• 한국중재학회지:중재연구
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• 제18권2호
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• pp.3-31
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• 2008

At its thirty-ninth session(New York, 19 June - 7 July 2006), United Nations Commission on International Trade Law(hereinafter referred to as the Commission) agreed to give priority to the topic of revising the UNCITRAL Arbitration Rules. From the forty-fifth through the forty-seventh session, the Working Group checked various issues based on the draft revised version of the UNCITRAL Arbitration Rules prepared by the Secretariat. At its forty-eighth session, the Working Group is going to finish its first reading of articles 38 to 41 of the draft revised version of the UNCITRAL Arbitration Rules, and to commence its second reading of the draft revised version of UNCITRAL Arbitration Rules. Korea is keen on enticing foreign direct investment into its territory. From the 1960s, Korea has concluded more than 80 BITs. Korea is making efforts to conclude FTAs with its trading partners. As of January, 2008, 3 FTAs have taken into effect with respect to Korea. According to provisions on dispute settlement found in such BITs and FTAs involving Korea, the Rules can be chosen for Investor-State Arbitration. Furthermore, the Rules is followed by the arbitration rules for domestic and international arbitrations administered by the Korean Commercial Arbitration Board. If the Commission adopts the revised version of UNCITRAL Arbitration Rules, the Rules will be able to give impact on the arbitration law and practice around the world of arbitration. That is the reason why we should keep attention to the development of the deliberations of the Working Group.

• 한국중재학회지:중재연구
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• 제26권2호
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• pp.67-89
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• 2016

An ADR arbitration system has a necessary value in the sports industry for settlement of disputes. Sports disputes should be resolved independently by enacting internal regulations within the basic principles of national law rather than treated as a civil action. If the dispute is not fair and transparent, it may cause distrust. Because an arbitration system has values such as speed, flexibility of economic decisions, professionalism of arbitrator and confidentiality of arbitration-related information, the efficiency of the arbitration system for conflict resolution has emerged recently. We have to assign sports experts to reactivate sports arbitration commission committees which existed from 2006 to 2009 in Korea. Many countries, such as the UK, USA, Canada, New Zealand, Hungary, the Netherlands, Poland, Germany, and Japan, which attain advancement of sports and the International Court of Arbitration establish and run their own sports arbitration agencies. However, Korea disbanded its sports arbitration commission committee for political and economic reasons. In 2012, after their disbanding, athlete Kim Yeon-kyoung came into conflict with Heungkuk Life over terms of free agent acquisition and international transfer certification. Finally they were able to settle those political conflicts. However if there had been related laws in Korea, they could have resolved those problems easily without international disputes. Practically, it would have been almost impossible for Kim Yeon-kyoung to win the dispute. But her problem became an issue after the London Olympics, so she could win. Although it is well for her to take an active role on the international stage, it left much to be desired on account of the intervention of political circles in order to resolve the conflict. If the sports arbitration commission committee in Korea had still been active, it could have come to a peaceful settlement domestically. Therefore we have to reestablish a Korean sports arbitration committee centered around experts of sports law.

• 한국중재학회지:중재연구
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• 제26권4호
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• pp.63-82
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• 2016

In order to cope with the changes of International Commercial Arbitration, the Shanghai International Economic and Trade Arbitration Commission (SHIAC) regulated an Emergency Arbitrator for the first time, implementing the arbitration rules in China (Shanghai) Pilot Free Trade Zone on May 1, 2014. Moreover, the China International Economic and Trade Arbitration Commission (CIETAC) also regulated the Emergency Arbitrator in the revised arbitration rules on January 1, 2015. However, it caused considerable contradiction that SHIAC and CIETAC admitted an interim measure decision by the Emergency Arbitrator under the circumstance that the Chinese court can impose a preservative measure in the Civil Procedure Code (CPC) and Arbiration Act. This study attempted to compare the main contents of an Emergency Arbitrator regulated in the arbitration rules of SHIAC and CIETAC with arbitration rules of representative arbitral institutions which operate an Emergency Arbitrator. In addition, this study verified the application features and problems through comparing the rule of SHIAC and CIETAC with the rule related to the preservative measure in Chinese law.

• 한국중재학회지:중재연구
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• 제32권1호
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• pp.25-42
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• 2022

The modern arbitration practice recognises the need for a faster and simplified procedural framework for international disputes with fairly low amounts at stake. This has driven several institutions to expand their offer of procedural guidelines with a simplified set of rules that would fit this purpose. Expedited arbitration is increasingly used by parties and is growing in popularity. The basic idea behind establishing expedited arbitration rules is to create the possibility for the parties to a dispute to agree on a simplified and streamlined procedure and to have an arbitration award issued within a short period. The associated cost savings for the parties is another benefit. The importance of developing rules for expedited dispute resolution has recently also been considered by the UNCITRAL Working Group II, in light of the "increasing demand to resolve simple, low-value cases by arbitration" and "the lack of international mechanisms cope with such disputes." As a result, the UNCITRAL 2021 Expedited Arbitration Rules (UNCITRAL EAR) took effect on September 19, 2021. The EAR was adopted by the Commission on 21 July 2021 and, next to UNCITRAL's well-known instruments like the Arbitration Rules (UAR) and the Model Law, represent another chapter in the Commission's impactful work in the field of international arbitration. Overall, the UNCITRAL EAR has great potential to meet the need for more flexible and efficient arbitration proceedings, primarily because they provide the tribunal with strong managerial powers while still leaving room for consultation with the parties. However, parties must remember that not all disputes may be suitable for expedited arbitration, and disputes that are complex or have the possibility of being joint or consolidated may not benefit from simplified procedures and tight deadlines. This article will outline the core features and characteristics of the UNCITRAL EAR.

• 한국중재학회지:중재연구
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• 제30권2호
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• pp.91-120
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• 2020

The Scope of Application of North Korea's Foreign Economic Arbitration Act and Foreign Investment Act This article examines whether the Foreign Economic Arbitration Act and the Foreign Investment Act of North Korea apply to South Korean parties or companies. This article analyzes laws and agreements related to economic cooperation between South Korea and North Korea. Furthermore, this article compares and evaluates laws related to foreign investment and enacted in North Korea. Now, North Korea's door is closed due to economic sanctions against it, but it will be opened soon. Thus, this article prepares for the future opening of North Korea's markets. Is there a rule of laws in North Korea or just a ruler? Are there laws in North Korea? North Korea has enacted a number of legislation to attract foreign investors, referring to those Chinese laws. For example, North Korea enacted the Foreigner Investment Act, the Foreigner Company Act, the Foreign Investment Bank Act, the Foreign Economic Arbitration Act, the Foreign Economic Contract Act, the International Trade Act, and the Free Economy and Trade Zone Act, among others. Article 2 (2) of the Foreign Investment Law of North Korea states, "Foreign investors are corporations and individuals from other countries investing in our country." It is interpreted that South Korea is not included in the "other countries" of this definition. According to many mutual agreements signed by South Korea and North Korea, the relationship between the two Koreas is a special relation inside the Korean ethnic group. An arbitration between a South Korean party and a North Korean party has the characteristics of both domestic arbitrations and international arbitrations. If the South Korea and North Korea Commercial Arbitration Commission or the Kaesong Industrial Complex Arbitration Commission is not established, the possibility of arbitration by the Chosun International Trade Arbitration Commission, established under North Korea's Foreign Economic Arbitration Act, should be examined. There have been no cases where the Foreign Economic Arbitration Act is applied to disputes between parties of South Korea and North Korea. It might be possible to apply the Foreign Economic Arbitration Act by recognizing the "foreign factor" of a dispute between the South Korean party and North Korean party. It is necessary to raise legislative clarifications by revising the North Korea's Foreign Economic Arbitration Act as to whether Korean parties or companies are included in the scope of this Act's application. Even if it is interpreted that South Korean parties or companies are not included in the scope of North Korea's Foreign Economic Arbitration Act, disputes between South Korean companies and North Korean companies can be resolved by foreign arbitration institutes such as CIETAC in China, HKIAC in Hong Kong, or SIAC in Singapore. Such arbitration awards could be enforced in North Korea pursuant to Article 64 of North Korea's Foreign Economic Arbitration Act. This is because the arbitration awards of foreign arbitration institutes are included in the scope of North Korea's Foreign Economic Arbitration Act. The matter is how to enforce the North Korean laws when a North Korean party or North Korean government does not abide by the laws or their contracts. It is essential for North Korea to join the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and the ICSID Convention (Convention on the Settlement of Investment Disputes Between States and Nationals of Other States).

• 한국중재학회지:중재연구
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• 제11권1호
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• pp.145-179
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• 2001

The Federal Maritime Commission is issuing new regulations implementing the Administrative dispute Resolution Act. The new regulations expand the Commission's Alternative dispute resolution(“ADR”) services, addressing guidelines and procedures for arbitration and providing for mediation and other ADR services. This rule replaces current subpart U-(Conciliation Service), with a new subpart U-(Alternative Dispute Resolution), that contains a new Commission ADR policy and provisions for various means of ADR. The rule also revises certain other regulations to conform to the Commission's new ADR policy. So, this paper object was to study on the FMC's ADR in U.S. with the emphasis on the final rule analysis.

• 한국중재학회지:중재연구
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• 제15권3호
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• pp.113-137
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• 2005

In the provisions of 'the Arbitration Law of China, there are special provisions for international arbitration. When a court refuses the recognition and enforcement of foreign arbitral awards or cancel the domestic awards relating to international arbitration, they have to adopt the provisions of 'Chinese Civil Procedure Law'. These provisions are the same as the provisions of Korean Civil Procedure Law concerning the reasons of renewal. In the Korean Arbitration Act, those provisions disappeared when it was revised on December 31, 1999. Among the characteristics of the Chinese arbitration system, a serious question is that it provides only institutional arbitration and there is no ad-hoc arbitration in the Chinese Arbitration Law. On the other hand, when the parties appoint three arbitrators according to their agreement, the parties appoint the third arbitrator by mutual agreement and when they fail to agree, the Arbitration Committee appoints the third arbitrator. In practice, as the parties hardly agree on the third arbitrator or sole arbitrator, the Committee usually appoints them. And appointing an arbitrator from out of their panel of arbitrators is permitted these days only under examination by the Arbitration Committee in accordance with the arbitration rules of the China International Economic and Trade Arbitration Commission, Other arbitration committees except the China International Economic and Trade Arbitration Commission are still prohibited from making appointments from out of their panel of arbitrators. Accordingly, arbitration in China cannot be predicted and poses a question about legal stability as party autonomy is restricted in the appointment of arbitrators and arbitral procedure. Such being the case it is strongly recommended to select Korea as the place of arbitration in transactions with China. However it is better to arbitrate than to file a law suit in China.

• 한국중재학회지:중재연구
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• 제14권2호
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• pp.135-172
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• 2004

While doing business in China foreign companies occasionally find themselves embroiled in disputes with Chinese individuals, companies or the Chinese Government. There are three primary ways to resolve a commercial dispute in China are negotiation, arbitration and litigation. The best way of dispute resolution is negotiation as it is the least expensive method and the working relationship of both parties concerned in dispute. But negotiations do not always give rise to resolution. Arbitration is the next choice. Unless the parties concerned can agree to resort to arbitration after the dispute has arisen, the underlying contract namely, sales contract or separate agreement must show that disputes will be resolved by arbitration. Agreements to arbitration specify arbitration body and governing law. There are two Chinese government -sponsored arbitration bodies for handling cases involving at least one foreign party: China International Economic and Trade Arbitration Commission(CIETAC) and China Maritime Arbitration Commission(CMAC) for maritime disputes. Contracts regarding foreign companies doing business in China often designate CIETAC arbitration. CIETAC distinguishes between two kinds of dispute resolutions, foreign-related arbitration and domestic arbitration. For a dispute to be classified as foreign-related arbitration, one of the companies must be a foreign entity without a major production facility or investment in China. CIETAC has published rules which govern the selection of a panel if the contract does not specify how the choice of arbitration will be handled. CIETAC's list of arbitrators for foreign-related disputes, from which CIETAC's arbitrators must en chosen, includes may non-Chines arbitrators. But many foreign experts believe that some aspects of CIETAC needs to be improved. The purpose of this paper is to improve the understanding of arbitration in China, CIETAC by way of studying the current situation and improvement of international commercial arbitration in China.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.43-70
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• 2007

The purpose of this paper is to make research on the contents and discussions of the draft of revised UNCITRAL Arbitration Rules that have been discussed and considered by the Working Group. At its thirty-ninth session (New York, 19 June-7 July 2006), the Commission agreed that, in respect of future work of the Working Group, priority be given to a revision of the UNCITRAL Arbitration Rules (1976). At its forty-fifth session (Vienna, 11-15 September 2006), the Working Group undertook to identify areas where a revision of the UNCITRAL Arbitration Rules might be useful. At that session, it was considered that the focus of the revision should be on updating the Rules to meet changes that had taken place over the last thirty years in arbitral practice. The largely amended provisions of the draft of revised UNCITRAL Arbitration Rules are as follows : Notice of arbitration and response to the notice of arbitration (Article 3), Designating and appointing authorities (Article 4 bis), November of arbitrators (Article 5), Appointment of arbitrations (Article 6), Appointment of arbitrators in multi-party arbitration (Article 7 bis), Challenge of arbitrators (Article 9), Replacement of an arbitrator (Article 13), Pleas as to the jurisdiction of the arbitral tribunal (Article 21), Interim measures (Article 26), Form and effect of the award (Article 32), and Liability of arbitrators (Proposed additional provisions). There are some differences between the draft of revised UNCITRAL Arbitration Rules and the KCAB Arbitration Rules. In order to jnternationalize the Korea's commercial arbitration system, it is desirable that the main articles of the draft of revised UNCITRAL Arbitration Rules should be admitted to the KCAB Arbitration Rules. In conclusion, the Commission was generally of the view of any revision of the UNCITRAL Arbitration Rules should not alter the structure of the text, its spirit, its drafting style, and should respect the flexibility of the text rather than make it more complex. The Working Group agreed that harmonizing the provisions of the UNCITRAL Model Law should not be automatic but rather considered only where appropriate.

• 무역상무연구
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• 제50권
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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.