• Journal of Arbitration Studies
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• v.23 no.1
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• pp.55-84
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• 2013

There should be an arbitration agreement between concerned parties in order to resolve a dispute through arbitration. The arbitration procedures, including the selection of the arbitrator and the adjudicative rights of the arbitrator, are based on the arbitration agreement. In other words, the arbitration procedure and adjudication can be carried out within the boundaries of the arbitration agreement. Traditionally, the Doctrine of Separability of the arbitration agreement has been acknowledged in order to emphasize its importance and to clearly separate it from the contract. Today, when the Doctrine of Separability of the arbitration agreement is well established, overemphasizing this separability could hamper its effectiveness and the autonomy of the parties. Moreover, arbitration agreements in the past were required to be written, clarifying the existence of the agreement and determining the scope of its validity. Further, an arbitration agreement was considered as narrowly as possible. However, since arbitration has become a generalized resolution for disputes, the formal or content requirements should be reconsidered. In terms of validity, the subjective and objective scope should necessarily be extended as a means to resolve disputes related to an arbitration agreement and reduce the resolution cost and duration. Under this perspective, the arbitration theory should now focus on arbitration agreements rather than the place of arbitration. We should break from the nationalistic view, which understands that the arbitration system is a part of the national legal system and that arbitration is allowed solely by permission of the nation. Instead, we should extensively reinterpret the subject of arbitration agreement and its range of effects so that disputes can be resolved between the concerned parties under a single procedure and norm, a necessary step forward. Moreover, in spite of the positive contribution and role of the New York Convention toward the establishment and development of the international arbitration system, there should be an effort to overcome its deterioration. As mentioned in the recommendations regarding the interpretation of the arbitration agreement in the New York Convention in 2006, we should begin by striving to match the Convention as a means of interpretation with the changes of the twenty-first century. Ultimately, we should meet the demands of the new era through amendments to the Convention.

• Journal of Korea Trade
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• v.25 no.7
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• pp.108-121
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• 2021

Purpose - This paper studies whether the CISG is applicable to the arbitration agreement when the validity of the arbitration agreement becomes an issue. To make the study clear, it limits the cases assuming that the governing law of the main contract is the CISG and the arbitration agreement is inserted in the main contract as a clause. Also, this paper discusses only substantive and formal validity of the arbitration agreement because the CISG does not cover the questions of the parties' capacity and arbitrability of the dispute. Design/methodology - This paper is based on scholarly writings and cases focusing on the principle of party autonomy, formation of contract and the doctrine of separability to discuss characteristic of arbitration agreement. In analyzing the cases, it concentrates on the facts and reasonings that show how the relative regulations and rules are interpreted and applied. Findings - The findings of this paper are; regarding substantive validity of arbitration agreement, the courts and arbitral tribunals consider general principles of law for the contract and the governing law for the main contract. In relation to formal validity of arbitration agreement, the law at the seat of arbitration or the law of the enforcing country are considered as the governing law in preference to the CISG because of the recognition and enforcement issues. Originality/value - This paper attempts to find the correlation between the CISG and the arbitration agreement. It studies scholars' writing and cases which have meaningful implication on this issue. By doing so, it can provide contracting parties and practitioners with some practical guidelines about the governing law for the arbitration agreement. Furthermore, it can help them to reduce unpredictability that they may confront regarding this issue in the future.

• Journal of Arbitration Studies
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• v.34 no.1
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• pp.51-74
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• 2024

Korea continues to invest in the IT industry and is currently regarded as one of the five major powerhouses in the field of intellectual property. However, it is evaluated that this status is only limited, and the level of intellectual property protection and dispute resolution does not reach a level commensurate with the status of one of the five major intellectual property powers. To address these problems, the Korean government has enacted the Arbitration Industry Promotion Act in 2017, which aims to strengthen national competitiveness by fostering the arbitration system as an industry and provide systematic support so that the arbitration industry can become a future growth engine. In addition, in accordance with Article 3 of the 「Arbitration Industry Promotion Act」, the Minister of Justice must establish "the Basic Plan for Arbitration Industry Promotion" every 5 years. Great efforts must be put into establishing an Online Dispute Resolution (ODR) system at the KCAB for five years from 2024 to 2028, the Second Basic Plan for the Promotion of the Arbitration Industry period. Under these circumstances, this study presents implications and improvement measures for the development of the intellectual property-related arbitration system to protect Korea's intellectual property rights and contribute to more active intellectual property creation. In particular, this study proposes a plan to build an one-stop digital platform for KCAB to implement an efficient ODR system.

• Journal of Arbitration Studies
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• v.17 no.3
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• pp.3-30
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• 2007

The New York Convention(formally called "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards") done in New York on June 10, 1958 has been adhered to by more than 140 States at the time of this writing, including almost all important trading nations from the Capitalist and Socialist World as well as many developing countries. The Convention can be considered as the most important Convention in the field of arbitration and as the cornerstone of current international commercial arbitration. 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 another 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 provisions relating to the enforcement of arbitral awards falling under the New York Convention begin at Article III. The Article III contains the general obligation for the Contracting States to recognize Convention awards as binding and to enforce them in accordance with their rules of procedure. The Convention requires a minimum of conditions to be fulfilled by the party seeking enforcement. According to Article IV(1), that party has only to supply (1) the duly authenticated original award or a duly certified copy thereof, and (2) the original arbitration agreement or a duly certified copy thereof. In fulfilling these conditions, the party seeking enforcement produces prima facie evidence entitling it to obtain enforcement of the award. It is then up to the other party to prove that enforcement should not be granted on the basis of the grounds for refusal of enforcement enumerated in the subsequent Article V(1). Grounds for refusal of enforcement are stipulated in Article V is divided into two parts. Firstly, listed in the first Para. of Article V are the grounds for refusal of enforcement which are to be asserted and proven by the respondent. Secondly, listed in Para. 2 of Article V, are the grounds on which a court may refuse enforcement on its own motion. These grounds are non-arbitrability of the subject matter and violation of the public policy of the enforcement country. The three main features of the grounds for refusal of enforcement of an award under Article V, which are almost unanimously affirmed by the courts, are the following. Firstly, The grounds for refusal of enforcement mentioned in Article V are exhaustive. No other grounds can be invoked. Secondly, and this feature follows from the first one, the court before which enforcement of the award is sought may not review the merits of the award because a mistake in fact or law by the arbitrators is not included in the list of grounds for refusal of enforcement set forth in Article V. Thirdly, the party against whom enforcement is sought has the burden of proving the existence of one or more of the grounds for refusal of enforcement. The grounds for refusal of enforcement by a court on its own motion, listed in the second Para. of Article V, are non-arbitrability of the subject matter and public policy of the enforcement country. From the court decisions reported so far at home and abroad, it appears that courts accept a violation of public policy in extreme cases only, and frequently justify their decision by distinguishing between domestic and international public policy. The Dec. 31, 1999 amendment to the Arbitration Act of Korea admits the basis for enforcement of foreign arbitral awards rendered under the New York Convention. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of the award.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.93-118
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• 2012

본 연구는 지적재산분쟁의 중재에 대한 미국 케이스에 관한 연구입니다. 본 연구의 목적은 한국의 지적재산분쟁의 중재에 대한 추후 연구와 가까운 장래에 비교연구를 위해서 지적재산에 관련된 케이스들에 관하여 미국의 연구들을 논하는데 있습니다. 본 연구에서 지적재산 관련 사건들의 중재에 관한 미국케이스들을 채택하였습니다. 그리고 본 연구의 목적 달성과 효과적인 연구를 성취하기 위해 그 케이스들을 인용하였습니다. 그러므로, 본 연구의 구성은 특히, 라이센싱분쟁의 중재, 특허분쟁의 중재, 저작권분쟁의 중재를 위하여 지적재산분야와 중재 분야에 있는 케이스로 이루어져 있습니다. 중재조항은 분쟁에 관해 누가 결정할 것인가 그리고 분쟁이 중재 가능한가 아닌가에 관하여 법원에서 중재적격 문제들을 분석할때에 계약 원칙을 적용하게 됩니다. 일반적으로, 중재적격의 의문은 사법적 분야의 질문에 관한 것 입니다. 그러나, 중재조항이 분명하고, 명백하고, 오해없는 문구들인 곳에서 법원은 연방 중재법이 중재조항과 중재범위를 포함하고 있기 때문에 중재를 존중합니다. 그러므로, 저런 경우에 중재인은 중재적격을 판단 할 수 있습니다. 그러나, 미국에서 법원은 어떤 케이스들은 ICC 룰로 구속되어지고 그리고 다른 케이스들은 AAA 룰로 구속 되어지는 것을 발견했습니다. 어떤 룰이던지 간에 중재조항은 주의깊게 만들어야만 하고 그리고 분명하고 명백한 구문을 제공하여야만 한다는 것을 법원에 의해 요구되어지고 있습니다. 본 연구에서 발견한 점들은, 라이센싱분쟁의 중재에 있어서, 중재합의의 범위가 광범위 또는 제한적일지라도 양 당사자의 중재조항을 위해 계약에서 분명하고 명확한 문구를 만드는 것이 중요합니다. 이것은 우리에게 계약의 원칙이 분쟁에서 적용 되어지고 있다는 것을 보여 주고 있습니다. 그래서, 중재조항의 조문은 법원이나 중재인에게 논쟁 또는 오역이 없게 확실하고 분명하게 명시하여야 합니다. 특허분쟁의 중재에 있어서, 대부분 법원들은 케이스들을 분석할때에 광범위한 중재조항에 따라오고 있습니다. 중재적격 결정의 테스트로서 계약에서 "arising under" or "relating to" 구절은 ADR을 위해 그리고 분쟁의 예방을 위해 중재가 광범위한 문구를 포함하고 있는가 아닌가를 보는데 중요합니다. 더구나, 특허 또는 특허관련 권리들 하에서, 중재는 연방중재법에 의해 지배되기 때문에 계약은 특허 유효성 또는 침해 문제들이 중재를 통한 분쟁을 해결하도록 하나의 문구를 포함해도 됩니다. 그러므로, 이 분석은 미국의 케이스들을 비교한 결과로서, 한국중재법도 또한 모든 필요한 조문들이 그것들이 광범위하건 제한된 범위이건 간에 모호한 이슈들을 피하기 위해 분명하고 오해없는 문구들이여야 한다는 것을 제시합니다. 지적재산분쟁의 중재에 있어서, 케이스에 근거하여 발견한 점들은 저작권법을 포함한 광범위한 중재조항이 있는 경우 저작권의 유효성은 법원이 독점할 수 없다고 법원은 판단했습니다. 그리고 연방중재법은 법원이 청구취지가 중재가능한 클레임들에(arbitrable claims) 관하여 중재를 강요하도록 지원하고 있습니다. 이것은 저작권 케이스일지라도 계약에 있어서 중재조항이 법원이 중재를 강요하도록 중재가능한가 아닌가 결정하는데 분쟁에 있어 중요한 역학을 한다는 것을 제시합니다. 그러므로, 본 연구는 계약에서 광범위한 중재조항은 중재인이 지적재산 클레임에 대해 판정 또는 룰을 결정하게 허용한다는 것을 발견했습니다. 본 연구의 결과들은 계약에 있어 중재의 범위는 계약의 원칙을 적용한다는 것입니다. 그리고 중재조항에 있어서 침해와 유효성 문제들의 결정은 계약 해석에 관련되어 있다는 것을 제시합니다. 그러므로, 양 당사자가 분명하고 명확하게 달리 결정하지 않았다면, 양 당사자가 중재에 대해 동의했는가 아닌가의 의문점은 법원에 의해 결정되어지는 것입니다. 이것은 분명하고 명확한 문구가 중재조항에 존재하지 않는다면 중재인에 의해 결정되지 않는다는 것을 뜻합니다. 중재조항은 명백하게 중재인에게 결정의 권한을 주어야만 한다는 것입니다.

• Journal of Arbitration Studies
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• v.24 no.2
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• pp.109-136
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• 2014

The separability of an arbitration clause is generally recognized throughout the world, but there are no provisions of it under the Federal Arbitration Act(FAA) of the United States. As such, the controversy over the recognition of separability has developed with the rise of certain cases. The Supreme Court recognized this separability based on section 4 of the FAA in the decision of the Prima Paint case. The Court ruled that courts must decide the claim about the fraudulent inducement of an arbitration agreement itself, but they must not decide the claim about the fraudulent inducement of a contract involving a broad arbitration clause, and they have to proceed with the arbitration. The Court said that the subject of an arbitral award is set by the agreement of the parties, and thereby arbitrators can decide the issues about the fraudulent inducement of a contract on the basis of the arbitration clause when it is broad to the point of including the issues. Many courts have extended the separability beyond the fraud context to include other defenses to contract formation in the federal courts such as the occurrence of mistake, illegality, and frustration of purpose. In interpreting the parties' intention of ensuring arbitrator competence, the Supreme Court has treated differently the issues about whether the arbitration agreement exists or not and the issues about whether the preconditions for dispute resolution by a valid arbitration agreement is fulfilled or not. The Court holds that the federal policy in favor of arbitration does not apply to the former issues, and arbitrators can decide theses issues only when parties assign them clearly and unmistakably to them. However, the later issues receive a presumption in favor of arbitration; i.e., when the interpretation of a valid arbitration clause is contested, the arbitrators can decide these issues. In the First Options case, the former issue was questioned. The question of the separability of an arbitration clause is where the validity of the main contract involving the arbitration clause is contested. Therefore, the doctrine of separability did not operate in the First Options case in which the validity of the arbitration clause itself was questioned, and the decision in the First Options was irrelevant to the separability. I think that the Prima Paint case and the First Options case have different issues, and there is no tension between them.

• Journal of Arbitration Studies
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• v.29 no.1
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• pp.31-52
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• 2019

As international transactions have grown more numerous, situations of disputes related to the transactions are getting more complicated and more diverse. Cost-effective remedies to settle the disputes through traditional methods such as adjudications of a court will be insufficient. There fore, nations are attempting to more efficiently solve investor-state disputes through arbitration under organizations such as the ICSID Convention, the ICSID Additionary Facility Rules, and the UNCITRAL Arbitration Rules by including the provisions on investor-state dispute settlement at the conclusion of an investment agreement. In case of an arbitration under the ICSID Convention, ICSID directly exercises the supervisorial function on arbitral proceedings, and there is no room for the intervention of national courts. In time of the arbitration where the ICSID Convention does not apply, however, the courts have to facilitate the arbitral proceedings. When the recognition and enforcement of an arbitral award under the ICSID Convention are guaranteed by the Convention, it should be considered that the New York Convention does not apply to them under the Convention Article 7 (1) fore-end. In exceptional cases in which an arbitral award under the ICSID Convention cannot be recognized or enforced by the Convention, the New York Convention applies to the recognition and enforcement because the award is not a domestic award of the country in which the recognition or enforcement is sought. It is up to an interpretation of the New York Convention whether the New York Convention applies to ISDS arbitral awards not based on the ICSID Convention or not. Although an act of the host country is about sovereign activities, a host country and the country an investor is in concurring to the investment agreement with the ISDS provisions is considered a surrender of sovereignty immunity, and it will not suffice to exclude the investment disputes from the scope of application of the New York Convention. If the party to the investment agreement has declared commercial reservation at its accession into the New York Convention, it should be viewed that the Convention applies to the recognition and enforcement of the ISDS awards to settle the disputes over an investitive act, inasmuch as the act will be considered as a commercial transaction. When the recognition and enforcement of an arbitral award on investment disputes about a nation's sovereign act have been sought in Korea and Korea has been designated the place of the investment agreement arbitration as a third country, it should be reviewed whether the disputes receive arbitrability under the Korean Arbitration Act or not.