• 한국중재학회지:중재연구
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• 제16권2호
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• pp.51-88
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• 2006

The obligation on a national court to recognize and enforce arbitral awards as provided in Article III New York Convention, which both Korea and China have ratified, is subject to limited exceptions. Recognition and enforcement will be refused only if the party against whom enforcement is sought can show that one of the exclusive grounds for refusal enumerated in Article V(1) New York Convention has occurred. The court may also refuse enforcement ex officio if the award violates that state's public policy. This article explores the circumstances where arbitral awards may be refused enforcement under the Korean and Chinese arbitration laws. It first analyzes the relevant statutory provisions. In Korea and China, which have adopted the UNCITRAL Model law, the grounds of challenge are exhaustively defined within their respective arbitration laws. According to their arbitration laws, an arbitral award may be set aside if a party making the application proves that (i) a party to the arbitration agreement was under some incapacity or the agreement is not valid under the applicable law, (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case, (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration, or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. An arbitral award may also be set aside ex officio by the court if the court finds that (i) the subject-matter of the dispute is not capable of settlement by arbitration under the applicable law or (ii) the award is in conflict with the public policy. This article then reviews relevant judicial decisions rendered in Korea and China to see how the courts in these countries have been interpreting the provisions specifying the grounds for challenging arbitral awards. It concludes that the courts in Korea and China rarely accept challenges to arbitral awards, thereby respecting the mandate of the New York Convention.

• 한국중재학회지:중재연구
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• 제28권4호
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• pp.153-172
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• 2018

In solving international commercial disputes, arbitration has a unique advantage. Therefore, when most parties sign a charter party, they contain arbitration clauses. Whether the arbitration clause in the charter party can be effectively incorporated into the bill of lading and bind to the third party-bill holder becomes an important issue. Based on the problem above, this paper compares the arbitration system between Korea and China, and discusses the composition of the Chinese Maritime Court and the Chinese court's adjudication of arbitration for foreign countries, which are recognized and enforced in China. What is most important in this study is observing the Chinese case from the beginning of 2000 to the present in order to rule whether the Chinese court can effectively incorporate the arbitration clause in the charter party into the bill of lading, as well as whether it constitutes an effective binding force for third parties and changes in standard of recognition. Finally, through comparative analysis, the study concludes that in China, the arbitration clause in the charter party can be effectively incorporated into the bill of lading, and that the conditions for the third parties can be effectively restrained. There must be several points to be noted when recording the bill of lading. This would then help reduce the legal risks and promote the sustainable development of international transactions.

• 한국중재학회지:중재연구
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• 제29권4호
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• pp.121-140
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• 2019

China, Hong Kong, Macao, and Taiwan have a singular political relationship. This distinctive relationship creates a unique impact on the nationality of the arbitral awards among the said countries. Each of these regions does not adopt the arbitral award of the other party as either a foreign arbitration award or a domestic arbitration award, but separately adopts the arbitral award in different jurisdictions within the same country. Therefore, in order to approve and enforce their arbitral awards in other areas, they have no choice to apply special laws or the conventions concluded between them, neither the New York Convention nor the individual arbitration laws in those areas. Therefore, this paper reviewed the convention and self-established laws among China, Hong Kong, Macao, and Taiwan regarding the approval and execution of the other arbitral awards. In addition, the domestic laws in China, Hong Kong, Macao, and Taiwan are compared with the New York Convention to ascertain the criteria for distinguishing domestic and foreign arbitral awards. This study also compared and analyzed what criteria were established for the determination of the nationality of the arbitral awards in the domestic law or the convention concluded in pan China. Through the analysis of these contents, the characteristics and problems of criterion for the determination of nationality among China, Hong Kong, Macao, and Taiwan were identified. Based on the results, this study examined the precautions Korean companies entering these regions should use in the arbitration system in these areas.

• 한국중재학회지:중재연구
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• 제26권2호
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• pp.3-25
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• 2016

Lately each country tends to provide neutrality and ease of enforcement in order to settle disputes related to international trade through commercial arbitration. In order to expand the use of arbitration systems, most countries accept arbitration agreements as an effective tool agreed between parties that express their intent to settle disputes by the arbitration. It is applied equally to selective arbitration agreements and parties can select either arbitration or lawsuit to settle disputes based on the contract intent for selective arbitration agreements. However, China does not admit the effectiveness of selective arbitration agreements. Chinese courts regard selective arbitration agreements as not valid because the contract of a selective arbitration agreement between parties is not a definite expression to only use the arbitration and there is no exclusion of court jurisdiction. Therefore, the study attempts to consider effective conditions for selective arbitration agreements in the Chinese arbitration act and other relevant regulations, and also verifies the judgment by Chinese courts on relevant disputes. As a result, the study explores some problems and implications of Chinese selective arbitration agreements and suggests some precautions in case Korean companies pursue selective arbitration agreements with Chinese enterprises and investors.

• 한국중재학회지:중재연구
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• 제33권4호
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• pp.37-67
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• 2023

중재는 공정하고 효율적인 분쟁해결 방법이다. 또 현대사회에서 경제발전으로 인하여 소송제도를 보완하는 매우 중요한 기능을 하고 있다. 중재제도는 고대부터 각국이 분쟁해결을 위해 각자의 전통적인 방식으로 형성되었으며, 법학의 발달과 함께 중세부터 점차적으로 법적 보장이 명확한 제도로 확립되었다. 중국에서 중재제도가 입법화 된 것은 근대 민국시대(民国时期)이지만, 분쟁 해결 방법으로 중재가 등장한 것은 고대 진한시대(秦汉时期)로 거슬러 올라간다. 현대에서 중재와 관련한 입법은 1995년에 공포한 '중재법'이다. 입법 당시 외국의 중재법과제도등에 대한 경험을 참고하였다. 하지만, 현재에 있어 중국 '중재법'은 여전히 많은 문제를 안고있다. 즉, 경제발전으로 인해 다양한 안건이 발생하면서 분쟁도 진화하고 있기 때문이다. 이에 중국의 현행 '중재법'은 개정 중에 있다. 중재법의 개정에 있어 중국의 역사적 경험을 어느 정도 참고할 수 있을 것이다. 중국에서 발생하는 분쟁 안건에 있어 중재가 고대부터 중세 및 근대, 그리고 현재에 이르기까지 경험과 특징을 살핌으로써 개정안에 좋은 시사점을 제공할 것이라 본다. 특히, 현대의 상사중재제도가 외국의 법문화로부터 중국에 도입된 후 그 역할과 효과에 대해 중국 전통의 중재제도를 분석함으로써 더 나은 개선방안을 제시 할 것이다. 이에 본 연구에서는 중국의 고대에서 현대에 이르기까지 중재제도의 기능에 대하여 연혁적으로 살펴보고, 현재 개정 중인 '중재법'에 중국 전통 중재제도가 주는 시사점이 무엇인지 검토한다. 이를 통해 장래 중국의 중재제도의 발전은 물론, 그 가치를 확인하는 좋은 연구자료가 될 것이라 본다.

• 한국중재학회지:중재연구
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• 제24권4호
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• pp.29-47
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• 2014

In recent years, with the rapid development of electronic commerce, companies engaging in e-commerce want to take advantage of fast and easy way to solve ever-growing disputes online. South Korea's e-commerce disputes are mainly solved by mediation process of Korea E-commerce Mediation Committee. The whole process of online mediation can be carried out by the network, with the advantages of high efficiency and speed. On the other hand, the introduction of CIETAC's online Arbitration Rules in China meets the actual needs. Especially the requirement of hearing trials' procedures should be easier and faster, making the dispute can be resolved in a short time. Furthermore, the whole process from applying to ruling is conducted online, which meets the needs of e-commerce business that want to solve the disputes faster and more efficient. In addition, the cost of online arbitration is much lower than the average arbitrations. The implementation of the CIETAC's Online Arbitration Rules, will further promote the development of e-commerce in China. With the increase of trade volume between China and Korea, the e-business are also increasing. Although South Korea has not yet implemented online arbitration until now, CIETAC's effort for combining arbitration and mediation have good implications for development Korea's e-commerce online dispute system to promote e-Commerce between Korea and China.

• 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.

• 무역상무연구
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• 제63권
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• pp.133-156
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• 2014

With the development of Chinese commercial arbitration, there have been a large number of cases regarding the parties raised objection to the jurisdiction in arbitration and judicial practice. The argument relating to dealing with the subject matter, time limitation, identified subject of arbitration objection to the jurisdiction as well as the inadequate of Chinese Arbitration Law and relevant judicial interpretations has caused adverse impact on the conduct of the arbitration proceedings. This paper firstly look ar the overview of the arbitration jurisdiction objection, mainly on the arbitration jurisdiction objection determination and what is arbitration jurisdiction objection. The raise and abandonment of the arbitration objection to jurisdiction then will be analyzed in terms of subject, form, time and the legal consequences of giving up. The third part illustrates the handling of arbitration jurisdiction objection, main body, practices, procedures and whether the arbitration objection to jurisdiction is established. And the last part discuss how the condition of effectiveness on the arbitral agreement applies to through Chinese cases. Finally, the author suggests some cautions and countermeasures relates to arbitration agreement for domestic investors and traders dealing with the Chinese partner.

• Journal of Korea Trade
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• 제24권6호
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• pp.101-114
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• 2020

Purpose - This paper examines the "Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region" (the Arrangement), which became effective on October 1, 2019, calling on courts of mainland China and Hong Kong for reciprocal commitment in support of court-ordered interim measures in aid of arbitral proceedings. Because the Hong Kong courts have granted interim measures in aid of arbitral proceedings seated in and outside of Hong Kong even prior to the Arrangement becoming effective, this paper focuses on the significance of the Arrangement making Hong Kong the first and only seat outside of mainland China from which parties to arbitral proceedings may successfully obtain interim measures to preserve of assets, properties, and/or evidence from Chinese courts to be enforced in China. Design/methodology - The significance of interim measures in international arbitration and the existing circumstances of interim measures in support of international arbitral proceedings in mainland China and Hong Kong are discussed first in this paper. Due to the confidential nature of arbitral proceedings, while the details of applications for interim measures pursuant to the Arrangement cannot be discussed, in examining the implications of the Arrangement, the relevant and necessary information was made available from the Hong Kong International Arbitration Centre, as it is one of the six qualified arbitral institutions under the Arrangement. Findings - This groundbreaking Arrangement provides a mechanism for parties with China-related matters to more effectively resolve their disputes, the opportunity for Hong Kong to become an unparalleled seat of arbitration, and for mainland China to overcome some of its negative perceptions in international arbitration. Because the Arrangement also allows parties to directly apply for interim measures from mainland Chinese courts, parties with China-related matters should take note of this potential bypassing of the procedural hurdle, which usually requires an arbitral institution to submit such applications in China, and make strategic decisions accordingly as may be appropriate. Originality/value - Because the Arrangement is a recent yet a significant agreement calling on courts of mainland China and Hong Kong for reciprocal commitment in support of court-ordered interim measures in aid of arbitral proceedings, this study will provide useful guidance for parties with China-related matters all over the world, especially in light of China's rapid economic growth and extensive and prominent trade relationships in today's world. Parties who foresee the need for interim measures from mainland Chinese courts should designate Hong Kong as their seat of arbitration and select one of the six qualified arbitral institutions under the Arrangement to administer their arbitral proceedings in order to benefit from the Arrangement.

• 한국중재학회지:중재연구
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• 제25권3호
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• pp.113-133
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• 2015

This article reviews some recent decisions of the Supreme People's Court (SPC) of the People's Republic of China (PRC) on the recognition and enforcement of several South Korean arbitral awards. It explains the implementation of the New York Convention in the PRC and in particular the so-called Report System under the current Mainland Chinese law and judicial practice. It identifies some deficiencies in the People's Courts' approaches to the application and interpretation of the New York Convention and argues that the Mainland Chinese courts should adopt the pro-enforcement principle in the determination of the relevant issues under the New York Convention. It proposes further enhancement of the Report System and that the current categorization of 'domestic, foreign-related and foreign' in the context of arbitration agreements and arbitral awards needs to be further reviewed and clarified by the SPC. Last but not the least, it recommends some steps that South Korean parties should take to enhance the enforceability of South Korean Arbitral Awards in Mainland China.