• 한국중재학회지:중재연구
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• 제7권1호
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• pp.325-358
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• 1997

• 한국중재학회지:중재연구
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• 제7권1호
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• pp.19-32
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• 1997

• 한국중재학회지:중재연구
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• 제7권1호
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• pp.55-75
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• 1997

• 무역상무연구
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• 제36권
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• pp.111-140
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• 2007

This paper intends to review the qualifications of arbitrator, the disclosure of disqualifications by arbitrator, the challenge grounds of arbitrator, and the challenge procedure of arbitrator under the arbitration laws and rules. There are no provisions for the qualification of arbitrator in the UNCITRAL Model Law on International Commercial Arbitration. Under the UNCITRAL Model Law on person shall be precluded by reason of his nationality from acting as an arbitrators. Under the UNCITRAL Model Law when a person is approached in connection with his possible appointment as an arbitrator, he shall disclose any circumstances likely to give rise to justifiable doubts as to his impartiality or independence. An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall without delay disclose any such circumstances to the parties. Under the UNCITRAL Model Law an arbitrator may be challenged only if circumstances exist that give rise to justifiable doubts as to his impartiality or independence, or if he does not possess qualifications agreed to by the parties. Under the UNCITRAL Model Law the parties are free to agree on a procedure for challenge an arbitrator. Failing such agreement, a party who intends to challenge an arbitrator shall send a written statement of the reasons for the challenge to the arbitral tribunal within 15 days after becoming aware of the constitution of the arbitral tribunal or any circumstance that give rise to justifiable doubts as to his impartiality or independence. Unless the challenged arbitrator withdraws from his office or the other party agrees to the challenge, the arbitral tribunal shall decide on the challenge. In conclusion, an arbitrator has a responsibility not only to the parties but also to the process of arbitration, and must observe high standards of conduct so that the integrity and must observe high standards of conduct so that the integrity and fairness of the process will be preserved.

• 한국중재학회지:중재연구
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• 제16권3호
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• pp.3-22
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• 2006

이 논문은 지난 10월 26일 및 27일 양일간에 걸쳐 서울의 Grand Intercontinental Hotel에서 개최된 국제중재학술대회 ICC/KCAB/KOCIA Conference에서 발표된 것으로 외국 변호사들의 이해를 돕기 위해 우리나라 중재법의 주요 내용을 설명하되, 특히 뉴욕협약과 국제상사중재에 관한 유엔모범법과 차이가 있는 부분을 주로 설명하였다. 이 논문은 우리나라 중재법이 규율하는 분야 중에서 그 적용범위, 중재적격, 통지의 서면성, 중재합의의 형식, 중간구제조치의 집행, 중재의 준거법 및 중재인의 선정 등에 관하여 설명하였다. 또한 이 논문은 우리나라가 일본, 중국 및 우리나라를 포함하는 동북아무역과 관련한 분쟁에서 중재의 중심지가 되어야 할 것을 역설하고, 이를 위해서 우리나라 유일의 중재기관인 대한상사중재원이 중재인 및 사무국 분야에서 개선이 필요함을 주장하였다.

• 무역상무연구
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• 제32권
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• pp.59-91
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• 2006

The Arbitration Act of Korea was promulgated in 1966. Since the promulgation of Arbitration Act of Korea, consecutive amendments took place in 1973, 1993, 1997, 1999, 2001 and 2002. Among the various set of amendments, those of 1999 were designed to accommodate the UNCITRAL Model Law on international Commercial Arbitration of 1985. Korea has acceded to special international conventions on dispute settlement such as the New York Convention of 1958 and the Washington Convention of 1965. The Korean Commercial Arbitration Board(KCAB) administers the arbitration proceedings in accordance with its Arbitration Rules approved by the Korean Supreme Court. Since the establishment of the first Arbitration Rules in 1966. consecutive amendments took place in 1973, 1981, 1989, 1993, 1996, 2000 and 2004. The KCAB plans to enact the International Arbitration Rules, which will be available to disputing parties in addition to the KCAB Arbitration Rules. In 2005, arbitration applications received at KCAB recorded a historic high at 213 cases, an increase of 22% from 175 cases in 2000. But in 2005, the total amount involved in the arbitration cases decreases to US$ 129 million, a decline of 63% from US$ 346 million in 2000. The KCAB should take the following measures for activating the commercial arbitration system: the globalization of KCAB, the advertisement of arbitration system, the security of qualified arbitrators, and the enhancement of the secretariat service. In conclusion, the KCAB should make efforts for the development of the arbitration system and for the upgrade of customer satisfaction. Moreover the KCAB should make further efforts to grow into a global arbitration institution as well as strengthening relations with international arbitration institutions.

• 한국중재학회지:중재연구
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• 제11권1호
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• pp.3-35
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• 2001

$\ulcorner$The South-North Joint Declaration$\lrcorner$ of June 15, 2000 made by President Kim Dae Jung and National Defense Committee Chairman Kim Jong Il will contribute to the activation of economic exchange between south and north Korea. To realize the fundamental spirit of the South-North Joint Declaration, the authorities concerned of south and north Korea have reached an agreement titled $\ulcorner$Agreement on Settlement Procedure of Commercial Disputes$\lrcorner$ last December. In this connection, a speedy and reasonable settlement of commercial disputes arising therefrom is becoming a problem of vital importance between south and north Korea. Also, south and north arbitral institutions have to consider a possible arbitration agreement carefully to solve the disputes systematically under the Agreement, which will serve as an example for similar arrangements and possible harmonization in East-West commercial relations. A variety of dispute settlements including friendly consultations, conciliation and arbitration will be used more frequently within the framework of the bilateral agreements of governmental or non-governmental level which have been concluded in the past between socialist and capitalistic economy countries. There is a growing tendency that East-West trade parties recognize and accept the UNCITRAL Arbitration Rules in their contracts. So it is advisable to use the UNCITRAL Rules in arbitrations of south and north Korea in case that the interested parties fail to agree on applicable rules. Finally it should be noted that pre-arbitral settlement called ‘joint conciliation’ should be reflected in the settlement mechanism of commercial disputes between south and north Korean parties as proved to be successful between the U.S. and China trade in the past.

• 한국중재학회지:중재연구
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• 제18권3호
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• pp.117-138
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• 2008

This study lies on building the International Standardization of China Arbitration System for improving a relationship of mutual trust and the safety trade between China and other worldwide countries, especially, South Korea as their one of the biggest trading partners through the comparative analysis of China and UNCITRAL Arbitration Law. In this analysis, the differences from China and UNCITRAL in arbitration law are like belows ; lack of arbitrator's international mind, the limitation of private property right, prohibition of Ad. hoc arbitration, arbitrator's biased nationalism, localism, and their short specialties. a deficiency of the objectiveness for arbitrator's election, a judgement rejection of claimants by using nonattendance and walkout, impossibility of prior and temporary property custody for execution of arbitration award. etc. For the improvement of the International Standardization of China Arbitration, this paper propose as follows: 1) Extension of private property right, reorganization of tax system, realization of open competition, exclusion of 'Sinocentrism', globalization of arbitration system 2) The abolition of old fashioned bureaucracy with approval for ad.hoc arbitration 3) An education for arbitrator's internationalization, specialty, and to promote legal knowledge 4) A settlement of the third country arbitrators' selection for reflecting interested party's decision by the court in a selection system of arbitration committee. 5) Institutionalization of arbitration judgment that prevent for claimant's avoidance by using a withdrawal and an intentional absent 6) A permission of the right of claimant's court custody directly before the begging of arbitration request for the prevention for destruction of evidence and property concealment 7) Grant of the arbitration tribunal's interim measures of protection for private property preservation to the third party, proof security, prevention from the loss that selling the corruptible goods 8) Improvement of arbitration's efficiency from the exclusion of the obstacles that are forgery, concealed evidence, and arbitrator's bribe taking Lastly, I hope that this study will serve to promote friendly economic relationship between China and South Korea and strive for international equilibrium through the achievement of China Arbitration's International Standardization. I will finish this paper with a firm belief that this will lead to more advanced studies.

• 한국중재학회지:중재연구
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• 제10권1호
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• pp.3-25
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• 2000

At its thirty-second session in 1999, the UNCITRAL had before it the requested note entitled "Possible future work in the area of international commercial arbitration." After concluding the discussion on its future work in the area of international commercial arbitration, it was agreed that the priority items for the working group should be conciliation, requirement of written form for the arbitration and enforceability of interim measures of protection. the Commission entrusted the work to the Working Group on Arbitration which held its thirty-second session at Vienna from 20 to 31 March 2000. The Working Group discussed agenda item 3 on the basis of the report of Secretary General entitled "Possible uniform rules on certain issues concerning settlement of commercial disputes : conciliation, interim measures of protection, written form for arbitration agreement." At its thirty-three session in 2000, the UNCITRAL had before it the report of Secretary General on agenda item 3 discussed by the Working Group. The Working Group discussed the issues relating to certain aspects of conciliation proceedings ; (1) Admissibility of certain evidence in subsequent judicial or arbitral proceedings ; (2) Role of conciliatior in arbitration or court proceedings ; (3) Enforceability of settlement agreements reached in conciliation proceedings ; (4) Other possible items for harmonized treatment : a) Admissibility or desirability of conciliation by arbitrators b) Effect of an agreement to conciliate on judicial or arbitral proceedings c) Effect of conciliation on the running of limitation period d) Communication between the conciliator and parties ; disclosure of information e) Role of conciliator. It was generally considered that decisions as to the form of the text to be prepared should be made at a later stage when the substance of prepared solutions would become clearer. However, it was noted that model legislative provisions seemed to be appropriate form for a number of matters proposed to be discussed in the area conciliation. There was general support in the Working Group for the proposition to perpare a legislative regime governing the enforcement of interim measures of protection ordered by arbitral tribunals. It was generally considered that legislative regime should apply to enforcement of interim measures issued in arbitration taking place in State where enforcement was sought as well as outside that State. It was generally observed that there was a need for provisions which conformed to current practice in international trade with regard to requirements of written form for arbitration agreement. The view was adopted by the Working Group that the objective of ensuring a uniform interpretation of the form requirement that responded to the needs of international trade could be achieved by : preparing a model legislative provision clarifying, for avoidance of doubt, the scope of article 7(2) of the UNCITRAL Model Law on International Commercial Arbitration : and adopting a declaration, resolution or statement addressing the interpretation of the New York Convention that would reflect a broad understanding of the form requirement. There was general agreement in the Working Group that, in order to promote the use of electronic commerce for international trade and leave the parties free to agree to the use of arbitration in the electronic commerce sphere, article II(2) of the New York Convention should be interpreted to cover the use of electronic means of communication as defined un article 2 of the Model Law on Electronic Commerce and that it required no amendment to do that. The UNCITRAL may wish to consider to the desirability of preparing uniform provisions on any of those issues concerning conciliation and arbitration proceedings, possibly indicating whether future work should be towards a legislative text or non-legislative text.

• 무역상무연구
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• 제31권
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• pp.107-134
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• 2006

Enforcement of an arbitration award is an extremely important issue in arbitration. Arbitration, as a dispute settlement process, is rendered meaningless if it is not possible to enforce an award rendered by an arbitration tribunal. On the other hand, the present international arbitration system guided by the New York Convention and UNCITRAL Model Law is established on the dual supervision from the national courts. The nationality of the international arbitral award closely relates to the supervision of the national court, and the national court is entitled to decide the nationality of the international award in accordance with the conditions set in its own domestic law. The national court may set aside arbitral award made in its territory while the foreign court may refuge enforcement of foreign arbitral awards according to its own law and international convention to which it is a party. The conditions set in the Arbitration Law of the People's Republic of China are in agreement with those set in the UNCITRAL Model Law. The Chinese national court is entitled to set aside international awards made in China in accordance with the Chinese Law. The purpose of this paper is to clarify the Chinesr practice on the revocation of international commercial arbitral awards.