• Journal of Arbitration Studies
• /
• v.25 no.4
• /
• pp.51-75
• /
• 2015

Administrative ADR to solve new problems has the characteristics of a new project, hence ADR is established and operated with a lack of human and material resources in the process of introducing administrative ADR. Therefore, it is preferred to resolve conflicts by less costly counseling and mutual agreement before mediation. When we try to settle the disputes through administrative ADR at the stage before mediation, it causes problems for the neutrality and impartiality of the dispute settlement procedures. In this case administrative ADR systems should introduce devices that ensure the impartiality of the process. In some issues becoming social problems, relevant administrative agencies are inclined to establish ADR systems. If ADR systems become available, a person who may use ADR services may have some trouble grasping ADR institutions because he/she can hardly distinguish their business affairs. By subdividing administrative affairs, when the disputes have the issues that touch on various fields of the affairs, parties in the disputes have to take ADR procedures one by one in all ADR-related institutions. This may lead to too heavy a burden on the disputing parties, furthermore forcing them to give up the remedies of their rights. For more efficient ADR operations, it is necessary that the institutions which set up and operate ADR systems should actively exchange and cooperate with one another. They need to forge and strengthen the solidarity between administrations and courts. The administrative agencies which run ADR themselves have to build up the devices for preparing human resources and material facilities for administrative ADR.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.57
• /
• pp.79-108
• /
• 2013

International transactions of plant and construction project need to time to time for completing the contract. During the performing the contract there may arise many claims and disputes it should be settled rapidly for processing schedule of works. However, arbitration and litigation for settlement of dispute are inappropriate in time and expense under the specifications of plant and construction project. Dispute boards are one of the successful resolution method of dispute prior to litigation or arbitration. If the dispute board was failed, of course, it may be allowed to continue into litigation or arbitration. As the creative methods of parties agreement, dispute boards may be expected to avoid claims and dispute in long and medium international contract. The purpose of this paper is to explore the specification and limitations of dispute boards that may clear disputes under long and medium contract of construction and procurement. It needs to be understand to determine whether is the useful methods for resolving dispute in the international project. This paper considers the specific natures of dispute board and its rules, procedures and problems including ICC and FIDIC for the contract of long and medium transaction.

• Korean Security Journal
• /
• no.11
• /
• pp.129-157
• /
• 2006

With rapid social change, by culminating the social hazards and the safety problems about it are on the increase too. According to the needs for the safety the demand of the private guard & security provided the safety and security service against danger is also increasing. As the need for the safety is increasing, so recently the private guard & security industry is extended. Therefore the purpose of this study is to grasp and carry out researches into the legal structure on the Security contract, is to analyze the formation of contract and find out the ensuing problem in order to prevent or settle the dispute which is apt to occur between the specific client and the security companies. In order to minimize the dispute going with security relationship in particular, it is necessary that one should write down the agreed contents as the document explicitly to make a security contract with the parties. Hereupon in the plan which standardizes the security contract with each parties autonomously, it is suggested that this study should present the model of Dispute Resolution Clause Especially it is the best means that it is amicable consultation or negotiation as the effective way of settlement methods of private dispute arising from the concerned parties. In inevitable case it recommends the method which solves the dispute by means of an arbitration than litigation at administration of justice(in terms of jurisdiction). If the parties wish to settle the disputes by arbitration, they must come to an arbitration agreement in the form of a arbitration clause in the security contract. After the test and evaluation through application utilizing it in actual security field, the security standard contract regulates about it and this terms should widely apply a individual case to whole industry.

• Journal of Arbitration Studies
• /
• v.22 no.2
• /
• pp.79-101
• /
• 2012

In 2010, the United Nations Commission on International Trade Law (UNCITRAL) initiated work on the settlement of disputes in international e-commerce through online dispute resolution (ODR). The basic goal is to use ODR to resolve disputes with low value but high volume in international e-commerce. The background is that consumers have no way to solve their legal problems in this area. An ODR system is intended to create a new way to enforce their rights. However, the legal situations of the countries in the e-commerce sector, particularly in consumer protection, are very diverse. Thus, no reasonable model for conflict resolution is available. Some countries consider this as public policy and want absolute protection of their consumers. Other countries want to encourage freer e-commerce trading. This diversity of consumer protection policy is an obstacle to ODR. However, sooner or later, reaching an agreement is feasible because each representative is making a reasonable effort to reach the goal.

• The Korean Society of Law and Medicine
• /
• v.15 no.2
• /
• pp.91-122
• /
• 2014

For a variety of reasons, the number of medical disputes is continuously rising. Due to the intrinsic qualities of medical treatments, one would find it more apt to subject medical disputes to general conflict resolution procedures rather than to once-for-all decisions under legal suits. To address the increasing medical disputes with greater professionalism and efficiency, the Medical Disputes Mediation Act was enacted and a medical dispute mediation system put in place, while drawbacks have been blamed to both. The current mediation procedures require the respondent's agreement as a disclosure requirement. A reasonable improvement to this would be to amend the regulation of agreement supposition, or to enforce procedural participation only to public health facilities managed by the national or regional government. Furthermore, small claims cases of 20 million KRW or less in claim may be considered for conciliation-prepositive principle. The concentration on small claim medical disputes is a phenomenon that can be addressed by carrying out maximum authentication commissions or similar measures, one of the solutions by enhancing the public trust in the Korea Medical Dispute Mediation and Arbitration Agency. The proper management of medical authentication teams is one way to address the existing problems in the authentication system. For this, the number of team members shall be increased under more flexible authentication procedures. All indemnity resources for medical accidents of force majeure must be borne by the Government, for it is the body principally responsible for social compensation. Placing this cost on the establisher of the subject medical facility holds the possibility of violating fundamental rights. While the costs for subrogation payment system for damages may be borne by the healthcare facility establisher, a deposit-based system must be created for cases in which the facility shuts down, without holding the responsibility for accident cause. Such change to a deposit-based system will evade the controversies of unconstitutionality, etc.

• Journal of Arbitration Studies
• /
• v.20 no.2
• /
• pp.173-198
• /
• 2010

The purpose of this paper is to research on the liability for the space damage and the settlement of the dispute with reference to the space activity under the international space treaty and national space law of Korea. The United Nations has adopted five treaties relating to the space activity as follows: The Outer Space Treaty of 1967, the Rescue and Return Agreement of 1968, the Liability Convention of 1972, the Registration Convention of 1974, and the Moon Treaty of 1979. All five treaties have come into force. Korea has ratified above four treaties except the Moon Treaty. Korea has enacted three national legislations relating to space development as follows: Aerospace Industry Development Promotion Act of 1987, Outer Space Development Promotion Act of 2005, Outer Space Damage Compensation Act of 2008. The Outer Space Treaty of 1967 regulates the international responsibility for national activities in outer space, the national tort liability for damage by space launching object, the national measures for dispute prevention and international consultation in the exploration and use of outer space, the joint resolution of practical questions by international inter-governmental organizations in the exploration and use of outer space. The Liability Convention of 1972 regulates the absolute liability by a launching state, the faulty liability by a launching state, the joint and several liability by a launching state, the person claiming for compensation, the claim method for compensation, the claim period of compensation, the claim for compensation and local remedy, the compensation amount for damage by a launching state, the establishment of the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea regulates the definition of space damage, the relation of the Outer Space Damage Compensation Act and the international treaty, the non-faulty liability for damage by a launching person, the concentration of liability and recourse by a launching person, the exclusion of application of the Product Liability Act, the limit amount of the liability for damage by a launching person, the cover of the liability insurance by a launching person, the measures and assistance by the government in case of occurring the space damage, the exercise period of the claim right of compensation for damage. The Liability Convention of 1972 should be improved as follows: the problem in respect of the claimer of compensation for damage, the problem in respect of the efficiency of decision by the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea should be improved as follows: the inclusion of indirect damage into the definition of space damage, the change of currency unit of the limit amount of liability for damage, the establishment of joint and several liability and recourse right for damage by space joint launching person, the establishment of the Space Damage Compensation Review Commission. The 1998 Final Draft Convention on the Settlement of Disputes Related to Space Activities of 1998 by ILA regulates the binding procedure and non-binding settlement procedure for the disputes in respect of space activity. The non-binding procedure regulates the negotiation or the peaceful means and compromise for dispute settlement. The binding procedure regulates the choice of a means among the following means: International Space Law Court if it will be established, International Court of Justice, and Arbitration Court. The above final Draft Convention by ILA will be a model for the innovative development in respect of the peaceful settlement of disputes with reference to space activity and will be useful for establishing the frame of practicable dispute settlement. Korea has built the space center at Oinarodo, Goheung Province in June 2009. Korea has launched the first small launch vehicle KSLV-1 at the Naro Space Center in August 2009 and June 2010. In Korea, it will be the possibility to be occurred the problems relating to the international responsibility and dispute settlement, and the liability for space damage in the course of space activity. Accordingly the Korean government and launching organization should make the legal and systematic policy to cope with such problems.

• Journal of the Korea Society of Computer and Information
• /
• v.19 no.4
• /
• pp.139-147
• /
• 2014

Medical disputes the problem that occurs essentially among the rapidly increasing of the demand for health care and the attention of the public health. The subject of dispute is mostly criminal penalties and civil redress due to a physician's medical malpractice, resolved by agreement was prioritized. They trying to solve through the litigation and exercise the skills. But, the lack of clear standards and related legislation make difficult to solve the problem. for this, "The Act of Medical Malpractice Damage's Relief and Mediation for Medical Dispute Resolution" (Medical Disputes Adjustment Act) was enacted in April 7, 2011 and performed in Apr. 8, 2012. To solve the problem autonomously between the parties. It is the legislative intent such as mediation or arbitration to solve the conflict between the parties. But there are some problems that examined from the perspective of constitutional review with the criminal and civil problems. Therefore, this paper will find out the legal issues about Medical Dispute Adjustment Act and the constitutional and civil issues. And want to expect to be prepared the more stable and efficient solution of medical disputes.

• The Korean Journal of Air & Space Law and Policy
• /
• v.5
• /
• pp.53-75
• /
• 1993

This article is concerned with the comment on "Some New Problems of International Aviation Security-Considerations Forcused on its Legal Aspects". Ever since 1970, in addition to the problem of failure to accept the Tokyo, Hague and Montreal Conventions, there has been also the problem of parties to them, failing to comply with their obligations under the respective treaties, in the form especially of nominal penalties or the lack of any effort to prosecute after blank refusals to extradite. There have also been cases of prolonged detention of aircraft, passengers and hostages. In this regard, all three conventions contain identical clauses which submit disputes between two or more contracting States concerning the interpretation or application of the respective conventions to arbitration or failing agreement on the organization of the arbitration, to the International Court of Justice. To the extent to which contracting States have not contracted out of this undertaking, as I fear they are expressly allowed to do, this promision can be used by contracting States to ensure compliance. But to date, this avenue does not appear to have been used. From this point of view, it may be worth mentioning that there appears to be an alarming trend towards the view that the defeat of terrorism is such an overriding imperative that all means of doing so become, in international law, automatically lawful. In addition, in as far as aviation security is concerned, as in fact it has long been suggested, what is required is the "application of the strictest security measures by all concerned."In this regard, mention should be made of Annex 17 to the Chicago Convention on Security-Safeguarding International Civil Aviation against Acts of Unlawful Intereference. ICAO has, moreover, compiled, for restricted distribution, a Security Manual for Safeguarding Civil Aviation Against Acts of Unlawful Interference, which is highly useful. In this regard, it may well be argued that, unless States members of ICAO notify the ICAO Council of their inability to comply with opecific standards in Annex 17 or any of the related Annexes in accordance with Article 38 of the 1944 Chicago Convention on International Civil Aviation, their failure to do so can involve State responsibility and, if damage were to insure, their liability. The same applies to breaches of any other treaty obligation. I hope to demonstrate that although modes of international violence may change, their underlying characteristics remain broadly similar, necessitating not simply the adoption of an adequate body of domestic legislation, firm in its content and fairly administered, but also an international network of communication, of cooperation and of coordination of policies. Afurther legal instrument is now being developed by the Legal Committee of ICAO with respect to unlawful acts at International airports. These instruments, however, are not very effective, because of the absence of universal acceptance and the deficiency I have already pointed out. Therefore, States, airports and international airlines have to concentrate on prevention. If the development of policies is important at the international level, it is equally important in the domestic setting. For example, the recent experiences of France have prompted many changes in the State's legislation and in its policies towards terrorism, with higher penalties for terrorist offences and incentives which encourage accused terrorists to pass informations to the authorities. And our government has to tighten furthermore security measures. Particularly, in the case an unarmed hijacker who boards having no instrument in his possession with which to promote the hoax, a plaintiff-passenger would be hard-pressed to show that the airline was negligent in screening the hijacker prior to boarding. In light of the airline's duty to exercise a high degree of care to provide for the safety of all the passengers on board, an acquiescence to a hijacker's demands on the part of the air carrier could constitute a breach of duty only when it is clearly shown that the carrier's employees knew or plainly should have known that the hijacker was unarmed. The general opinion is that the legal oystem could be sufficient, provided that the political will is there to use and apply it effectively. All agreed that the main responsibility for security has to be borne by the governments. A state that supports aviation terrorism is responsible for violation of International Aviation Law. Generally speaking, terrorism is a violation of international law. It violates the sovereign rights of states, and the human rights of the individuals. We have to contribute more to the creation of a general consensus amongst all states about the need to combat the threat of aviation terrorism. I think that aviation terrorism as becoming an ever more serious issue, has to be solved by internationally agreed and closely co - ordinated measures.

• The Korean Journal of Air & Space Law and Policy
• /
• v.28 no.2
• /
• pp.223-258
• /
• 2013

1967 Outer Space Treaty(Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies; OST) is a treaty that forms the basis of international space law. OST is based on the 1963 Declaration of Legal Principles Governing the Activities of States in the Exploration and Use of Outer Space announced by UNGA resolution. As of May 2013, 102 countries are states parties to OST, while another 27 have signed the treaty but have not completed ratification. OST explicitly claimed that the Moon and Other Celestial Bodies are the province of all mankind. Art. II of OST states that "outer space, including the Moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means", thereby establishing res extra commercium in outer space like high seas. However 1979 Moon Agreement stipulates that "the moon and its natural resources are the Common Heritage of Mankind(CHM)." Because of the number of the parties to the Moon Agreement(13 parties) it does not affect OST. OST also established its specific treaties as a complementary means such as 1968 Rescue Agreement, 1972 Liability Convention, 1975 Registration Convention. OST bars states party to the treaty from placing nuclear weapons or any other weapons of mass destruction in orbit of Earth, installing them on the Moon or any other celestial body, or to otherwise station them in outer space. It exclusively limits the use of the Moon and other celestial bodies to peaceful purposes and expressly prohibits their use for testing weapons of any kind, conducting military maneuvers, or establishing military bases, installations, and fortifications. However OST does not prohibit the placement of conventional weapons in orbit. China and Russia submitted Draft Treaty on the Prevention of the Placement of Weapon in Outer Space and of the Threat or Use of Force against Outer Space Objects(PPWT) on the Conference on Disarmament in 2008. USA disregarded PPWT on the ground that there are no arms race in outer space. OST does not have some articles in relation to current problems such as space debris, mechanisms of the settlement of dispute arising from state activities in outer space in specific way. COPUOS established "UN Space Debris Mitigation Guidelines" based on "IADC Space Debris Mitigation Guidelines" and ILA proposed "International Instrument on the Protection of the Environment from Damage Caused by Space Debris" for space debris problems and Permanent Court of Arbitration(PCA) established "Optional Rules for Arbitration of Disputes Relating to Outer Space Activities" and ILA proposed "1998 Taipei Draft Convention on the Settlement of Space Law Dispute" for the settlement of dispute problems. Although OST has shortcomings in some articles, it is very meaningful in international law in considering the establishment of basic principles governing the activities of States in the exploration and use of outer space, including the Moon and Other Celestial Bodies. OST established the principles governing the activities of states in the exploration and use of outer space as customary law and jus cogens in international law as follows; the exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind; outer space shall be free for exploration and use by all States; outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means. The principles of global public interest in outer space imposes international obligations erga omnes applicable to all States. This principles find significant support in legal norms dealing with following points: space activities as the "province of all mankind"; obligation to cooperate; astronauts as envoys of mankind; avoidance of harmful contamination; space activities by States, private entities and intergovernmental organisations; absolute liability for damage cauesd by certain space objects; prohibition of weapons in space and militarization of the celestial bodies; duty of openness and transparency; universal application of the international space regime.