• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.27
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• pp.29-65
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• 2005

Northeast Asian economies have achieved high levels of growth due to a stable economic environments and economic policy reforms for free trade. As Northeast Asia has been risen as big bloc in the world and in the future in case free trade agreement could be concluded, trade volume could be increased dramatically. And it is evident that disputes will be increased in Northeast Asian economic bloc. Arbitration must be popular in resolving international commercial disputes in Northeast Asian bloc in order to increase the volume of intra-trade in the bloc. Through arbitration, the parties can have full autonomy and can resolve disputes independently, impartially and without delay. But in order for the parties to make use of arbitration in the bloc, they must be fully aware of the arbitration laws of Northeast Asian nations in view of the similarity and difference of the laws. Therefore, this paper deals with arbitral award in Northeast Asian Nations' arbitration laws in view of comparative law.

• Journal of Arbitration Studies
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• v.19 no.3
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• pp.3-24
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• 2009

This article discusses the validity of selective/unilateral arbitration agreement that provides arbitration as one of several dispute resolution methods. The Supreme Court has held selective/unilateral arbitration agreement that is conditional invalidity since the judgement of 2003Da318 decided on Aug. 22, 2003: In the following judgements of 2004Da42166 decided on Nov. 11, 2004 and 2005Da12452 decided on May 27, 2005, the Court stated that the selective/unilateral arbitration agreement that stipulates to resolve a dispute through arbitration or mediation would be valid as an effective arbitration agreement only if a party elects and proceeds an arbitration proceeding and another party responses to the arbitration proceeding without any objection. The definition of arbitration agreement, the formation of selective/unilateral arbitration agreement, the summary of relative judgements and academic theories will be reviewed in order to examine the appropriateness of the series of judgements of the Supreme Court. Based on such reviews, this article will investigate the adequacy of the Supreme Court judgements from the perspectives of i) the principle of party autonomy, ii) the structure of dispute resolution methods, iii) legal provisions of Arbitration Act, iv) legal stability, and v) the policy to revitalize the use of arbitration. At conclusion, this article will suggest the change of precedents of the Supreme Court's judgements with regard to the selective arbitral agreement.

• Journal of Arbitration Studies
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• v.19 no.3
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• pp.161-178
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• 2009

This article focuses on the enforceability of arbitration agreements m the dispute of standby letter of credit, especially with the case analysis of the leading case from the U.S. Bankruptcy Court. In Nova Hut a.s. v. Kaiser Group International Inc. case, while the underlying contract contained an arbitration clause, a guarantee to assure contractor's performance did not contain an arbitration clause. Nova Hut drew on the standby for the Contractor's failure to deliver contractual obligations. Against the Kaiser's action under US Bankruptcy law, Nova Hut moved to stay the proceedings pending arbitration, to compel arbitration, and to dismiss the complaint. The US Bankruptcy Court for the District of Delaware denied Nova Hut's motions. On appeal, Kaiser argued that it was not subject to arbitration since it was not a party to the contract. It also argued that Nova Hut had waived its right to arbitration by filing a proof of claim in the bankruptcy proceeding and commencing legal actions in other countries. The appeals court noted that in order to avoid arbitration on those grounds prejudice must be shown. It indicated that because there was no long delay in requesting arbitration and no discovery conducted m the course of litigation, the Kaiser could not demonstrate actual prejudice on the part of Owner. In light of public policy favoring arbitration, the nature of the claims in the parties' agreements, Kaiser's conduct in embracing the agreements, and their expectation of benefit, the appeals court ruled that the doctrine of equitable estoppel applied in requiring the Parent to arbitrate.

• Journal of Arbitration Studies
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• v.14 no.1
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• pp.377-413
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• 2004

North Korea and South Korea agreed to refer their investment disputes to arbitration by adopting' Agreed Minutes on Procedures of Settlement of Commercial Disputes' on 16th December 2000. According to the Agreed Minutes, the two Koreas were to establish an arbitration commission within 6 months after the Agreed Minutes had been signed. In 2002, North Korea enacted laws to draw interest of foreign tourists to Mountain Kumgang and to boost investment into the region of Kaesung as it provided in those laws that commercial disputes should be settled by arbitration or judicial procedures. In October 2003, the two Koreas succeeded in adopting another Agreed Minutes as to the establishment and functioning of North-South Arbitration Commission. The fact that the two Koreas have agreed to establish an arbitration commission is meaningful since they are leading their lives quite differently in political, social, and economic sense for more than a half century. Although there still remain doubts as to the North Korean policy on nuclear matters, an arbitration commission could be a cornerstone for the set-up of the dispute settlement system between the two Koreas and a great help for investors from South Korea to pursue their possible legal claims as North Korea is eager to invite South Korean businessmen and other foreign investors to invest in its special economic areas. According to the Agreed Minutes of 2003, the two Koreas are going to adopt procedural rules for the arbitration commission. It will be a great challenge for them to agree on specific issues as to the operation of the arbitration commission. They have to set up a rester of arbitrators respectively and may have to enact or revise their own arbitration laws and rules reflecting the Agreed Minutes of 2000 and 2003. It is quite welcome that the two Koreas have agreed to set up an arbitration commission rather than resort to political or diplomatic means to settle their disputes. The success of the arbitration system between the two Koreas will make sure the safety of investment environment in the northen part of the Korean Peninsula and will bring the peace to the Korean peninsula earlier than expected.

• Journal of Arbitration Studies
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• v.29 no.2
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• pp.65-88
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• 2019

The ICC International Court of Arbitration ('the ICC') has published the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration ('2019 Revised Note) which came into force on the 1st of January 2019. The 2019 Revised Note is aimed at providing parties and arbitral tribunals with practical guidance regarding the conduct of arbitrations pursuant to the ICC Arbitration Rules as well as the practices of the ICC. Unless otherwise stipulated, the 2019 Revised Note applies to all ICC arbitration cases, regardless of the version of the ICC Arbitration Rules, in accordance with which they are conducted. The most noteworthy amendment is the introduction of provisions on a new mandatory transparency system by setting forth the publication of the arbitration case data and arbitral awards, maintaining the rule stipulating the provision of information regarding arbitral tribunal under the ICC 2016 Note. Among others, the 2019 Revised Note provides that parties and arbitrators in ICC arbitrations accept that ICC awards made as of the 1st of January 2019 may be published, excluding some exceptions. Under this circumstance, this paper i) explains five amendments of the 2019 ICC Revised Note, ii) examines major issues regarding the publication of information of arbitral tribunal and awards, iii) makes a comparative analysis of that attitude of 11 international arbitration institutions, and lastly iv) suggests recommendations for the Korean arbitration community.

• Journal of Arbitration Studies
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• v.22 no.2
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• pp.125-157
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• 2012

This study is to vindicate the vacation of arbitral awards in the United States. It focuses on the harmony of case law with statutory law of the United States. Until the early twentieth century, the American legal system, having adopted the English common law view, harbored a hostile attitude toward arbitration. The purpose of the Federal Arbitration Act (FAA) of the United States, enacted in 1925, was to eliminate the hostile attitude of courts toward arbitration. Congress is to enforce arbitration agreements into which parties have entered and to place arbitration agreements upon the same footing as other contracts. The structure of grounds for vacating arbitration awards has two layers. One is of vacating grounds with statutory origins, such as the FAA and the Uniform Arbitration Act, and the other, of vacating grounds originating from a nonstatutory, case law background. For a while, vacatur based on case law has coexisted with vacatur on statutory grounds for arbitration awards. After the Supreme Court decision in Hall Street Associates, L.L.C. v. Mattel, Inc., however, the justification of vacating based on case law has weakened. Post-Hall Street decisions of circuit courts show ways to deal with manifest disregard of the law. One of them is the harmonization of the case law grounds for vacating with the statutory grounds. It seems that the manifest-disregard-of-law and public-policy exceptions show a possibility of survival after Hall Street. However, other nonstatutory grounds for vacation of arbitration awards have no firm basis after Hall Street.

• Journal of Arbitration Studies
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• v.17 no.2
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• pp.101-124
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• 2007

The legal systems and open-door policies to foreign affairs in North Korea have been followed by those of China. Whereas an arbitration system of South Korea accepted most parts of UNCITRAL Model Law, North Korea has succeeded to an arbitration system of a socialist country. China, under the arbitration system of socialist country, enacted an arbitration act reflected from UNCITRAL Model Law for keeping face with international trends. We have used these three arbitration system as a tool for analyzing an arbitration system in North Korea. With an open-door policy, North Korea and China enacted an arbitration act to provide a legal security. Therefore, the core parts of arbitration system in North Korea and China are based on a socialist system while those of South Korea is on liberalism. So, North Korea and China enacted an arbitration act on the basis of institutional arbitration, on the other side, South Korea is based on ad-hoc arbitration. Because of these characters, in terms of party autonomy, it is recognized with the order as South Korea, China and North Korea. Also North Korea enacted separate 'Foreign Economic Arbitration Act' to resolve disputes arising out of foreign economies including commercial things and investments. There are differences in arbitration procedures and appointment of arbitrators : South Korea recognizes parties' autonomy, however parties should follow the arbitration rules of arbitration institutes in North Korea and China. According to an appointment of arbitrators, if parties fail to appoint co-arbitrators or chief arbitrators by a mutual agreement, the court has the right to appoint them. In case of following KCAB's rules, KCAB secretariats take a scoring system by providing a list of candidates. A party has to appoint arbitrators out of the lists provided by arbitration board(or committee) in North Korea. If a party may fail to appoint a chief arbitrator, President of International Trade Arbitration Board(or Committee) may appoint it. In China, if parties fail to appoint a co-arbitrator or a chief arbitrator by a mutual agreement, Secretary general will decide it. If a arbitral tribunal fails to give a final award by a majority decision, a chief arbitrator has the right for a final decision making. These arbitration systems in North Korea and China are one of concerns that our companies take into account in conducting arbitration procedures inside China. It is only possible for a party to enforce a final arbitral award when he applies an arbitration inside North Korea according to International Trade Arbitration Act because North Korea has not joined the New York Convention. It's doubtful that a party might be treated very fairly in arbitration procedures in North Korea because International Trade Promotion Commission controls(or exercises its rights against) International Trade Arbitration Commission(or Board).

• Journal of Arbitration Studies
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• v.18 no.1
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• pp.71-96
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• 2008

Arbitration is fundamentally a matter of contract, whereby contractual parties may only be required to submit a dispute to arbitration pursuant to their formal agreement. However, there are several important exceptions to this rule that have developed under common law notions of implied consent. These doctrines may serve either to benefit or to harm a nonsignatory to an arbitral agreement because either (1) the nonsignatory may compel a signatory to the agreement to arbitrate a dispute or (2) the nonsignatory may be compelled to arbitrate a dispute despite never having signed an arbitration agreement. The Court has a long-standing domestic policy of favoring arbitration, and these doctrines reflect that policy. 1. incorporation by reference An arbitration clause may apply to a party who is a nonsignatory to one agreement containing an arbitration clause but who is a signatory to a second agreement that incorporates the terms of the first agreement. 2. assumption An arbitration clause may apply to a nonsignatory who has impliedly agreed to arbitrate. Under this theory, the nonsignatory's conduct is a determinative factor. For example, a nonsignatory who voluntarily begins arbitrating the merits of a dispute before an arbitral tribunal may be bound by the arbitrator's ruling on that dispute even though the nonsignatory was not initially required to arbitrate the dispute. 3. agency A nonsignatory to an arbitration agreement may be bound to arbitrate a dispute stemming from that agreement under the traditional laws of agency. A principal may also be bound to arbitrate a claim based on an agreement containing an arbitration clause signed by the agent. The agent, however, does not generally become individually bound by executing such an agreement on behalf of a disclosed principal unless there is clear evidence that the agent intended to be bound. 4. veil piercing/alter ego In the corporate context, a nonsignatory corporation to an arbitration agreement may be bound by that agreement if the agreement is signed by its parent, subsidiary, or affiliate. 5. estoppel The doctrine of equitable estoppel is usually applied by nonsignatory defendants who wish to compel signatory plaintiffs to arbitrate a dispute. This will generally be permitted when (1) the signatory must rely on the terms of the contract in support of its claims against the nonsignatory, or (2) the signatory alleges that it and the nonsignatory engaged in interdependent misconduct that is intertwined with the obligations imposed by the contract. Therefore, this article analyzed these doctrines centering around case-law in America.

• Health Policy and Management
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• v.31 no.3
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• pp.280-291
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• 2021

Background: Based on the fact that the Korea Medical Dispute Mediation and Arbitration Agency is a public institution established by social demands for medical disputes, this study reviews the publicness of public organization and discusses its policy implications. Methods: Through Moore's strategic triangle, which consists of legitimacy and support, public value and operational capacity, the process of creating public value is examined. For the analysis, case studies were conducted using related literature data from 2012, when the agency was established, to the present. Results: As a result of the analysis, first, the related law examined in the operational capability has been revised dozens of times, but the revised law has its own contradictions and limitations. The human resource system is also being improved, but there is a problem with the fairness and reliability of the arbitration process, especially due to the limitations of the appraiser system. Second, in terms of legitimacy and support, a regional gap occurred despite efforts to improve accessibility through the expansion of the organization. And the arbitration agency failed to reconcile conflicts caused by stakeholders' perception of each other as a trade-off relationship. Third, the public value result shows that, despite many explicit (statistical) achievements, citizens' use of the past dispute resolution means (litigation) has not decreased. Likewise, the perception of value makers (citizens) is important for creating public value as an invisible result, but it has not yet been formally investigated, so the performance can not be recognized. Conclusion: While the organization's efforts for continuous change and improvement are encouraging, it is not perceived as a better means of resolving disputes and improving quality of services. Therefore, it is necessary to reconsider the institutional design centered on value creators.

• Journal of Arbitration Studies
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• v.11 no.1
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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.