• Journal of Arbitration Studies
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• v.25 no.1
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• pp.25-46
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• 2015

Cross-border consumer disputes are on the increase as cross-border trade between consumers and businesses continues to grow. Cross-border consumer disputes are difficult to solve, because there are different languages, laws and institutions between the parties. These consumer disputes can be solved more easily by Online Dispute Resolution (ODR) in comparison with utilizing court processes. ODR is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR). On 18 June 2013, the new legislation on Alternative Dispute Resolution and Online Dispute Resolution has been published - the "Directive on Consumer ADR and Regulation on Consumer ODR". The new legislation on ADR and ODR will allow consumers and traders to solve their disputes without going to court, in a quick, low-cost and simple way. The United Nations working group for online dispute resolution of cross-border electronic commerce transactions (UNCITRAL Working Group III) has been underway since 2010 to continue its work on procedural rules for ODR.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.37
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• pp.133-158
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• 2008

The purpose of this article is to examine the "Annulment" of ICSID Arbitration Award. Most of the international conventions provide for arbitration as the preferred method of dispute settlement. In general they either provide for ad hoc arbitration under the UNCITRAL Rules or under the rules of an acceptable arbitration institution, e.g. ICC, AAA, LCIA and in particular ICSID. The most distinctive feature of ICSID arbitration is the self-contained and exhaustive nature of its review procedures. Unlike other arbitration regimes, control is exercised by internal procedures rather than by the courts. Remedies against the award are limited to those provided for in the Convention and do not include court involvement. Especially, the annulment of the ICSID award by an ad hoc committee must be considered as jeopardizing ICSID Arbitration because it clearly depart from the current trends of international commercial arbitration which limits any kinds of judicial review and excludes any kinds of review on the merits. I wish that the future decisions of the ad hoc committees will restore a narrow scope to the ICSID procedure of annulment in order not to endanger the ICSID Arbitration mechanism.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.215-238
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• 2012

This paper is to review the interim measures of arbitral tribunals in international commercial arbitration and to compare the emergency arbitrator systems of international arbitration institutions including the ICDR, SCC, SIAC, ACICA, and ICC. Most arbitration legislation and arbitration rules permit the arbitral tribunal to grant orders for interim measures of protection. Orders for interim measures by the arbitral tribunal are not self-enforcing. However, the revised articles with regard to interim measures of UNCITRAL Model Law of 2006 are regarded to contribute significantly to the effectiveness of interim measures in international commercial arbitration. A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal may make an application for such measures. Major international arbitration institutions have their own rules and provisions for the emergency arbitrator system, which was set forth first by the ICRD in 2006. The application requirements for emergency arbitrators are almost the same. However, there are significant differences in details such as appointments and applications for challenging emergency arbitrators, the process and form of the emergency arbitrator's decision, etc. Therefore, it will be necessary to consider these differences for more desirable emergency arbitrator proceedings in Korea.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.41
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• pp.135-165
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• 2009

It is not difficult to understand from laws and practices in arbitration area that arbitrators appointed have as many rights as their duties to do their performing duties especially to participate in the proceeding and deliberations of the arbitral process. However, sometimes can be happened that an arbitrator who was appointed by a party, refuses to participate in the proceeding or resign during the arbitral process. Generally, in the case, it is provided that the arbitrator who fails to act can be replaced by a substitute arbitrator. When it is decided to change an arbitrator, the appointment of an substitute arbitrator is likely to cause time delay, high cost with inconvenience. And also it is to be considered for additional cost and delay from possible need for repeating the hearings that were held at former arbitral tribunal. Sometimes, a party want to delay intentionally the arbitration process by using right for challenging arbitrator or designing with an arbitrator who was appointed by the party. That is why the reason it has been discussed for allowing the truncated tribunal that the remaining arbitrators that is named as truncated tribunal are permitted to complete the proceeding and issue decisions or arbitral awards. Unfortunately there are uncertain views on the validity of arbitral proceeding or recognitions and enforcement of truncated tribunal decisions in international commercial arbitration. In this article it is focusing on discussing truncated tribunal's benefits or barriers and problems through comparing with famous arbitral rules of international arbitral institutes including rules of UNCITRAL, LCIA, KCAB and the revising draft arbitration rule of UNCITRAL.

• Journal of Arbitration Studies
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• v.12 no.1
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• pp.3-54
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• 2002

When the ruling of Foreign Arbitral Awards contradicts the public policy of the enforcement state, it can be a ground for a refusal to enforce the ruling. New York Convention V section 2, UNCITRAL section 36, and Korean arbitration law section 36 confirm this principle. The final ruling of international arbitral awards should be respected according to the international convention or the principle of reciprocity, which cancel out the above principle: when the ruling contradicts the country's public policy, it can be refused to enforcement. Since the Helsinki General Convention, ILA have studied upon it and presented the final report and recommendation during the 2002 New Delhi General Convention. In it, firstly, the finality of awards rendered in the context of international commercial arbitration should be respected save in exceptional circumstances. Secondly, every state is recommended the “international public policy”, on which it can refuse to follow the ruling of international arbitral awards, and advised to respect it as far as possible.

• Journal of Arbitration Studies
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• v.23 no.4
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• pp.55-76
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• 2013

This study aims to analyze the main features of Mongolian arbitration system compared with Korean Arbitration Law which was revised under the UNCITRAL Arbitration Model Law. On the basis of this comparative study, certain differences are suggested: First, the environment of Mongolian arbitration is still insufficient in terms of its operation and usage at the international level. Second, the Mongol National Arbitration Court has established Ad-hoc Arbitration Rules and has promoted Ad-hoc Arbitration although it is an institutional arbitration organization. Third, the arbitration objects are defined as the types of tangible and intangible assets in Mongolia which are different from those of the Korean Arbitration Law. Accordingly, court and officer disputes, family disputes, labor-management relations, and criminal matters are covered by the arbitration objects. Fourth, Mongol Arbitration Law specifies the following persons disqualified for arbitrator appointment: the member of the Constitutional Court, judge, procurator, inquiry officer, investigator, court decision enforcement officer, attorney, or notary who has previously rendered legal service to any party of the disputes, and any officials who are prohibited by laws to be engaged in positions above the scope of their duties. Fifth, the arbitrator selection and appointment criteria should be documented, and the arbitrator should have the ability to resolve the disputes independently and fairly and achieve concord from both parties. Sixth, if there is no agreement between the parties, the arbitration language should be Mongolian, and the arbitral tribunal has no power to decide on it. Seventh, despite the agreement for a documentary hearing between the parties, there should be provided opportunities for an oral hearing if either of the parties requires it. Eighth, if the parties do not understand the language of the arbitration, the parties can directly ask the translation service. They should also keep secrets in the process of arbitration. Ninth, the cancellation of arbitral award is allowed by the application of the parties, not by the authority of the court. Except for the nine differences above, the Mongolian arbitration system is similar to that of the Korean Arbitration Law. This paper serves to contribute to the furtherance in trade relationship between Mongolia and Korea after the rapid and efficient resolution of disputes.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.259-277
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• 2011

In 2008, North Korea revised its Foreign Economic Arbitration Act. To some extent, the new Act reflected such international standard of arbitration as UNCITRAL Arbitration Rules. In this paper, the said Act will be evaluated, and then cooperation ways of South-North Korea on Inter-Korean Commercial Arbitration will be suggested. In 2007, the Ministry of Unification has designated the Korean Commercial Arbitration Board as Inter-Korean Arbitration Committee and has made efforts to prepare follow-up measures on the two Agreements of Inter-Korean Commercial Arbitration. In 2008 however, the follow-up measures has in fact been suspended. In order to revitalize the Inter-Korean commercial arbitration, some prerequisites must be satisfied. First, Inter-Korean Arbitration Committee for Inter-Korean commercial arbitration should re-open as soon as possible. Second, as North Korea recently shows interest in joining the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards(now so called New York Convention), Governmental Authority of Rep. of Korea should also actively assist and support their joining in New York Convention. Third, both Korean governments should carry out joint study on raising the efficiency of the arbitration system which they will use. Fourth, comparative study on arbitration systems used in both countries should be conducted. Also, it may is very timely to discuss the issue in international arbitration community such as "North-East Asia International Arbitration Conference" or other similar events. In conclusion, continuous study on prevention of commercial disputes between South-North Korea and ways to resolve disputes when they arise should be conducted.

• Journal of Arbitration Studies
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• v.18 no.1
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• pp.97-119
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• 2008

The reluctance of Latin American countries to practice international arbitration is not a new topic in international law. This reluctance historically based on Calvo Doctrine provoked not only the absence of Latin American countries from the major international commercial arbitration conventions, but obsolete national arbitration legislation. Recently, however, these countries have undertaken major steps showing that the region is no longer reluctant to practice international commercial arbitration. Most Latin American countries have ratified the 1958 Convention on the Recognition and Enforcement of Foreign Arbitral Awards ("New York Convention"), the 1965 Convention on the Settlement of Investment Disputes ("Washington Convention") and the 1975 Inter-American Convention on International Commercial Arbitration ("Panama Convention"). The majority of Latin American countries have also modified and adapted their national legislation on arbitration to the UNCITRAL model law. Even judiciary has been following this pro-arbitration. This article will focus on some of these factors provoking the acceptance of international commercial arbitration in Latin America to trace the common trends and characteristics in an attempt to understand better how international arbitration set on its place firmly. For this purpose we selected five countries, Brazil, Argentina, Chile, Mexico and Venezuela, to analyse legislations and jurisprudence. Latin America is ready to challenge any obstacles to promote arbitration as alternative methods of judicial resolution. There is an ever-increasing number of international arbitration in Latin America. Both practitioners and judiciary have shown desires to promote the resolution of disputes by arbitration and used the legal instruments to ensure that process interpreting and applying legislations for pro-arbitration. Even there remains Calvo Doctrine's culture in Latin America still now, it should be certain this culture will disappear from the conduct of international arbitration.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.99-124
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• 2013

International commercial arbitration is a specially formed mechanism for the final and binding settlement of disputes arisen between contracting parties regarding procedures, structures or other contractual relationship agreed by them. It is a resolution system which is processed autonomously by arbitrators who are appointed by contracting parties without involving the national court. If the contracting parties want to settle their disputes by arbitration, there must be a valid agreement. With a valid agreement, the most important concern is which law(called as the substantive law) should be applied in order to determine the rights and obligations of both contracting parties in relation to the dispute. At this point, the substantive law is really important because it is applied to the dispute itself directly during proceedings as well as it plays an crucial role in scrutiny and enforcement of arbitral awards. This article discusses about the substantive law under international commercial arbitration, specially focusing on the regulations of the ICC rules of arbitration, which is the most widely used all over the world and UNCITRAL Model law, which most countries' rule and laws are based on. By discussing how these rules and regulations should be interpreted and applied, it is expected to provide practical help to practitioners when they agree on an arbitration agreement.

• Journal of Arbitration Studies
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• v.20 no.2
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• pp.27-47
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• 2010

It is well recognized that the availability of prompt, effective and economical means of dispute resolution is an important element in the orderly growth and encouragement of international trade and investment. Increasingly, arbitration, instead of litigation in national courts, has become the preferred means of resolving private international commercial disputes. Under the situation, it will be important thing for arbitral institutions to reach an agreement to promote the dispute settlement of the commercial disputes, for which efforts have been made between the Korean Commercial Arbitral Board(KCAB) and principal arbitration institutions of the foreign countries. Since 1973, the KCAB has entered into many arbitration agreements with well-known foreign institutions of arbitration. If the place of arbitration is not so designated by the parties, it, as a general rule, shall be the country of the respondent(s) under the Korea-Japanese Arbitration Agreement. On the other hand, the U.S.-Korean Commercial Arbitration Agreement maintains 'Joint Arbitration Committee which finally decide the place of arbitration. In 1996, the Korea-Austria Agreement of Cooperation was concluded for the prompt and equitable settlement on an amicable basis of commercial disputes. Under this Agreement, arbitral institutions between Korea and Austria agreed to act as an appointing authority in accordance with the UNCITRAL Arbitration Rules. It is also very important for Korea and China including North Korea to cooperate each other for the settlement of the commercial disputes within the Pan Yellow Sea Economic Bloc(PYSEB). The PYSEB is quickly becoming a distinctive and crucial region in the world sharing geographical proximity, many common historical experiences, and similar cultural norms and values although they have disparities in stages of development, trade and economic policies, and financial and legal frameworks. Finally, it should be considered to establish a central common system for settlement promotion of the commercial disputes within the PYSEB through the arbitration agreement. Such a dispute resolution system was already introduced and established within the area of the NAFTA, and it is called the Commercial Arbitration and Mediation Center for the Americas(CAMCA).