• Management & Information Systems Review
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• v.9
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• pp.165-177
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• 2002

The purpose of this comparative study is to compare and evaluate international arbitration and forum selection agreements. Recent decades have seen an unparalleled expansion of global trade and investment. Business enterprises of every description ann find themselves entangled in legal proceedings with foreign companies or government entities. Thus, the costs of these proceedings and the consequences of losing are often substantial. Almost, every international commercial controversy poses a critical preliminary question - 'where, and by whom, will this dispute be decided?' the answer to this question often decisively affects a dispute's eventual outcome. It can mean the difference between winning and losing. between de minimis damages and a multimillion dollar award. The same dispute can have materially different outcomes in different forums. Because of the importance of forum selection, parties to international contracts often include contractual dispute resolution provisions in their agreements. These provisions significantly reduce the uncertainties inherent in international commercial disputes, and can offer a substantial measure of partisan advantage. as a consequence, it is almost always advisable to include a contractual dispute resolution provision in any international contract. These provisions typically take the form of : (1) forum selection clauses, or (2) arbitration agreements.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.37
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• pp.217-250
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• 2008

The International Ship and Port Facility Security (ISPS) Code which was developed as the main response of the shipping sector to the miserable event of 11 September 2001 came into effect on 1 July 2004. The ISPS Code designed to detect and eliminate security threats affecting ships and port facilities used in international trade will significantly impact not only on the management and operation of the shipping industry but also on maritime law despite the fact that it is the regulatory framework of public law. It is expected that implementing the ISPS Code will contribute to reinforcement of maritime security on the one hand. However, on the other hand, more intensified security inspection and control measures of port states will also cause delay and additional costs which cause uncertainty in allocating security risk and cost between the contracting parties. Therefore, it is desire to insert new security clause dealing with main security issues or adapt existing clauses to new shipping environments to minimize disputes.

• Journal of Arbitration Studies
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• v.14 no.1
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• pp.157-184
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• 2004

Dispute plays a key role in maintaining the desirable trading performance. There are many problems such as problems of enforcement of arbitral award and the uncertainty of legal system in PRC. Therefore, the Korean trading companies with Chinese companies should be more concerned with mediation. It's because mediation are more likely to be effective than arbitration and litigation to resolve disputes with chinese companies. This article investigates some differences of mediation between ROK and PRC, and suggests the following ways to resolve dispute. First, the Korean companies should utilize the mediation in small claim but arbitration in big claim. Second, Write a contract and insert mediation clause in BCC or the standard arbitration clause in KCAB. Third, the companies should be more concerned with prevention of dispute than dispute resolution. In conclusion, to expand mediation system into an effective dispute resolution system, The Korean Dispute Resolution Center should be established.

• Acta Via Serica
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• v.5 no.2
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• pp.91-110
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• 2020

This paper traces the trajectory of a variety of complicated economic and political developments between China and India - the world's most ancient civilizations connected by rich history. These recent developments, which are heavily acrimonious and include military clashes involving loss of lives, have greatly damaged bilateral relations. The paper examines the reasons behind the bilateral relations dipping to new lows. Aside from specific bilateral disputes like outstanding border problems, China-India relations have been affected by global and regional developments. The paper identifies rising tensions between the U.S. and China, the evolution of the Belt and Road Initiative, and the growth of the Indo-Pacific construct, as the reasons that have expanded distance and mistrust between the two countries. Both China and India are now part of country coalitions aiming to marginalize each other's strategic influences. The paper argues that such efforts by them are going to impact countries in their neighbourhood - such as in Central Asia - by forcing them to make complex choices in the areas of trade engagement and technological development.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.55-77
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• 2008

The purpose of this paper is to make a research on the administration and practical problems of the arbitral organization called "uth-North Commercial Arbitration Commission". The Arbitration Commission shall be set up under the South-North Agreements officially called "reement on Settlement Procedure of Commercial Dispute" and "reement on Organization and Administration of the South-North Arbitration Commission" between the South and the North of Korea. A variety means of dispute settlement including friendly consultations, conciliation and arbitration called Alternative Dispute Resolution(ADR) will be used frequently and institutionally to settle commercial disputes and conflicts arising from economic transactions between the South and the North of Korea. Under the circumstances, it is becoming a problem of vital importance how to operate the Arbitration Commission for the prompt and effective settlement of the South-North commercial disputes. First of all, the South and the North of Korea should recognize the availability of prompt and effective means of dispute resolution such as arbitration and conciliation to be made by the Arbitration Commission would promote the orderly growth and encouragement of th South-North trade and investment, for which the following measures should be taken as soon as possible : 1. Enactment of the South-North Arbitration Rules. 2. Designation of the arbitral institution by North-Korean side. In this connection, the Korean Commercial Arbitration Board(KCAB) was already designated officially as the arbitral organization of South Korean side as of April 17, 2007. 3. Arbitration shall be held in the place where the respondent has his domicile, in case that both parties fail to agree as to the place of arbitration. 4. Permission of a third country arbitration in case that both parties agree to do so. 5. To become a member country of international arbitration agreements including the New York Convention.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.45-65
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• 2009

China and Taiwan had opened complete Three Linkages era December 2008, in the 59 years. The improvement of two countries' relationship is expecting to spur two countries more on the economy exchange. However the increasement of investment and trade between two countries will increase disputes to ratio. In order to settle the disputes related to economy between two countries, the most favorite way is to use arbitral system which involve less public power. After China and Taiwan recognized this point, they announced provisions which allow to solve controversies through the arbitration between parties of two countries since 1980, and prepared legal basis for dispute settlement between two countries. However, because China and Taiwan do not authorize each party as a country, the execution application made by each party based on New York Convention related to foreign arbitral awards cannot be approved. Because of these kind of reasons China and Taiwan should agree in order to guarantee mutual execution of arbitral awards which is an ultimate purpose of arbitration. However because of the political situation of two countries there are provisions related to execution for arbitral awards decided by each party. In this paper, I separated the provision related to mutual execution for arbitral awards of each party of China and Taiwan, examined exposed problems, and suggested ways to improve. It can support some of assistance and implication to establish basis of arbitral system between South Korea and North Korea and to suggest direction to derive through this kind of study.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.147-169
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• 2009

This paper deals with disputes incurred from the CISG provisions in relation with the conformity of goods with a view to finding the general way of approach made by the court and arbitration tribunal in the case laws for the interpretation of CISG based on 6(six) cases thereon. Throughout this study, it has been noted that the German Supreme Court devoted most in creating the general principle of CISG interpretation in relation with national compulsory law of regulation applicable on the conformity of goods. It was New Zealand mussels case in which the German supreme court decided that the exporting country's compulsory law of regulation would be applied in determining the conformity of goods. Furthermore, German supreme court added that CISG does not place an obligation on the exporter to supply goods, which conform to all statutory or other public provisions in force in the import state unless the same provisions exist in the export State as well, or the importer informed the exporter about such provisions existing in the import state, or the exporter had knowledge of the provisions due to special circumstances. It is stipulated in CISG that the goods conform with contract if they are fit for the purpose for which goods of the same description would ordinarily be used. When questions arise concerning matters governed by the CISG that are not expressly defined in the CISG, the question is to be settled in conformity with general principles on which the convention is based. Only when such a general principle cannot be found may the tribunal turn to other sources such as UNIDROIT Principles, Principles of European Contract Law and Lex Mercatoria, etc. Interpretation of CISG should be autonomous, in the sense that it should not depend on principles and concepts derived from any national legal system. Even where a CISG rule is directly inspired by domestic law, the court should not fall back on its domestic law, but interpret the rule by reference to the CISG with a view to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade.

• Journal of Arbitration Studies
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• v.26 no.2
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• pp.27-44
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• 2016

The use of program formats has slowly but surely developed into an important component of the television industry. This article examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. From both the social and commercial standpoints, television formats are valuable creations. Understanding the two products, the paper and program stages, of a television format and their respective markets, is fundamental to discussions of its legal protection. Interestingly, under current law, the less-developed stages of the process (program ideas and paper formats) are awarded more protection than the aired program format, which accumulates higher levels of investment, creativity, and expression. Internal industry mechanisms, such as vertical integration, damage to reputation, and industry institutions, exist in both markets and are still able to control and influence members' behavior to some extent. However, while the influence of internal industry mechanisms is still strong in the paper format market, in the program format market, which continues to grow, such mechanisms have weakened, amplifying the importance of a clear legal system. The absence of protection will certainly not completely eliminate the production of new program formats. However, these factors do not add up to a case against protection. The changes in the program format market in the last two decades support the theory that the overall effect of providing legal protection for TV formats would promote beneficial competition and encourage more original creations. The underlying question for television formats should not be whether to protect but rather how.

• Journal of Arbitration Studies
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• v.19 no.3
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• pp.25-42
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• 2009

That occur in international trade disputes between the parties without resorting to a court trial on the basis of principle of government by the parties to resolve the dispute resolution in general (Alternative Disputes Resolution: ADR) agreed to, reconciliation, coordination, mediation and other methods are. Here, unlike arbitration and other dispute resolution arbitrator, the court confirmed the arbitration award came from the judge and the same shall become effective in doing international commerce dispute resolution methods are widely used. Arbitration Agreement is a contractual dispute, regardless of whether a certain law there arise about the relationship between the parties, Currently exists, future conflicts can arise in whole or in part by the arbitration agreement is to be resolved. Arbitration agreement include: the effects of out of contract arbitration proceedings, the court does not want the progress of the dispute referred to arbitration proceedings to the effect, and the presence of the parties to the arbitration agreement does not claim to knowing the defense plea that Appeals ticket of destruction that have the effect of demurrer, that the arbitration agreement are rebuttal to the rebuttal of prozesshindernde Einrede and the mediation of a plea on the merits when the first defense must be submitted to the arbitration proceedings in which the applicant until the arbitration award determined that the property dispute to court for water conservation measures to dispose of the watch was in effect for arbitration in the contract. In addition, the arbitration agreement and the court sentenced the same kinds of effects that resolved the final effect, especially at the same time the effect of foreign recognition and enforcement of the decision regarding the New York Convention arbitration award based on the recognition and enforcement of domestic and international effects are being recognized. Consequently, the arbitration agreement to take effect a valid arbitration agreement exists is determined by whether or not staying. Therefore, agreements between individual university entrance exams based on the company signed a contract regarding the effect of arbitration first, associated with individual university entrance exams, and the leading research and analysis, review, and examine the general concept of the arbitration agreement after the arbitration agreement between the parties focuses on information about the effects of study to contribute to the activation of the arbitration system is aimed at the individual university entrance exams.

• Journal of Arbitration Studies
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• v.14 no.1
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• pp.133-156
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• 2004

The rapid development of the internet may not have occurred without techniques of linking and framing, which provide users flexible and easy access to other website. These techniques have enabled internet users to navigate the internet efficiently and sort through the products, services and information available on the internet. The Advent of the global information structure and the do-called EC revolution raise countless new issues and questions. There are no limitations regulating the expressions on the cyberspace due to internet's of quality anonymity? diversity? spontaneity. Therefore, the freedom of speech is expanded in both areas of time and space, which was impossible with the old communicating system. Although online technology raises many new legal issues, the law available to help us resolve them, at least today, is largely based on the world as it existed before online commerce became a reality. Thus the challenge is to predict how these new legal issues may be resolved using the current law. As a result of the drastic change of the environment for international trade of which that has taken took place in parallel with the global information technology revolution on a global basis, the scope of issues to be addressed which should be resolved by the conflict of laws principles has been remarkably expanded, and various new issues of an entirely which are quite new in its type and nature have arisen been raised. Further more in addition, the old act prior act was regarded as insufficient in that it lacked rules on international governing law to adjudicate, or international adjudicatory governing law, where as the expectation of the public was that the private international law should function as the basic law of the legal relational encompassing rules on governing law given the increase of It international disputes. for the move the private international law has also attracted more attention from the korean.