• 한국중재학회지:중재연구
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• 제15권1호
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• pp.147-178
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• 2005

Arbitration agreement is an agreement by the parties to submit to arbitration all or certain dispute which have arisen or which may arise between them. Arbitration agreement is an important factor to judge the existence of the mutual arbitration agreement and it should be the object of examination before anything else to judge the existence of the mutual arbitration agreement. Recently the Supreme Court seemed to make negative position about validity of selective arbitration agreement. However theoretically and scientifically selective arbitration agreement is a valid arbitration agreement. Examine selective arbitration agreement throughly according to the autonomy of the parties rules, wide jurisdiction rules of interpretation, principle of kompetenz-kompetenz, and moses cone presumption rule of interpretation, selective arbitration agreement is a valid arbitration agreement. Also analyze precedents in accordance with validity of selective from all angles which are voluntary agreement of the parties, agreement in writing, principle of private autonomy, comparative study of domestic and foreign precedents and mutual relation of arbitration and trial, selective arbitration agreement based on principle of private by the parties is considered a valid arbitration agreement. Courts should actively accept selective arbitration agreement as a valid arbitration agreement to make foreign companies prefer arbitration in Korea and in oder for arbitration to be widely used in disputes.

• 한국중재학회지:중재연구
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• 제19권2호
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• pp.3-26
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• 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.

• 한국중재학회지:중재연구
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• 제33권2호
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• pp.85-108
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• 2023

In international commercial arbitrations that arise from an international commercial contract, arbitral tribunals ruling on the merits of the arbitration apply the law governing the contract. The parties to contract are free to designate the law under the principle of parties autonomy. This paper examines this principle under the Korean Arbitration Act, and makes some legislative suggestions. For this purpose, this paper first discusses what is the scope of matters covered by the law governing the contract, what are the rules of conflict-of-laws for determining the law governing the contract, and what happens when the arbitral tribunal incorrectly applies the law governing the contract? Then, this paper further goes to examine issues such as the form of choice-of-law agreement, the explicit or implicit choice of law, the parties' ability to choose the rules of law including lex mercatoria, the change of choice-of-law agreement, the independence of choice-of-law clause.

• 한국중재학회지:중재연구
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• 제31권2호
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• pp.23-46
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• 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.

• 무역상무연구
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• 제47권
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• pp.25-48
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• 2010

The principle of parties' autonomy is one of general and dominant principles in an international trade contract. When we consider the determinants of negotiation outcomes, the negotiation is affected its result by their culture and custom. A negotiation has extensively been used a lot as a business process. As we negotiate with our clients, we have to check a lot of factors like strategies, their behaviors, culture shock and custom. That why most people have their different life and circumstance. The same words which are used its contract have several meaning. Because the words are influenced by culture and own custom. Also most people abide by their social pattern. Each culture in the world follows its own customs and traditions. Therefore, when we have the negotiation of trade contract, we have to think these factors. Then the negotiation is leaded very successful This dissertation examines the effects of the negotiators' personality and different culture and custom. On the point of a negotiating power, contracting parties are affected a lot by their usage. The culture which is influenced by contracting parties is possible to apply as a key point. So, this study will be analyzed these factors.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.221-241
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• 1998

Though the arbitration agreement is a means to resolve disputes autonomously in essence, the Principle of Parties Autonomy and the Principle of Free Contracting can not be applied infinitely without any limitations but subject to the Public Policy and the Compulsory Provisions as established by an interested country. Such principle of law is applied to international arbitration agreements as well, but their validity should be determined by different standards from those in domestic arbitration agreements, in consideration of their internationality. The essential effect of arbitration agreement is to exclude from the jurisdiction of State courts. Depending upon definition of the legal nature of arbitration agreement, the range and contents of the effect of such agreement will vary. Whether State courts can intervene in claims related to Compulsory Provisions is an issue at the level of legislation policy which can not be easily concluded. But, the applicability of Compulsory Provisions can not serve as an imperative ground to deny the eligibility of claims for arbitration, so far as such claims can be disposed of by the parties. On the other hand, it is reasonable to view the arbitration agreement as a substantive contract in its legal nature enabling the authority for dispute resolution to be delegated to arbitrator, so that the Principle of Parties Autonomy can be widely applied throughout the arbitration procedure as well as with other legal acts on private laws. With this, the parties can enjoy an arbitration award appropriate for characteristics of a specific arbitration agreement, thus resulting in facilitating the use of arbitration procedure for international trade activities. To conclude, the Public Policy and the Compulsory Provisions as limitations on arbitration agreement should be applied to such an extent that they can protect States basic moral faith and social order.

• 한국중재학회지:중재연구
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• 제17권1호
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• pp.117-136
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• 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.

• 한국중재학회지:중재연구
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• 제26권1호
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• pp.3-27
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• 2016

There is a need for disputes in sports to be settled by arbitration rather than a court ruling, taking the unique characteristics of sports into consideration. Arbitration is a form of alternative dispute resolution (ADR). A dispute resolution system is regarded as: an arbitrator is selected by the agreement between the parties, and a binding decision is made, which the parties obey, consequently resulting in a final resolution. To resolve a dispute upon arbitration, there must be an arbitration agreement upon the free will of the parties. In relation to the arbitration agreement, however, there are some cases in which sports organizations have an arbitration clause in the articles of association, regulations or player registration application that call for settling disputes by arbitration. In such cases, the validity of the arbitration agreement may create doubt whether or not this sort of arbitration has been made by mutual agreement. Consequently this is required to be legally examined. The activities of a sports organization are recognized as part of private autonomy, and they include even the rights that establish regulations or rules. Nonetheless, the powers that such sport organizations are able to establish are not allowed without limit. However, sports activities and autonomy shall be protected as themselves. Therefore, if we give priority to arbitration upon the independent arbitrator and fair process by establishing an independent arbitral organization in charge of sports disputes to handle the effective resolution of disputes and protect sports autonomy and ask for a court decision if one party disobeys the arbitration, or the sports arbitration prepositive principle, it seems helpful to resolve the unfairness of compulsory jurisdiction and the clause for sports arbitration and protect the player's right of choice and of claims for trial.

• 무역학회지
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• 제43권4호
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• pp.89-110
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• 2018

본 연구는 신용장거래에서 은행의 독립지급의무 및 이 의무에 대한 예외적인 취급원칙과 방향에 대한 문제를 소재로 취급하였다. 독립원칙과 독립원칙에 대한 예외문제는 신용장의 본질에 관계되지만 국가마다 이러한 문제를 취급하는 태도에 차이가 존재한다. 본 연구에서는 영국에서의 태도를 분석하기 위해 독립원칙과 예외문제를 취급한 판례 중에서 지도적인 판례로 인정되는 사례를 중심으로 하여 독립원칙과 예외문제를 취급하는 영국의 입장을 분석하였다. 영국법원은 가능한 한 상인들 간에 형성되어 온 상관습을 존중하려는 입장을 취해 왔으며 독립원칙의 실무적인 적용에 있어서도 이러한 입장을 반영하여 독립원칙의 중요성을 강조하면서도 실질적으로는 개개의 사안마다 당사자의 형평을 고려하여 예외문제를 취급하여 왔다. 그러나 미국의 Sztejn 사건을 계기로 하여 영국에서도 독립원칙의 적용에 대한 태도의 변화를 보여 신용장거래에서의 사기뿐만이 아니라 기초계약에서의 사기도 독립지급의무에 대한 예외사유로서 인정하기 시작하였다. 그렇지만 독립원칙에 대한 예외의 운영방식에 따라 신용장제도의 존재의의가 상실될 우려가 있고 또한 발행의뢰인에 의해서 예외적용을 남용할 가능성도 있다는 문제점들을 감안하여 영국은 비록 사기적인 요소가 존재하지만 수익자 자신이 선의의 입장에 있는 경우에는 수익자를 보호하는 입장을 채택함으로써 예외인정과 예외의 남용문제 간의 조정을 도모하고 있다.

• 한국중재학회지:중재연구
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• 제16권2호
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• pp.89-120
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• 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.