• 한국중재학회지:중재연구
• /
• 제31권3호
• /
• pp.3-23
• /
• 2021

England is a significant base for international trade in Europe, and dispute resolution through arbitration is active. Therefore, due to the geographical relationship with the European continent, the settlement of trade transactions and disputes with European countries is one of the most essential tasks. In this regard, arbitration procedures in England have been actively used for a long time. In England, dispute resolution methods through arbitration have been developed centered on merchant groups such as guilds from the 16th century and have been actively used until today. However, the arbitration procedure also had the characteristics of the common law because there was no legislation related to arbitration. Therefore, arbitration based on common law was carried out until the first half of the 19th century. In the 'Arbitration Act 1889', two types of arbitration systems, 'common law arbitration' and 'statutory arbitration' coexisted. However, in the arbitration procedure, according to the newly enacted 'Arbitration Act 1889', the arbitration agreement was binding from the time the arbitration agreement was reached. There was a way to select an arbitrator even if it was not explicitly stipulated in the arbitration agreement, and the arbitration award was quickly enforced. Arbitration under contract was preferred over common law arbitration, where withdrawal and revocation of awards were possible. However, in response to these provisions, the England courts considered the arbitration system to deprive the courts of jurisdiction, while a strengthened judicial review of arbitration procedures was done. In particular, England unified the arbitration-related laws, which had been scattered for a long time, adopted the model law, and enacted the 'Arbitration Act 1996'. Under the recognition and enforcement of arbitral awards in 'Arbitration Act 1996', Section 66 deals with the recognition and enforcement of arbitral awards and foreign arbitral awards. Section 2 of the 'Arbitration Act 1950' is inherited and used as it is. Second, it deals with the execution of arbitral awards under the New York Convention: Article 100 (New York Convention), Section 101 (Approval and Enforcement of Awards), Section 102 (Evidence Presented by a Party Seeking Recognition and Enforcement), and Section 103 (Provides Matters Concerning Rejection Recognition and Enforcement).

• 한국중재학회지:중재연구
• /
• 제22권3호
• /
• pp.141-163
• /
• 2012

In Korea, although nearly all maritime arbitration cases are dealt with by the Korean Commercial Arbitration Board (KCAB), the total number of cases that are referred to the KCAB is relatively small compared with the total number of maritime cases that occur in Korea. There may be reasons why maritime arbitration is not utilized more in Korea. However, of the above reasons, the superseding one may be that there is still a lack of confidence in the credibility and foreseeability of maritime arbitration in Korea. To expand the use of maritime arbitration in Korea, it is essential that the base surrounding maritime arbitration be expanded. In addition, it is also necessary that specialists receivetraining in maritime law. In this context, it is strongly recommended that maritime and admiralty law be taught in law schools and be included as a regular subject on the Korean bar exam. Additionally, to promote maritime arbitration, a rule should be introduced allowing for shortened arbitration proceedings in Korea. Although Chapter 8 of the KCAB Arbitration Rules provide for "Expedited Procedure," this process alone is not because the rules for Expedited Procedure generally apply in arbitration cases where both parties have agreed in a separate agreement to follow the procedures provided or in any domestic arbitration valued atless than 100,000,000 Korean won. Therefore, the KCAB Arbitration Rules for Expedited Procedure must be reformed to encompass international arbitrations. Additionally, experts who are experienced in the maritime sector should be elected as arbitrators. Given the factthat a fair number of arbitration cases can be characterized as international, it is important that businesspersons who are very fluent in English be appointed as arbitrators in order to increase the reliability of maritime arbitration in Korea and save costs. Meanwhile, because lawyers and scholars constitute a considerable portion of KCAB arbitrators, commercial persons from relevant industries should be enlisted as arbitrators. Even though there are arguments for the establishment of an independent maritime arbitration board in Korea, establishment of a separate maritime arbitration board will not directly guarantee the prosperity of maritime arbitration in Korea. Instead of instituting a new maritime arbitration board, it is better that a reorganized KCAB modify existing arbitration proceedings to make them faster and more economical if maritime arbitration is to prosper. In this regard, ad-hoc arbitration would be an option for speedy and thrifty maritime arbitration. Finally, to gain the confidence of domestic and foreign parties, we cannot ignore the importance of advertising the specialties and qualifications of the KCAB and its personnel among business entities.

• 한국중재학회지:중재연구
• /
• 제14권2호
• /
• pp.173-198
• /
• 2004

Recently in Korea, franchise system has been specially used in the distribution industry. However, it also brought up many problems caused by various issues between franchisor and franchisee. The purpose of this article is to review recent trend of the franchise transaction contracts and resolution of the disputes in Korea. And to expand to use of ADR(Alternative Dispute Resolution) system as a practical dispute settlement procedure including mediation and arbitration. Arbitration means a procedure to settle any dispute in private laws, not by the adjudication of a court, but by the award of an arbitrator or arbitrators, as agreed by the parties. Arbitration agreement is a prerequisite for either party to a dispute to commence arbitral proceeding and may be in the form of a separate agreement or in the form of an arbitration clause in a contract and shall be in writing.

• 한국중재학회지:중재연구
• /
• 제13권2호
• /
• pp.403-424
• /
• 2004

In the solutions of civil disputes, there are decision of a court and alternative dispute resolution. Arbitration is one of alternative dispute resolutions. The decision of a court is the compulsory settlement and the solution by citizenship between two opposing parties, but arbitration is the autonomous and voluntary settlement by a private person, that is arbitrator. Besides these points, arbitration has various features in comparison with a decision of a court. The procedure of arbitration is not open to the public and single trial system guarantees speedy solution of disputes In the procedure of arbitration, arbitrator who pass judgement is selected and appointed by the parties to an affair. And there are questions how the arbitrator to become independent from them. Because Arbitration is not agreed solution which based on the concession between opposing two parties but imposed solution which is alike decision of a court. This study illustrates the system of challenge on arbitrator to guarantee independence of arbitrators.

• 한국중재학회지:중재연구
• /
• 제27권4호
• /
• pp.133-156
• /
• 2017

The purpose of this paper is to take a countermeasure of the investment treaty arbitration that Lone Star claimed to the Korean government. In particular, this study suggests procedural measures to be prepared by the Korean government after the arbitration award. The actual remedy in ICSID arbitration is the annulment procedure of arbitration award. Therefore, this study analyzed the measures that the Korean government can prepare based on the annulment grounds: the inadequacy of the constitution of the arbitral tribunal, the excessive power of the arbitrator, the corruption of the arbitrator, and the serious violation of the rules. First, the Korean government should decide whether to proceed with the annulment procedure after the arbitration award. Second, if they decide to do it, they should review the grounds of annulment. For example, it is possible to analyze whether the relationship between the arbitrator and Lone Star can be properly in the constitution of the arbitral tribunal, whether Lone Star is eligible to apply for ICSID arbitration, or whether arbitration tribunal ignores the crucial evidence that can affect the arbitration award. Independently, the Korean government needs to discuss the investment arbitration appeal system in a long-term perspective.

• 한국중재학회지:중재연구
• /
• 제29권2호
• /
• pp.161-199
• /
• 2019

As international trades between Korea and China increase, the number of civil disputes also increases. The civil dispute settlement system and the court system in China are distinctive from those of Korea. China has its own court systems which are characterized by the Chinese Communist System. Due to the influence of the decentralized local autonomy tradition, the case laws of each Province in China are not unified throughout the China. This is partly because only two instances are provided in China, and the parties cannot appeal to the Supreme People's Court of China unless there is a special reason. In Korea, three instances are provided and parties can appeal to the Supreme Court if a party so chooses. In addition, there are many differences in the judicial environment of China compared to Korea. Therefore, if there is a dispute between a Korean party and a Chinese party, arbitration is recommended rather than court litigation. This article examines the points to be considered for interim measures in China during arbitration. Where the seat of arbitration is Korea, interim measures cannot be taken by the order of the Chinese court in the middle of or before arbitration procedures. On the other hand, it is possible to take interim measures through the Chinese court in the middle of or before the arbitration procedure in China or Hong Kong. It also reviews the points to be noted in case of the enforcement of arbitration awards in China where permission from the upper Court is required to revoke or to deny the recognition or enforcement of a foreign-related or foreign arbitration award.

• 한국중재학회지:중재연구
• /
• 제23권1호
• /
• pp.55-84
• /
• 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.

• 한국중재학회지:중재연구
• /
• 제31권4호
• /
• pp.51-70
• /
• 2021

Chinese courts seem to be indifferent or ignorant of truncated arbitration. In other words, the Chinese court canceled the arbitration award made by truncated arbitration except for the Pingdingsan Case among the four arbitration cases related to the domestic arbitration award reviewed in this paper on the ground that it violated the composition of the arbitral tribunal or the arbitration procedure. A Chinese court has canceled the arbitration award by judging only based on the composition of the arbitral tribunal and the legal process of the violation of the arbitration procedure not by determining whether the domestic arbitration award made by the truncated arbitration meets the conditions for the application of truncated arbitration as stipulated in the Arbitration Rules. Moreover, it seems that the Chinese court made a serious error in the application of the relevant regulations in the Pingdingsan Case, which ruled that the truncated arbitration did not violate the legal process. In this case, the Chinese court admitted truncated arbitration under logic process that it was not necessary to wait until the final hearing to apply the truncated arbitraion because one arbitrator was absent before the final hearing, but the truncated arbitrator had already formed his/her opinion before the absence. However, in the case of Marshall Investment Corporation, a case related to foreign arbitration, the Chinese court rejected the approval and execution of the truncated arbitration award by strictly applying the laws and timing of the truncated arbitration. Since only one case has been identified in the main text, it is difficult to make a definitive judgment, but considering these cases, it seems to be that the Chinese courts apply different standards to domestic and foreign arbitration awards to determine the legality of truncated arbitration.

• 한국중재학회지:중재연구
• /
• 제28권2호
• /
• pp.45-66
• /
• 2018

Two years ago, an emergency arbitrator procedure in accordance with the international arbitration rule has been finally adopted in Korea?a decade after its introduction. Arbitral institutions provide interim measures in the course of tribunal proceedings to avoid litigation in open court that is often expensive and time-consuming. An emergency arbitrator procedure offers an urgent relief prior to the constitution of an arbitral tribunal, thus enhancing the speed and effectiveness of the arbitration procedure even further. Although most of the arbitral institutions interpret that the emergency arbitration rulings are binding on the parties, enforcing the emergency arbitration provisions have some difficulties in practice, and it is not clear whether or not arbitral interim measures will be enforceable under the newly adopted provisions in Korea. In this study, experiences in other countries are explored in seeking for the possible problems and solutions of enforcing the emergency arbitration rulings. For example, Singapore and Hong Kong insert terms such as "finality," "enforceable in the same manner as an order or direction of the Court," "same effect as an arbitral tribunal or interim measures" in their emergency arbitrator legislation to enhance enforcement. Moreover, "urgency inherent" are considered.

• 한국중재학회지:중재연구
• /
• 제8권1호
• /
• pp.3-33
• /
• 1998

Since the Start of WTO in 1995, world trade volume was substantially increased as much as over $250 billion by lifting the trade barriors This effect brought new problem of increasing disputes. Significantly an ever increasing atention is paid to the Question of means and procedures of settling such disputes by arbtration. The problem of arbitration has indeed become most popular with all those who take interest in legal aspects of international cooperation in various spheres. In practice arbitration seems to renovate its function to take over new disputes arising from electronic transaction such as internet trade. Looking at the actual use of arbitration, its merits than litigation should cover new aspect concerning new kind of claims caused by new type of transaction. The efficient procedure for dispute will help every country save loss of profit by the delay of settlment. This thesis aims to facilitate the appearence of more efficient arbitration procedure for dispute settlment system.