• 무역상무연구
• /
• 제41권
• /
• pp.135-165
• /
• 2009

It is not difficult to understand from laws and practices in arbitration area that arbitrators appointed have as many rights as their duties to do their performing duties especially to participate in the proceeding and deliberations of the arbitral process. However, sometimes can be happened that an arbitrator who was appointed by a party, refuses to participate in the proceeding or resign during the arbitral process. Generally, in the case, it is provided that the arbitrator who fails to act can be replaced by a substitute arbitrator. When it is decided to change an arbitrator, the appointment of an substitute arbitrator is likely to cause time delay, high cost with inconvenience. And also it is to be considered for additional cost and delay from possible need for repeating the hearings that were held at former arbitral tribunal. Sometimes, a party want to delay intentionally the arbitration process by using right for challenging arbitrator or designing with an arbitrator who was appointed by the party. That is why the reason it has been discussed for allowing the truncated tribunal that the remaining arbitrators that is named as truncated tribunal are permitted to complete the proceeding and issue decisions or arbitral awards. Unfortunately there are uncertain views on the validity of arbitral proceeding or recognitions and enforcement of truncated tribunal decisions in international commercial arbitration. In this article it is focusing on discussing truncated tribunal's benefits or barriers and problems through comparing with famous arbitral rules of international arbitral institutes including rules of UNCITRAL, LCIA, KCAB and the revising draft arbitration rule of UNCITRAL.

• 한국중재학회지:중재연구
• /
• 제18권1호
• /
• pp.147-165
• /
• 2008

Appointment of arbitrators is very important in arbitration. As it has been a long laps since Korean peninsula was devided into two parts, South and North, it has come to be too much gaps between South and North in the law, social system, commercial practice and etc.. South Korea is familar to international commercial practice and capitalistic legal system generalized internationally in modern times. On the other hand as North Korea was closed society for a long time, they are not familar to international commercial practice and market economy. In this connection, commercial disputes arising from the transactions between South and North will occur frequently and it will be very difficult to select governing law or commercial practice referred to the disputes. Under the circumstances, when and if an arbitrator from South or North will be appointed as presiding arbitrator in the tribunal composed by three arbitrators, the part from which the presiding arbitrator come will be a majority, and it will be advantageous to the parties came from the part of which the presiding arbitrator come from. Such being the case, sole arbitrator or presiding arbitrator needs to be appointed among foreigner. Otherwise I recommend the tribunal composed by two arbitrators and umpire system. As to arbitrator's fee, as there is a big gap in its economic aspects between South and North, I supposed to need establishing the fund made by corporation with South and North in order to compensate arbitrators from South or abroad for their fee. Finally it is more important to prevent disputes arising from transactions between South and North. In order to prevent the disputes, education for North Korean about international commercial practice and skill to make a contract of international sale of goods and investment are needed.

• 한국중재학회지:중재연구
• /
• 제18권1호
• /
• pp.31-47
• /
• 2008

An arbitrator's duty shall be independence and impartiality such as a judge who has procedurally absolute position. Independence is the freedom from others, impartiality is the status of having no-partial condition. Although these show relevance between independence and impartiality, in actuality, it is not easy to prove them. Therefore, arbitrator has to prove his or her position by opening the public of reality and by having an obligation of notification. Each country which applies Arbitration rules or Arbitration act stays the same as Korean Commercial Arbitration Board does. Hence, each country has the moral principles in order to establish a standard of judgement for essential factors and requests preferentially the impartiality and the publicity. In reality, court of justice in England excludes arbitrator who has the close relation to a person concerned. Justice in France cancelled an authorization of arbitrator because of having the economic interest to the person concerned. And also, In United States, Federal Court reverses an arbitration judgment without giving any partiality to a person concerned because of not opening a public about the relationship between arbitrator and a person concerned. Therefore, decision basis of the independence and the impartiality is standardized by the economic interest of a person concerned, professional relation, society connection, relationship between arbitrator and arbitration representative in the same case while in process of arbitration, arbitrator's nationality If arbitrator does not keep the independence and the impartiality by a position of judge, he or she has to make responsible. this duty is divided by two things: civil case and crime case. and if arbitrator does break this responsibility, he or she will get the cancellation of judge and compensation of damage. However, Korea is placed in the real circumstance without judge precedent and moral principles including the independence and impartiality. In order to getting the good reputation of international arbitration institution, this country will have to enact principles of the independence and impartiality for arbitrator.

• 한국중재학회지:중재연구
• /
• 제30권3호
• /
• pp.115-136
• /
• 2020

This article provides an overview of the state of affairs of arbitrator disclosure obligations in Korea. It shows how Korean courts will analyze arbitrator conflicts and obligations through an evaluation of Supreme Court judgments and a case-specific analysis of the recent Oilhub case and provides a comparative perspective through a review of recent Japanese case law. Although limited to domestic arbitrations, it assesses the various grounds that courts consider when determining impermissible arbitrator conflicts based on relations with parties and when an award might be set aside as a result. With the 2016 adoption of the KCAB Code of Ethics for Arbitrators and its rigorous standards, great clarity has been brought to the landscape. The Code of Ethics marks a significant milestone in enhancing the robustness of arbitrator disclosures and guaranteeing the fairness, integrity, and transparency of Korean arbitration practice and law.

• 한국중재학회지:중재연구
• /
• 제27권1호
• /
• pp.107-129
• /
• 2017

Arbitration has grown a unique resolving method for international commercial disputes. However, it has considered a similar court process, such as interim relief, during arbitration proceedings. Further, it would be asked for urgent measures before the arbitrators are constituted in the proceedings. In this case, the disputing party has to apply in the court. This is an unattractive factor in international arbitration; therefore, some institutions are trying to reform such an inconvenient system by adopting the emergency arbitrator. The purpose of this study is to look into ways of utilizing the emergency arbitrator for effective dispute resolution in shipbuilding and shipping industries. The emergency arbitrator needs to solve problems such as making a decision on leaving cargos in the ship, matters involving a ship arrest, or issues regarding vessels under construction. In order to utilize the emergency arbitrator system, it needs to make a close partnership with related institutions, prepare Korean-style standard shipbuilding and shipping contracts, and provide training programs for new emergency arbitrators and staff of institutions. Next, the arbitration institution has to have a great working relationship with a court. Finally, it should try to implement a new system, such as on-line service, for the procedures of the emergency arbitrator.

• 한국중재학회지:중재연구
• /
• 제21권1호
• /
• pp.183-213
• /
• 2011

China and North America have been South Korea's biggest trading partner long time. As the volume of trade has been increasing, the disputes between Korean companies and Chinese Companies and between Korean companies and North American Companies have been increasing. If these disputes are settled by Arbitration, the parties appoint arbitrators who are empowered to proceed the arbitration procedure and have a power to render an arbitral award. Accordingly, it is very important for the parties to select who is an arbitrators in Arbitration. But if the parties doubt their arbitrator(s)'s fairness and independency, they can discharge them in accordance to law and arbitration institute's rules. In comparison with arbitrator system for way of selection and discharge among Korea, China and North America, some differences are found. First, if parties fail to appoint co-arbitrators or the presiding arbitrator by a mutual agreement, the court has the right to appoint them or him in Korea and North America whereas the Chairman of CIETAC choose him in China. Second, the authority to decide whether arbitrator is discharged owing to his fairness and independency, depends on arbitration institute and court in Korea and North American whereas it depends on the Chairman of CIETAC only.

• 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
• /
• 제20권1호
• /
• pp.21-39
• /
• 2010

The role of the arbitrator is so significant in the international arbitration that its success or failure may depend on the credibility of the arbitrator. It has long been understood that the ideal arbitrators are should be independent, unbiased, and have the requisite legal and/or technical expertise and experience for the case at hand. Arbitrators may be selected either by agreement of the parties, by appointment by arbitral institution or by a national court. This article outlines the main method of selecting the members of the tribunal plus some of the benefits and burdens of each method. One of the most common methods of appointing arbitrators is by agreement of the parties. This approach is very attractive because it allows parties to submit a their dispute to judges of their own choice, that they also agree on. Most arbitral institutions have a panel of arbitrators and their arbitral rules. So, if disputants agree on a specific arbitral institution, they can settle their disputes by arbitration easily and quickly. If disputants are unable to agree on arbitrator(s) or a specific arbitral institution, method of selecting arbitrator(s) by national court must be employed.

• 한국중재학회지:중재연구
• /
• 제22권3호
• /
• pp.215-238
• /
• 2012

This paper is to review the interim measures of arbitral tribunals in international commercial arbitration and to compare the emergency arbitrator systems of international arbitration institutions including the ICDR, SCC, SIAC, ACICA, and ICC. Most arbitration legislation and arbitration rules permit the arbitral tribunal to grant orders for interim measures of protection. Orders for interim measures by the arbitral tribunal are not self-enforcing. However, the revised articles with regard to interim measures of UNCITRAL Model Law of 2006 are regarded to contribute significantly to the effectiveness of interim measures in international commercial arbitration. A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal may make an application for such measures. Major international arbitration institutions have their own rules and provisions for the emergency arbitrator system, which was set forth first by the ICRD in 2006. The application requirements for emergency arbitrators are almost the same. However, there are significant differences in details such as appointments and applications for challenging emergency arbitrators, the process and form of the emergency arbitrator's decision, etc. Therefore, it will be necessary to consider these differences for more desirable emergency arbitrator proceedings in Korea.

• 한국중재학회지:중재연구
• /
• 제25권1호
• /
• pp.47-64
• /
• 2015

Pursuant to Article 109(1) of the Attorney-at-Law Act of Korea, a person, not an attorney-at-law, who receives or promises to receive money, articles, entertainment or other benefits or who gives or promises to give those things to a third party, in compensation for providing or mediating legal services, such as examination, representation, arbitration(emphasis added), settlement, solicitation, legal consultation, making of legal documents, etc. shall be punished by imprisonment with prison labor for not more than 7 years or by a fine not exceeding KRW 50 million or may be punished by both and there is no specific provision on qualification of arbitrator except on nationality of an arbitrator in the Arbitration Act of Korea. Then, the question arises, can any non-lawyer arbitrator who receives arbitrator's fees be punished in accordance with the Attorney-at-Law Act in Korea? To search for an answer for this matter, this paper examines the Arbitration Act or the Civil Procedure Code of 33 major countries in the world and explains a research on the participation ratio of non-lawyer arbitrators in all 360 arbitration cases registered in 2012 at the Korean Commercial Arbitration Board (KCAB).