• Journal of Arbitration Studies
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• v.30 no.2
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• pp.69-90
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• 2020

The arbitration system has many advantages, including resilience, speed, ease of approval, and enforcement of foreign arbitration in international disputes, and it plays an important role in today's international business. As the world's economic activities increase, China's trade disputes are intensifying. In 2017, China emphasized the international cooperation and commercial expansion of foreign investment at "One Belt, One Road." Therefore, it is expected that international business will become more active, with the issue of how to recognize and enforce the foreign arbitration awards in China becoming highly important. In addition, South Korea and China maintained deep trade relations after establishing diplomatic relations in 1992 and concluding the Korea-China Free Trade Agreement, which will inevitably increase trade disputes. As far as South Korea is concerned, China is South Korea's largest trading partner, so it is important for South Korea to analyze how foreign arbitration awards are recognized and enforced in China. China's accession to the New York Convention in 1987 was the beginning of the enforcement of foreign arbitrators. However, since China has begun to recognize and enforce foreign arbitrators relatively late, there are many problems in terms of recognizing and enforcing foreign arbitral awards in China. This study introduces the concept and scope of foreign arbitral awards, as well as the legal basis and procedures for recognizing and enforcing foreign arbitral awards, and examines relevant cases and the denial of recognition and enforcement of a foreign arbitration award. In the end, some issues and remedies for the recognition and enforcement of the foreign arbitral awards system in China were concluded.

• Journal of Arbitration Studies
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• v.22 no.2
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• pp.53-77
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• 2012

Competence-competence refers to an arbitratorpower to determine whether he or she has jurisdiction to decide a controversy. Although arbitrators power to rule on their own jurisdiction is generally recognized throughout the world, in the United States, neither the courts nor legislative bodies have recognized its significance or the reasoning behind its widespread adoption. Section 3 of the Federal Arbitration Act (FAA) is notorious among arbitration statues for its failure to incorporate competence-competence. When courts rule on an issue of competence-competence, it is referred to as a question of who decides the arbitrability of the case. In the United States, the use of competence-competence as a term of art is still limited to scholarly writings. The answer to the competence-competence inquiry is found in an interpretation of section 3 of the FAA which empowers the courts to decide arbitrability issues. The cases of the Supreme Court and most commentators interpreted sections 2 and 3 of the FAA as conferring issues of arbitrability on the federal courts, including the ability to rule on the validity and scope of the arbitral agreement. Traditionally, United States courts have denied the competence-competence to arbitral tribunal. Recently, however, they have confounded the rules by placing primary importance on the arbitration agreement between the parties. The Supreme Court, in a series of cases, has underscored the necessity of giving full effect to the intentions of the parties as expressed in their agreement to arbitrate. The result of the Supreme Court's emphasis on contractualism in determining the issue of arbitrability is most evident in the Courtdecision in the First Options case. Under First Options, courts are to decide arbitrability issues unless there is a clear and unmistakable contractual assignment of these issues to the tribunal itself. The Court is appraised that it has attempted to compromise between contractual freedom in the arbitration setting and the rule of law that is necessary in a society that depends on the concept of ordered liberty. In the decision in Howsam, the Court clarified the definition of arbitrability by attempting to draw a clear line between questions of arbitrability that are to be decided by courts and those matters that bear on the allocation of decisions between courts and arbitrators but are not questions of arbitrability.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.50
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• pp.61-85
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• 2011

The agreement to arbitrate is a central feature of commercial arbitration and the lack of a valid arbitration agreement is recognised as a reason why any arbitral award may not be recognized as binding by the courts or may be set aside. The purpose of this paper is to clarify the China's present arbitration law and practice in respect of determination of the validity of international commercial arbitration agreement. Most arbitration laws only require an arbitration agreement to be "in writing". But the arbitration law of the China require an arbitration agreement shall contain the following: 1. The expression of application for arbitration. 2. Matters for arbitration. 3. The arbitration commission chosen. And China's present arbitration law and practice in respect of determination of the validity of international commercial arbitration agreement are somewhat different from the other nations.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.3-49
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• 2006

The purpose of this paper is to make research on the settlement mechanism of the commercial disputes between the South and the North of Korea. Also, this paper is to make research on the south-north Korea's cooperative tasks to promote the disputes settlement, including the operation and management of the South-North Arbitration Commission as well as the enactment of the South-North Arbitration Rules. To realize the spirit of the South-North Joint Declaration of June 15, 2000, the Authorities concerned of the South and the North of Korea have reached an agreement titled 'Agreement on Settlement Procedure of Commercial Disputes' on December of the same year. As the follow-up measures of the said Agreement, the South-North Authorities have signed an another agreement called 'Agreement on Organization and Administration of the South-North Arbitration Commission' on October, 2003, which is becoming vital importance for settlement of the commercial disputes between south and north Korea including the Gaeseong Industrial Complex. Gaeseong, a city surrounded by the North Korean military and a symbol of inter-Korean tensions, is now turning into a peace zone where thousands of North and South Koreans are working side by side. The Gaeseong Industrial Complex project, driven by the logic and economic necessity of cooperation, has been steadily moving forward since the North designated it as a special economic zone and has enacted related laws and regulations for its development. Under the situation, the matter of primary concern is how to organize and conduct the Arbitration Commission for the prompt and effective settlement of the south-north commercial disputes. First of all, the South-North Authorities should recognize that the availability of prompt, effective and economical means of dispute resolution such as arbitration and mediation to be made by the Arbitration Commission would promote the orderly growth and encouragement of the south-north trade and investment. In this connection, the Korean Commercial Arbitration Board(KCAB) should be designated as the arbitral institution of the south Korean side under the Agreement on Organization and Administration of the South-North Arbitration Commission. The KCAB is the only authorized arbitral organization in South Korea to settle all kinds of commercial disputes at home and abroad.

• Journal of Arbitration Studies
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• v.16 no.3
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• pp.53-89
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• 2006

At its thirty-second session(Vienna, 17 May-4 June 1999), the UNCITRAL decided that the priority items for the Working Group(Arbitration and Conciliation) should include enforceability of interim measures and the requirement of written (on for the arbitration agreement. The Working Group, at its forty-third session(Vienna, 3-7 October 2005), it had undertaken a detailed review of the text of the revised article 17 of UNCTTRAL Model Law on International Commercial Arbitration, and it had resumed discussions on a draft model legislative provision revising article 7, paragraph (2) of UNCITRAL Model Law. The purpose of this paper is to make research on the contents and issues of the draft legislative provisions on interim measures and preliminary orders, and on the form of arbitration agreement which the Working Group discussed and adopted at its forth-fourth session(New York, 23-27 January 2006). The draft legislative provisions on interim measures and preliminary orders are composed of the following provisions : Article 17-power of arbitral tribunal to order interim measures; article 17 bis-conditions for granting interim measures; article 17 ter-applications for preliminary orders and conditions for granting preliminary orders; article 17 quater-specific regime for preliminary orders; article 17 quinquies- modification, suspension, termination; article 17 sexies-provision of security; article 17 septies-disclosure; article 17 octies-costs and damages; article 17 novies recognition and enforcements; article 17 decies-grounds for refusing recognition or enforcement; article 17 undecies-court-ordered interim measures. There are the following issues in the draft legislative provisions on interim measures and preliminary orders : form of issuance of an interim measures in article 17(2); conditions for granting interim measures in article 17 bis; purpose, function and legal regime of preliminary orders in article 17 ter; obligation of arbitral tribunal to give notice, and non-enforceability of preliminary orders in article 17 quater; burden of proof, interplay between article 17 decies and article 34, and decision on the recognition and enforcement of the interim measures in article 17 decies; placement of article 17 undecies; amendment of scope exception of application in article 1(2). The draft legislative provisions on the form of arbitration agreement are composed of the following provisions : article 7(1) definition of arbitration agreement; article 7(2) arbitration agreement in writing; article 7(3) arbitration agreement if its terms(content) are (is) recorded in any form; article 7(4) arbitration agreement by an electronic communication; article 7(5) arbitration agreement in an exchange of statements of claim and defence; article 7(6) reference to any document containing an arbitration clause. There are the following issues in the draft legislative provisions on the form of arbitration agreement : arbitration agreement in writing in article 7(2); terms or contents of arbitration agreement in article 7(3); arbitration agreement by electronic communication in article 7(4); existence of arbitration agreement in article 7(5); reference to any document containing an arbitration clause in article 7(6); the alternative proposal on article 7; amendment to article 35(2).

• Journal of Arbitration Studies
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• v.29 no.2
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• pp.107-132
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• 2019

The arbitration procedure, which is a private trial, does not have a separate enforcement agency. Therefore, unless a party consents to the arbitration award and voluntarily fulfills the award, its execution is accomplished through the implementation of the national court. In particular, the decision in the foreign arbitration procedure will be refused or rejected for the arbitration award in case the proceedings of the law and procedure on which the judgment is based are caused by inconsistency with the domestic law or procedural defect. However, all foreign arbitration awards generally do not have to go through the approval process, and it will come into force with the arbitration award. In the case of Germany in the revision of the German Civil Procedure Act of 1996, the main provisions of the New York Convention concerning the ratification and enforcement of arbitration proceedings are reflected. Germany provides for the arbitration procedures in the arbitration proceedings of Book 10 of the Civil Procedure Act. Particularly, with Article 1061 in Book 10 Section 8 below, the approval and enforcement of foreign arbitrators shall be governed. Article 1061 has been referred to as "The New York Convention on the Recognition and Enforcement of Foreign Jurisdictions," Article 5 (1). The main reasons for approval and enforcement rejection are: (1) Reason for the acceptance or refusal of enforcement by request of the parties: Reason for failure of subjective arbitration ability, invalidation of arbitration agreement, collapse of attack or defense method, dispute not included in arbitration agreement, (2) Reasons for the approval and enforcement of arbitration considered by the competent authority of the arbitrator: violation of objective arbitration ability, violation of public order, but not based on the default of German statute.

• Journal of Arbitration Studies
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• v.16 no.1
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• pp.81-119
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• 2006

The parties in the trade can have full autonomy and can resolve disputes independently, impartially and without delay by selecting arbitration by agreement. Korea and Japan had revised their Arbitration Laws to incorporate as many provisions of the 1985 UNCITRAL Model Law as possible. Japan had amended its century-old arbitration law, becoming the 45th country to adopt the UNCITRAL Model Law on International commercial arbitration. New Arbitration Law was enacted as Law No.138 of 2003 and effective on March 1, 2004, is applicable to both national and international arbitration. Korea had amended its arbitration law on December 31, 1999 and its New Arbitration Law incorporates the most of the 1985 UNCITRAL Model Law as Japan. Arbitration must be popular in resolving international commercial disputes in Northeast Asian bloc in order to increase the volume of intra-trade in the Northeast Asian bloc. But in order for the parties to make use of arbitration in the bloc, the arbitration laws of nations in the bloc must have similarity and unification. As Korea and Japan playes important roles in the bloc, both nations's arbitration laws must be studied in view of similarity and difference to unify both nations' arbitration laws by way of showing an example. Therefore, this paper deals with both nations' arbitration laws in view of comparative law to unify their arbitration laws and Northeast Asian Nations' arbitration laws.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.107-133
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• 2004

In these days, arbitration helps alleviate some of the burden of a heavy caseload from the judiciary and is a viable method to resolve disputes in a relatively quick and efficient manner. An award of punitive damages is often the most significant and detrimental part of an award arising from a judicial or arbitral proceeding. In 1995, the United States Supreme Court resolved a circuit split. upholding an arbitral panel's authority to award punitive damages under a securities arbitration agreement. This decision was monumental in establishing arbitral power. However, it left several questions unanswered. For example, which, if any, standards should be applied to such awards？ The decision in Sawtelle, adopting a separate ground for review of punitive damages awards, is one that signals a significant change in the field of arbitration. This article addresses the reviewability of punitive damages awards arising out of a securities arbitration hearing. It would be necessary to introduce securities arbitration system to our disputes resolution system. Compared to American practices, there could be many differences in recognition on arbitration and legal structure in our country. Thus it will be a future assignment to consider seriously and carefully what kind of securities arbitration system will be proper for us. This article analyzed predispute arbitration agreements and agreements to arbitrate after a dispute has already arisen.

• Journal of Arbitration Studies
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• v.23 no.4
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• pp.29-53
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• 2013

Chinese ISD has been changed a lot since the reformation policy in 1978 and it is expected that China will present a changed attitude toward its advantage as its industrialization continues to advance. This study generally examines the ISD in BIT and also considers not only the attitude of China with regard to ISD but also the changes on the Chinese side. Moreover, this study determines the areas on which the Chinese government focuses. In order to conduct this study, the author attempts to classify the attitudes on ISD into chronical change and treaty powers based on the analysis of BIT. In addition, the paper examines the main contents of ISD in BIT which previously involved an agreement such as arbitral institution, arbitral range, counter-measures of local country, standard for admitting the nationality of corporate investors, and recognition and enforcement of arbitral award. Based on analysis, this paper mentions matters that require attention and caution in the Korea-China FTA as regards investment negotiation, and also suggests instructions for investors who may face dispute with the Chinese government.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.33-58
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• 2015

Arbitration clauses or institutional arbitration rules rarely, if ever, specify the law applicable to the arbitration agreement. A wide range of laws may thus govern this question, such as the law at the place of arbitration, the law where the agreement or the award is enforced or the law of the main contract between the parties. It is also conceivable that international uniform law or soft law may play a role. Tribunals and courts seized with this question must consequently decide which of these various laws shall apply to verify the existence and validity of the arbitration agreement. This paper picks up on this controversially debated conflict of laws issue. At times, this debate is characterized by a strong divide between arbitration and international trade law practitioners. But are the different approaches really leading to diverging results in arbitral practice?