• 한국중재학회지:중재연구
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• 제7권1호
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• pp.33-54
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• 1997

• 한국중재학회지:중재연구
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• 제22권3호
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• pp.71-92
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• 2012

The significant increase in international trade over the last few decades has been accompanied by an increase in the number of commercial disputes between Korea and India. Understanding the Indian dispute resolution system, including arbitration, is necessary for successful business operation with Indian companies. This article investigates characteristics of India's Arbitration and Conciliation Act in order to help then traders who enter into business with Indian companies to settle their disputes efficiently. The Arbitration and Conciliation Act(1996) based on the 1985 UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976, has a number of characteristics including the following: (i) this act covers ad hoc arbitration and institutional arbitration (ii) parties to the arbitration agreement have no option except arbitration in case of any dispute (iii) the parties can choose their own laws, places, procedures, and arbitrators (iv) the decision of the arbitrators is final and binding (v)role of the court has been minimized and (vi) enforcement of foreign awards is recognized. However, there have been some court decisions that have not been in tune with the spirit and provisions of the Act. Therefore, Korean companies insert the KCAB's standard arbitration clause into their contracts and use India's ADR(Alternative Dispute Resolution) Methods to strategically resolve their disputes. Additionally, Korean companies investigate Indian companies' credit standing before entering into business relations with them.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.211-234
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• 2004

When there is a dispute in international commercial contracts, the arbitration system, which is an ADR system, is often utilized. The Arbitration system can only be put to use when there is an arbitration agreement between the parties concerned, but even in this case, the one party of the contract tries to avoid the braking of the arbitration. In this case, separability doctrine and Kompetenz-Kompetenz doctrine can be used for the smooth operation of the Arbitration system. This paper reviews these two doctrines, taking a close look at UNCITRAL, ICC, America's FAA and case examples, and France's system and its case examples. U.S. has adopted separability doctrine for the Prima paint case but not the Kompetenz-Kompetenz doctrine. English has adopted separability doctrine for the Heyman case but not the Kompetenz-Kompetenz doctrine. However in France, both doctrines are adopted. France, which accords international arbitration the most highly favorable status of the three nations, has developed the legal framework that best promotes the public policy goal of encouraging the use of arbitration agreements in international commerce. In Korea, the above doctrines are prescribed in Article 17 of the arbitration law, as prescribed by the UNCITRAL Model law. However it takes the form of German laws. The adoption of the French system would have been wiser considering the promotion of the arbitration system.

• 한국중재학회지:중재연구
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• 제11권1호
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• pp.181-215
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• 2001

The thirty-fourth session of UNCITRAL Working Group on Arbitration was held in New York. Among the topics discussed at the session, many delegations agreed to reform the article 7 of the UNCITRAL Model Law on International Commercial Arbitration in light of the development of electronic commerce. As for the article 2(2) of the New York Convention, it was agreed to reflect the changes of the article 7 not in the form of a treaty amendment but in the form of an interpretative statement. The topic as to provisional measures has been found so difficult to reach an agreement that most of its texts submitted by the secretariat were left untouched for the lack of time. However, most provisions of the legislative texts on conciliation were dealt with by delegations. The next session is to be held in Vienna. While the Korean Arbitration Act of 1966 was fully amended in 1999, it seems interesting to look at the development in which the arbitration community of the world has already begun discussing the new dimension of the law and practice of international commercial arbitration. It may be considered early to start a new project of reforming the Korean Arbitration Act at this time when only three years passed after it was fully amended. It is, however, worthwhile to remember that some progressive efforts were aborted in amending the Arbitration Act of 1966. One of them is about the same issue on the insertion of some provisions on the enforcement of interim measures of protection to which the priority is given by the Working Group. It seems fair to say that it would not be dangerous to follow the developments and to adapt ourselves to such trends shown in the session. In Korea, the words “arbitration” and “conciliation” are misleadingly interchanged although these two words should be differentiated from each other in the sense of third-party binding decision. It is self-evident from the Korean Arbitration Act and judicial decisions that arbitral awards bind the disputing parties and are to be treated as final judgements by the competent courts. It is, however, not uncommon to find that the word “arbitration” is misinterpreted as having the same meaning of the word “conciliation”. One of the reasons for the confusion is that many legislations in Korea provide for conciliation as having the meaning of arbitration and vice versa. It may be probable that the proposed legislative texts on conciliation could be a kind of useful method to prevent such confusion from being uncontrollable. It is, therefore, necessary that the legislative texts should be introduced into Korea as a legislation on conciliation.

• 무역상무연구
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• 제13권
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• pp.131-149
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• 2000

In connection with international commercial arbitration the need to seek interim relief is generally recognized. Interim reliefs address the requirements of a party for immediate and temporary protection of rights or property pending a decision on the merits by the arbitral tribunal. The most common forms of interim relief are attachments and injunctions. If the arbitral tribunal has not yet been appointed, an application for interim relief must usually be addressed to the local courts at the place of commercial arbitration. If the arbitral tribunal has been appointed, the application for interim relief is first made to the arbitral tribunal. Interim relief by the arbitral tribunal is in the form of a direction to the parties. Since the arbitral tribunal has no enforcement power, it may be necessary to have a arbitral tribunal's direction confirmed by a local court which can enforce its order. The New York Convention does not provide for interim reliefs. The question is whether Article II(3) of the New York Convention that the court "shall, at the request of one of the parties, refer the parties to arbitration" denies jurisdiction to courts to grant interim reliefs in international commercial arbitration. Some cases have indicated that the U. S. court have no power to grant interim relief. Other cases have indicated that the U. S. courts do have the power to grant interim relief. It is unlikely that a U. S. court will order interim relief in relation to an commercial arbitration in a foreign country. Article 26 of the UNCITRAL Arbitration Rules provides with respect to interim measures of protection. Section 1 of Article 26 of UNCITRAL Arbitration Rules provides that the arbitral tribunal may take any interim measures it deems necessary in respect of the subject matter of the dispute, including measures for the conservation of the goods forming the subject matter in dispute. This article gives the arbitral tribunal the broadest authority, not limited to safeguarding property. Article 17 of the UNCITRAL Model Law on International Commercial Arbitration provides that the arbitral tribunal may order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. It may be noted that the article does not deal with enforcement of such measures. The International Chamber of Commerce Rules of Conciliation and Arbitration do not expressly empower the arbitral tribunal to grant interim reliefs. However, Article 8.5 of the ICC Rules of Conciliation and Arbitration provides that the parties shall be at liberty to apply to any competent judicial authority for interim measures. In conclusion, the power of the arbitral tribunal to provide interim reliefs is generally recognized in the arbitration rules of arbitral institutions. However, the arbitral tribunal's authority is limited by its lack of enforcement mechanisms. It is generally recognized that the local courts have power to grant interim reliefs in aid of an commercial arbitration. However, local courts are reluctant to grant interim reliefs if that decision requires an adjudication of issues within the special competence of the arbitral tribunal.

• 한국중재학회지:중재연구
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• 제6권1호
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• pp.93-111
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• 1996

• 한국중재학회지:중재연구
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• 제1권1호
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• pp.171-317
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• 1991

• 한국중재학회지:중재연구
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• 제7권1호
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• pp.157-184
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• 1997

• 한국중재학회지:중재연구
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• 제7권1호
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• pp.185-215
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• 1997

• 한국중재학회지:중재연구
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• 제7권1호
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• pp.216-246
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• 1997