• Journal of Arbitration Studies
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• v.26 no.3
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• pp.67-91
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• 2016

In an era where the international investment and trade between Korea and China grow daily, the importance of international arbitration cannot be overstated. The Korean Arbitration Law was enacted with reference to the UNCITRAL Model Law. When the Chinese Arbitration Law was being enacted, the UNCITRAL Model Law was also referred to, but there are some discrepancies between the two. This article conducts comparative analysis based on the Korean and the Chinese Arbitration Laws, the Chinese Civil Procedure Law and the KCAB and the CIETAC arbitration rules. In order to adopt the UNCITRAL Model Law amended in 2006, Korea revised its Arbitration Law in 2016. The revised Law includes a more comprehensive legal regime regarding interim measures, emergency arbitrator, etc. In China, the enforcement of foreign-related arbitral awards and foreign arbitral awards is carried out mainly by intermediate people's courts. In China, the report system to the higher people's court for refusing the enforcement of foreign-related arbitral awards and for refusing the recognition or enforcement of foreign arbitral awards has the effect of safeguarding foreign-related arbitral awards and foreign arbitral awards in China. Both Korea and China joined the New York Convention, and domestic courts may refuse the recognition and enforcement of foreign arbitral awards according to the New York Convention.

• Journal of Arbitration Studies
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• v.21 no.3
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• pp.115-136
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• 2011

In the past, Chinese arbitral system and Chinese arbitral associations were avoided by international society due to the cases which Chinese court rejected the recognition and enforcement of foreign arbitral awards based on rural protection. Especially Chinese court adjudicated to reject the recognition and enforcement of arbitral awards by interpreting public policy broadly. The abuse of public policy by court threats the existence of commercial arbitration system. Under this awareness, the author figured out Chinese court shows what kind of attitude about public policy of Chinese court in the present through analyzing the cases about rejection of enforcement in Chinese arbitral awards in order to analyze whether Chinese court still maintain the negative attitude like past or there exist changes with public policy which is one of the rejection reasons of recognition and enforcement in foreign arbitral awards as the central figure. Chinese court behaved in an uncooperative attitude about arbitral awards like that it reached a verdict to reject the enforcement of arbitral awards by reason of violation in public policy about several foreign arbitral awards at the beginning stage of establishing arbitration law. However, the situation of abuse in public policy was improved a lot by Chinese prime court which enforces pre-inspection system about judgment of rejection of enforcement in arbitral awards. So, there is no case about rejecting the approval and enforcement of arbitral awards by reason of violation in public policy by Chinese court except Yongning Co. case. Moreover, Chinese court got the trust and support from other countries through reinforcement of applied standard. However, Chinese court had been expressed concern from international society because they highly applied public policy and rejected to enforce arbitral awards in the recent case of Yongning Co.. Therefore, this study examined whether it is appropriate to apply public policy of Chinese court in the case of Yongning Co., and then I concluded that. Although Yongning Co. case is the first case which Chinese prime court agrees with public policy by reason of rejection of approval and enforcement in foreign arbitral awards, in my opinion, it doesn't mean that Chinese court has fundamental change in basic attitude and position about the approval and enforcement of foreign arbitral awards. Chinese court keeps the cautious uses of public policy in legal judgment of foreign arbitral awards and it looks like implementing the obligation in regulation of New York Convention sincerely.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.61-86
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• 2011

Korea Supreme Court has given thirty-nine time's judgments on enforcement of Arbitral awards for thirty-six arbitration cases and made four time's decision on the arbitration cases since Korea arbitration act was enacted in 1966. Most of the arbitration cases appealed to the Supreme Court was to obtain the recognition and enforcement of arbitral awards or to set aside the arbitral awards according to the Korea arbitration Act article 36 and article 37, by reason of (a) a party to the arbitration agreement was under some incapacity under the law applicable to him or the said agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, (b) a party making the application was not given proper notice of the appointment of the arbitrator or arbitrators or of the arbitral proceedings or was otherwise unable to present his case (c) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, 5 cases of these arbitral awards were refused to obtain the enforcement of Arbitral awards and have been cancelled finally by the Supreme Court only by the New York Convention of 1958.

• Journal of Arbitration Studies
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• v.20 no.3
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• pp.3-24
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• 2010

In the approaching 21th century, the outstanding development in international trade and commerce has established arbitration as the preferred form of dispute resolution on international business transaction. Because the form of commercial dispute becomes more complicated and varied with the quantitative increase of them, the reasonable and rapid settlement of them must be the important problem simultaneously. In this article, the author discusses various issues on the recognition and enforcement of an foreign arbitral awards under Korean Arbitration Act, which is modeled after the Model Law on International Commercial Arbitration of the UNCITRAL of 1985. The Dec. 31, 1999 amendment to the Korean Arbitration Act admits the basis for enforcement of foreign arbitral awards rendered under United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958(commonly known as the New York Convention). Korea has acceded to the New York Convention since 1973. When acceding to the convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of anther Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provision relating to the enforcement of arbitral awards falling under the New York Convention consists of Article III, IV, V. In particular, Article V of the New York Convention enumerates the grounds for refusal of recognition foreign arbitral awards. The grounds are separated into two categories : One that abides by procedures and the others are based on national legal sovereignty. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of awards. Because Korea requires enforcement to be based on a judgement, the result is that arbitral of award holders are forced to institute domestic litigation.

• Journal of Arbitration Studies
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• v.27 no.1
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• pp.131-160
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• 2017

When any investment dispute arises, the investor has to exhaust the local remedies available in the host state, and according to the agreement between the parties, the investor is filed to the ICSID arbitral tribunal to seek arbitral awards. At this time, if the arbitral tribunal decides that the investment agreement has been violated, it normally demands the host state to provide financial compensations to the investor for economic loss. According to the rules of the investment agreement, the host state is supposed to fulfill the arbitral awards voluntarily. If it is unwilling to provide financial compensations according to the arbitral awards, however, the investor may ask the domestic court of the host state for the recognition and enforcement of arbitral awards. In addition, if the host state is unwilling to fulfill arbitral awards on account of state immunity, the investor may ask his own country (state of nationality) for diplomatic protection and urge it to demand the fulfillment of arbitral awards. Effectiveness for pecuniary damages, a means to solve problems arising in the enforcement of investment arbitral awards, is found to be rather ineffective. For such cases, this study suggests an alternative to demand either a restitution of property or a corrections of violated measures subject to arbitral awards.

• Journal of Arbitration Studies
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• v.27 no.3
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• pp.53-76
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• 2017

Korean businesses, and their legal representatives, have observed the improvements of enforcement of commercial judgments through arbitration over traditional collections litigation in U.S. Courts-due to quicker proceedings, exceptional cost savings and more predictable outcomes-in attaching assets within U.S. jurisdictions. But how are the 2016 interim measures implemented by the Arbitration Act of Korea utilized to avoid jurisdictional and procedure pitfalls of enforcement proceedings in the Federal Courts of the United States? Authors examine the necessary prerequisites of the U.S. Federal Arbitration Act as adopted through the New York Convention, to which Korea and the U.S. are signatories, as distinguished from the Panama Convention. Five common U.S. arbitration institutions address U.S. "domestic" disputes, preempting U.S. state law arbitrations, while this article focuses on U.S. enforcement of "international" arbitration awards. Seeking U.S. recognition and enforcement of Korean arbitral awards necessitates avoiding common defenses involving due process, public policy or documentary formality challenges. Provisional and conservatory injunctive relief measures are explored. A variety of U.S. cases involving Korean litigants are examined to illustrate the legal challenges involving non?domestic arbitral awards, foreign arbitral awards and injunctive relief. Suggestions aimed toward further research are focused on typical Korean business needs such as motions to confirm foreign arbitration awards, enforce such awards or motions to compel arbitration.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.51-88
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• 2006

The obligation on a national court to recognize and enforce arbitral awards as provided in Article III New York Convention, which both Korea and China have ratified, is subject to limited exceptions. Recognition and enforcement will be refused only if the party against whom enforcement is sought can show that one of the exclusive grounds for refusal enumerated in Article V(1) New York Convention has occurred. The court may also refuse enforcement ex officio if the award violates that state's public policy. This article explores the circumstances where arbitral awards may be refused enforcement under the Korean and Chinese arbitration laws. It first analyzes the relevant statutory provisions. In Korea and China, which have adopted the UNCITRAL Model law, the grounds of challenge are exhaustively defined within their respective arbitration laws. According to their arbitration laws, an arbitral award may be set aside if a party making the application proves that (i) a party to the arbitration agreement was under some incapacity or the agreement is not valid under the applicable law, (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case, (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration, or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. An arbitral award may also be set aside ex officio by the court if the court finds that (i) the subject-matter of the dispute is not capable of settlement by arbitration under the applicable law or (ii) the award is in conflict with the public policy. This article then reviews relevant judicial decisions rendered in Korea and China to see how the courts in these countries have been interpreting the provisions specifying the grounds for challenging arbitral awards. It concludes that the courts in Korea and China rarely accept challenges to arbitral awards, thereby respecting the mandate of the New York Convention.

• Journal of Arbitration Studies
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• v.25 no.2
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• pp.19-47
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• 2015

International arbitration is an increasingly popular means of alternative dispute resolution for cross-border commercial transactions. The primary advantage of international arbitration over court litigation is enforceability. An international arbitration award is enforceable in most countries in the world. Especially, statistics indicate of ASEAN such as Malaysia and Singapore that the vast majority of defeated companies comply with the terms of international arbitral awards against them or settle soon after the award is rendered. Unlike Malaysia and Singapore, in Indonesia, there are several grounds for refusal of enforcement of an award including where both the nature of the dispute and the agreement to arbitrate do not meet the requirements set out in the Arbitration Law. Because Indonesia does not acknowledge decisions of foreign courts, theoretically they could enforce an international arbitral award which was set aside by the court in the seat of arbitration. This paper introduces the legal system and cases of recognition and enforcement of foreign arbitration awards in ASEAN, especially Malaysia, Singapore, and Indonesia. Secondly, by comparing their law and cases, the paper emphasized the international suitability and global fitness in involved in recognition and enforcement of foreign arbitration awards.

• Journal of Arbitration Studies
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• v.23 no.2
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• pp.141-164
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• 2013

The current Korean Arbitration Act (KAA) ${\S}37(2)$ requires that a formal copy of an arbitral award or a duly certified copy thereof and the original arbitration agreement or a duly certified copy thereof be produced for the recognition and enforcement of a arbitral award. But as the KAA provides that the recognition and enforcement of a foreign arbitral award to which the New York Convention applies shall be granted in accordance with the Convention, the duly authenticated original award should be produced instead of a formal copy in that case. The provision on the documents to produce for the recognition and enforcement of an arbitral award is set to establish a reasonable and transparent standard and to facilitate the recognition and enforcement of awards by prohibiting parochial refusal of the recognition and enforcement on the grounds of formalities. Therefore it is necessary to simplify those documents according to the internationally acknowledged standard. It would be desirable to amend KAA ${\S}37(2)$ to require only "the original arbitral award or a copy thereof" without authentication or certification and a translation into Korean without any condition, adopting the 2006 amendment to the UNCITRAL Model Law on International Commercial Arbitration.

• Journal of Arbitration Studies
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• v.32 no.3
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• pp.47-70
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• 2022

This paper studies legal regulation of the public policy exception in the Russian Federation and domestic judicial practice on the issue. It reviews current legislation and analyzes a number of recent court cases where an arbitral award rendered by a foreign arbitration body was refused recognition and enforcement based on public policy violation. By doing so, it contributes to the knowledge on the concept of public policy in the Russian legal system and how public policy can affect the process of recognition and enforcement of foreign arbitral awards on its territory. The review of court cases demonstrates different aspects of how the public policy exception can be applied by Russian arbitrazh courts. Such decisions can provide a clearer picture of the kinds of situation that can lead to invoking the public policy clause by the court. Also, it is of practical value as persons preparing to file a claim or to be a defendant in a Russian court can be required to present existing court decisions in support of their claim or defence.