards would not be recognized in Japan especially relating to the arbitrability because its scope in Japan is not so large. Regarding the enforcement of awards annulled in their place of origin, some positive opinions in recent Japanese legal discussions, say that annulled awards should be enforced as a counter strategy of developed countries and judiciary discretion of the requested country would be needed. As mentioned in this paper, the recognition and enforcement of foreign arbitral awards is closely related to judicial policy of the requested country as the recognition and enforcement of foreign judgment is. Even though there existed uniform rules on recognition and enforcement of foreign arbitral awards like the New York convention, each country has different internal legal status of conventions under its own Constitutional System and tends to interpret the provisions based in its own profit. Therefore, it is necessary to review, in the light of conflict of laws, the national legislative system including legal status of conventions of the requested countries concerning recognition and enforcement of foreign arbitral awards.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.269-291
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• 1998

Change of circumstances subsequent to formation of international business contract raises two issues on both parties' obligation to perform business transaction concerned. One is impossibility of performance due to events beyond control of parties and the other is adaption of contract. In Anglo-American Law such an impossibility of performance is provided by the doctrine of Frustration and the doctrine of Practicability(UCC 2-615). In practice a "force majeure" clause should be included in contract defining the parties' mutual rights and duties if certain events beyond their control occur to safeguard themselves against possible impossibility. On the other hand the tendency of international trade is that alongside sales contracts, there are contract for supplies, for furnishing raw materials, for building industrial complexes, and transferring technology. One characteristic of these agreements is their duration. For in order to carry out these agreements, it is necessary to complete a series of closely interrelated operations which, in the normal course of events, take place over a number of years. It is often difficult for the parties, when finalizing their contract, to have a full grasp of all of the factors governing their relations. With a view to resolving difficulties such as compromise the continuous performance of a contract, parties may insert a regulatory clause in their contract providing for intervention by a third person after stating in specific and detailed fashion the circumstances in which their contract may be adapted.

• 무역상무연구
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• 제51권
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• pp.133-158
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• 2011

The purpose of this study is to analyze one of CIETEC(China International Economic and Trade Arbitration Commission) Award on the dispute arising from Cotton Sale Contact which deals with damages and reduction of the price. Especially this case focused on the effect of reduction of the price to damages. The purpose of damages is to place the aggrieved party in as good a position as if the other party had properly performed the contract. So court costs and attorney's fee should be regarded as the loss, because these are caused by consequence of the breach which is recoverable. With the same reason, overpaid taxes should also regard as the loss. It is not impossible, however, to claim both damages and reduction of the price for same loss at the same time. It means buyer could not claim damages for the same loss, once he already claimed reduction of the price. So Korean companies should consider which remedy is proper to himself under the circumstances. He should choose reduction of the price when market price is down. In case of rising market price, he should consider follows: first, it is better to choose damages based on current price(Art.76), if upswing of non-conformity price is higher then upswing of market price. Second, it is better to choose general rule for measuring damages(Art.74), if upswing of market price is higher then upswing of non-conformity price.