• Journal of Arbitration Studies
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• v.22 no.3
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• pp.25-46
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• 2012

China instituted arbitration law on September 1, 1995, after having legislated the law under the UNCITRAL Model Law. However, Chinese arbitration law has some problems related to the effectiveness of its arbitration agreement, unlike the UNCITRAL Model Law. Thus, parties in dispute who want to settle a dispute based on Chinese arbitration law as governing law have more to take into consideration because there could be serious problems related to the effectiveness of the arbitration agreement. Therefore, this paper attempted to analyze the classification of jurisdiction related to the authorization of effectiveness in arbitration agreement of arbitral organization and Chinese, verify the problems, and suggest the solutions. Moreover, the author tried to verify the problems in applying the law related to the authorization of effectiveness in Chinese arbitration agreements and suggest some improvements. This paper also suggests improvements and problems related to the selection of arbitral organizations among several conditions for effective arbitration agreement in Chinese arbitration law. Finally, the author suggests some cautions and countermeasures related to arbitrations agreement for domestic investors and traders dealing with the Chinese.

• Journal of Arbitration Studies
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• v.26 no.4
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• pp.43-62
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• 2016

The international arbitration system has been a useful method of settling disputes arising from international transactions. Arbitration provides the opportunity for the parties to choose a fair and neutral forum and to participate in the selection of the decision maker and the rules that will be applied. Because arbitration is a creature of contract, there is no agreement to arbitrate if there is no contract. An arbitration clause should be designed to fit the circumstances of the transaction and the parties' needs. The parties draft an arbitration clause with insufficient attention to the transaction to which it relates. Insufficient attention to arbitration agreement has caused the delay of arbitration procedure or even the inability to arbitrate. Therefore the parties pay sufficient attention to the underlying transaction so that the arbitration clause can be tailored to their particular requirements and to possible disputes that may reasonably be anticipated.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.157-181
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• 2007

The commercial relationship between South and North Korea is defined under the concept of economic relation and cooperation. To resolve any dispute that can arise from the trade and investment relations between South and North Korea, 'Agreement on the Procedures to Resolve Commercial Arbitration of South-North Korea' came into force in August 2003. Commercial Arbitration Committee of South-North Korea will be organized as the member lists of the committee were exchanged in July 2006 between South and North Korea. This committee must become a central system to settle the trade and investment disputes between South and North Korea. North Korea's Foreign Economic Arbitration Act was enacted to provide the foreign investors with the safe measures in their investments such as dispute resolution. But this Act can not dispute the trade and investment disputes between South and North Korea. The purpose of this paper is to contribute to the activation of arbitration between South and North Korea by studying Commercial Arbitration Committee of South-North Korea introduced by Agreement on the Procedures to Resolve Commercial Arbitration of South-North Korea and Agreement on the Construction and Operation of Commercial Arbitration Committee of South-North Korea and finding the problems and solutions of Commercial Arbitration Committee of South-North Korea.

• Journal of Arbitration Studies
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• v.18 no.2
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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.

• Journal of Arbitration Studies
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• v.16 no.2
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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.

• Journal of Arbitration Studies
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• v.16 no.3
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• pp.91-125
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• 2006

The arbitration rule of CIETAC was vastly revised and was put in force on May 1, 2005. By its revision, China has improved its arbitration system. Chinese arbitration law had many problems when it was enacted in 1995, but the problems could not be avoided because of the poor surroundings for arbitration in China. As China has not had much experience in operating its legal system effectively, and also has little in the way of studies on legal theory that would allow it to deal with its laws in a flexible manner, authorities usually wait to revise a law until enough relevant experience has been accumulated. Therefore, during the 10 years since its enactment, China has resolved the problems within its arbitration law through revision of arbitration rule rather than by revision of the law itself. As this law is a basic one in ruling the arbitration system in China, there are some limitations as to how far the system can be developed through revision of arbitration rule alone. In spite of the limitations, the revision in 2005 contributed a great deal to resolving the existing problems within Chinese arbitration law. The biggest problem in the arbitration law is the Chinese arbitration law that restricts party autonomy. With the revision of the arbitration rule, many problems concerning party autonomy were circumvented. This occurred because the arbitration rule now provides parties the opportunity to choose arbitration rule other than the CIETAC arbitration rule, and even allows parties to agree to amend articles in the CIETAC arbitration rule -- a very important revision indeed. In addition to party autonomy, there are other improvements for example, there is an enhancement of the independent character of the CIETAC, clearing of jurisdiction, easing in the formation of arbitration agreement, improvement in the way arbitrators are chosen, and enhancement in the cultural neutrality of the arbiter. Problems still remain that can only be solved by revision of the arbitration law itself. These problems relate to the governing law of the arbitration agreement, the collection of evidence, custody of property, selection of chief arbiter, interlocutory awards, etc. In addition, some non-legal problems must also be resolved, like the actual judicial review of arbitration awards or difficulties of executing arbitration awards.

• Journal of Arbitration Studies
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• v.24 no.2
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• pp.3-31
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• 2014

As all aspects of international activity have kept growing in good transaction, transnational investments, joint ventures, and the licensing of intellectual property, it is inevitable for disputes to increase across national frontiers. International disputes can be settled by arbitration and ADR. In the situation presented in the paper, any dispute shall be finalized by arbitration and conciliation in the Gaeseong Industrial Complex. Inter-Korean Commercial Arbitration in the Gaeseong Industrial Complex has become the principal method of resolving disputes in trade, commerce, and investment in accordance with the "Agreement on South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). But the follow-up measures of the said agreements have not been fulfilled. Some prerequisite measures of the Inter-Korean commercial arbitration must be satisfied. In order to proceed with arbitration and conciliation in the Gaeseong Industrial Complex, we need to ask the following: Does the status of an arbitrational matter? Should an agreement to arbitrate contain a choice of law clause? Should one provide for one arbitrator or three? How should the arbitrators be selected? What is the relation between party-appointed arbitrators and the presiding arbitrator (neutral arbitrator)? Do arbitrators compromise more than the litigation? Can conciliation be combined with arbitration? To execute the enactment of arbitration regulations, the contents of the Arbitration Rules of the Korean Commercial Arbitration Board (South) and the Korea International Trade Arbitration Committee (North), together with the Korean Arbitration Act and External Arbitration Act of North Korea and the UNCITRAL Model Arbitration Law and UNCITRAL l Arbitration Rules are reflected in the Rules. There are many aspects of the Inter-Korean Commercial Arbitration. It is essential to understand key elements; namely, the arbitration agreement, appointment of arbitrator, arbitral proceeding and arbitral award, and enforcement and setting aside of arbitral award. This research deals with five chapters. Chapter 1 provides the introduction. Chapter 2 deals with trade volume between South and North Korea and the kinds of dispute in Gaeseong. Chapter 3 addresses contents and follow-up measures of the agreement on the "South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). Chapter 4 features the problems and tasks of the pertinent agreements. Chapter 5 gives the conclusion. Enabling parties to find an amicable solution to the dispute in the Gaeseong Industrial Complex can lead to a useful and appropriate framework either through direct negotiation or by resorting to conciliation or mediation in accordance with pertinent agreements and follow-up measures contained in the agreements.

• Journal of Arbitration Studies
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• v.13 no.1
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• pp.207-244
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• 2003

There are many parties who connected with contracts like a contract for construction. Dispute arising from the two parties can be souled by themselves. but it grows the necessity of settlement at one effort. The meaning of multiparty arbitration is solution of mixed disputes without inconsistency through multiparty concerned. H the parses wish to settle the disputes by arbitration, they must come to an arbitration agreement. The arbitration agreement is necessary to resolve disputes autonomously, that may be in the form of a separate agreement or in the form of a clause in a contract. More ever it is resonable to view the arbitration agreement as a substantive contract in its legal nature enabling the authority for dispute resolution by the arbitrator. I had argument about who should appoint the arbitrator. That is to say, each party can appoint the arbitrator, otherwise the courts can appoint one. The basis of multiparty arbitration is focused on the factor that the courts may have the right to order the consolidation of arbitration proceedings without consent of the parties. The dispute can be settled by the arbitrators who are appointed. Appointing arbitrator is very important because it affects the party's equality. The right to appoint arbitrator shall be entitled each party in multiparty arbitration. Therefore they can appoint plural arbitrators by mutual agreement. for .reference to Rules of Arbitration of The International Chamber of Commerce, the Court shall appoint a sole arbitrator or three arbitrators in condition. The Arbitration Act of Korea dose not have the clause on multiparty arbitration including the arbitration rules. But if we have the clause enacted, it brings a situation in which both parties gain a benefit.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.173-198
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• 2004

Recently in Korea, franchise system has been specially used in the distribution industry. However, it also brought up many problems caused by various issues between franchisor and franchisee. The purpose of this article is to review recent trend of the franchise transaction contracts and resolution of the disputes in Korea. And to expand to use of ADR(Alternative Dispute Resolution) system as a practical dispute settlement procedure including mediation and arbitration. Arbitration means a procedure to settle any dispute in private laws, not by the adjudication of a court, but by the award of an arbitrator or arbitrators, as agreed by the parties. Arbitration agreement is a prerequisite for either party to a dispute to commence arbitral proceeding and may be in the form of a separate agreement or in the form of an arbitration clause in a contract and shall be in writing.

• Journal of Arbitration Studies
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• v.8 no.1
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• pp.87-122
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• 1998

This study reports on the Arbitration system in the China International Economic and Trade Arbitration commission (CIETAC) and the International Arbitration problems of Korea and China. The Chines laws including Arbitration laws are influenced by the civil Code system Particulary the German system. China is contracting state of the U N Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958 New York Convention), which became effective in the China April 22, 1987. International Commercial Arbitration is popular in China. CIETAC is the sole International Commercial Arbitration body in China. CIETAC has two sub-commissions, on is shen zhem S E Z and the other in shanghai. The CIETAC rules, are similar to the rules in effect in Countries using a civil Code system. Both an agreement to submit an existing dispute to Arbitration and an Arbitration clause in a contract relating to future disputes are recognizeal as valiad Arbitration agreements. CIETAC has the power to make a decision on disputes concering the validity of the Arbitration agreements, or jurisdiction over a specicific case.