• Journal of Arbitration Studies
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• v.19 no.3
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• pp.141-160
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• 2009

This article examines some factors that should be taken into consideration as the number of arbitrators to constitute arbitral tribunal, how to select them and the characteristics of arbitrators by their expert field, and the various problems that may arise in selection of arbitrators. When dispute parties select one arbitrator or a chairman of arbitral tribunal, they should consider the characteristic of case. When legal problem is more important, they should select a lawyer, whereas when trade practice is more important, they should select a businessman. Especially, when they decide to select a businessman as one arbitrator or a chairman of arbitral tribunal, they allow him not to write the reason of award if possible because he is lack of know-how to write it. Also, dispute parties should acquire the information of the main career and character of arbitrator, his experience of arbitration and so on before they select him.

• Journal of Arbitration Studies
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• v.29 no.4
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• pp.165-186
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• 2019

The parties are jointly and severally liable to pay to the arbitrators such reasonable fees and expenses (if any) as are appropriate in the circumstances. Any party may apply to the court (upon notice to the other parties and to the arbitrators) which may order that the amount of the arbitrators' fees and expenses shall be considered and adjusted by such means and upon such terms as it may direct. Arbitrators' fees and expenses are calculated on the basis of informal time fees determined by the arbitrators themselves, and the fees and expenses also vary greatly depending on the nature of the case. Obviously, when appointing a member of the LMAA as an arbitrator, it is rare to negotiate the fees and expenses with the arbitrator and to make specific arrangements for the fees and expenses. And it is common for between an arbitrator and a party to have an arbitrator agreement only in accordance with LMAA Terms. And it is common for between an arbitrator and a party to have an arbitrator agreement only in accordance with LMAA Terms. The purpose of this study analyzes the structure of arbitrators' fees and expenses under the UK Arbitration Act and LMAA Terms 2017. The contents can be divided into the relationship between the arbitrator and the parties (the claim of fees, the type of fees) and the relationship between the parties(the burden rate of arbitrators' fees). In this regard, this study suggests the implications after comparatively analyzing the UK Arbitration Act and the LMAA Terms 2017.

• Journal of Arbitration Studies
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• v.18 no.1
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• pp.3-30
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• 2008

This paper is to research the current status of ADR in Korea, the qualifications of mediator (or conciliator) and arbitrator, the ADR education program of major foreign arbitration-related institutions and the efficient management device of ADR education program for the activation of the ADR system. In 2007, arbitration applications received at the Korean Commercial Arbitration Board numbered 320 and the amount involved those cases was US$ 216 millions. Mediation applications received at the KCAB numbered 552 and the amount involved those cases US$ 29millions. As of December 2007, the total numbers of arbitrators on the KCAB Panel of Arbitrators was 978. There are no provisions for the qualification of arbitrator in the UNCITRAL Model Law on International Commercial Arbitration and Arbitration Act of Korea. The KCAB has the consolidation regulation of the Panel of Arbitrator of which purpose is to regulate the criteria and procedure regarding the drawing up and maintenance of the panel of arbitrators. The UK Chartered Institute of Arbitrators has the criteria and qualifications for membership of which three grades are associate, member and fellow. The American Arbitration Association has the qualification criteria for admittance to the AAA National Roster of Arbitrators and Mediators. The Japan Association of Arbitrators has the official authorization regulation for membership of which three grades are special associate, ordinary associate and fellow. The UK Chartered Institute of Arbitrators has the ADR education programs which are composed of the mediation courses and arbitration courses. The American arbitrators Association has the ADR education programs which are composed of in-person training and online training. The Japan Association of Arbitrators has the ADR education programs which are composed of the cultivation courses of conciliator and the practical training courses of arbitrator. The efficient management devices of ADR education program are as follows: the execution of official authorization system of arbitrator, the establishment of specialized division for training and official authorization, the establishment of ADR regular training courses, the publication of ADR training texts and obtaining of instructors, and the consolidation of regulations related to the official authorization of arbitrator and ADR training. In conclusion, for the activation of ADR system, the KCAB and Korean Association of Arbitrators should make further effort to provide the ADR regular education and training programs for potential and practicing conciliators and arbitrators.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.21-39
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• 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.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.33-55
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• 2007

Parties to national or international disputes use arbitration because they think it is faster than litigation or affords privacy. But it is very important for the parties that the decision of arbitrators is made impartially and independently. For the parties to accept the outcome of an arbitration, it is essential that the final outcome be the result of an impartial process, especially because arbitration is a form of adjudication, albeit a private one. The success of arbitration resides in the conduct of arbitrators. The more independent and impartial arbitrators are, the more trustworthy arbitration will be. Just as court procedures allow for the recusal of judges under certain circumstances, the arbitral process provides means to remove arbitrators from a tribunal if arbitrator can no longer be considered impartial or independent. This is blown as the disqualification or challenge of arbitrators. An arbitrator can also be challenged when he or she does not fulfill the contactually agreed and stipulated qualifications required by the arbitral agreement. An arbitrator's inability to act impartially could give rise to a challenge to the arbitrator, and even to the award. However, deciding whether an interest or relationship could give rise to an apprehension of bias is a difficult issue for every arbitrator. The standard of arbitrator's impartiality and independence is not commensurable to that of judge, because the parties are permitted considerable autonomy in selecting arbitrators. Particularly it may be expected for the party-appointed arbitrator to act as the advocate of the party in the deliberations of the tribunal. Doubts that could give rise to a challenge to the arbitrator should be justifiable. That is the case if a reasonable, informed third party would conclude that the arbitrator's decision making might be influenced by factors other than evidence presented by the parties. Consequently, for example, the mere fact that an arbitrator was to work in the same firm as one of the parties' counsel, this could not automatically be considered as grounds for challenge for lack of impartiality.

• Journal of Arbitration Studies
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• v.26 no.1
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• pp.29-51
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• 2016

This paper reviews the Supreme Court decision of the United Kingdom in Jivraj v. Hashwani (2011) concerning the employment issue of arbitrators, falling within the exception of genuine occupational requirement under the Employment Equality (Religion or Belief) Regulations 2003, and nationality of arbitrators. In 2011, the Supreme Court of the United Kingdom delivered its judgment in Jivraj v. Hashwani, unanimously overturning decision of the English Court of Appeal. The facts of this case and the decision of the Court of Appeal have been widely discussed. The decision of the Supreme Court has been met with approval within the international arbitration community in London, having restored the legal position to that prior to the Court of Appeal's ruling. Thus, the Supreme Court unanimously overturned the Court of Appeal's finding that arbitrators are the employees of the arbitrating parties. Arbitrators were held to be genuinely self-employed, and therefore outside the scope of the Regulations or Equality Act(2010). As such, the anti-discrimination provisions are not applicable to the selection, engagement or appointment of arbitrators. Most importantly, the Supreme Court's finding that arbitrators are not employees removes the possibility of challenges to arbitration agreements on the grounds that they are in breach of the Equality Act. As a practical matter, parties no longer need to consider carving out nationality provisions when drafting arbitration agreements.

• Journal of Arbitration Studies
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• v.17 no.2
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• pp.23-41
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• 2007

The role of ICC Court of Arbitration in ICC Arbitration is critical in maintaining the good reputation and worldwide recognition. While most arbitration institutions are the products of regional on national private associations, which play a relatively limited role in appointing or confirming the arbitrators, the Court of Arbitration is not only international in the appointment of arbitrators through the each National Committee, but also intervene in the confirmation of the prospective arbitrators proposed by the parties. Thus the ICC Arbitration is undoubtedly the most highly-supervised form of institutional arbitration available. The purpose of this paper is to examine the appointment and confirmation system of ICC Arbitration, to find the distinctive features of the ICC Rules of Arbitration and to check how to apply the features in the Rules of International Arbitration for the Korean Commercial Arbitration Board(KCAB Rules). Although the KCAB Rules have inherent limitations in the appointment of the arbitrators comparing with the ICC Court. They do not have any confirmation system of the arbitrator proposed by the parties. Although no arbitral institutions is in a position to guarantee completely the ultimate quality and efficacy of the process, the ICC, more than any other institution has historically endeavored to do so through a combination of the efforts of its International Court of Arbitration and National Committees. Composed of legal professionals of more than 75 nationalities, the Court, with the support of its permanent Secretariat in Paris, brings to bear on the decisions that it is responsibility to make the collective and disparate knowledge and experience of a multinational body. Therefore, if the KCAB wants to attract many international disputes, it should try to benchmark the ICC Rules of Arbitration, expecially the Article 9, to secure the prominent arbitrators throughout the world, even though a lot of limitations are exist. The positive role of the ICC Court of Arbitration gives us very important signal.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.78
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• pp.31-51
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• 2018

As International arbitration has increased in popularity, there has been an expansion in the pool of arbitrators, and a commensurate diversification of not only the legal backgrounds but cultural backgrounds among themand among parties. As a result, there has been increased attention on the standards used to evaluate arbitrators' conduct and ethics, especially among them, 'Impartiality and Independence of Arbitrator' which is a precondition for an acceptable awards. There is no international treaty or code governing these issues. But the International Bar Association(IBA) seems to be leading the way such as establishing practical guidelines regarding to impartiality and independence of arbitrator. This article will review some theories, cases about impartiality and independence of arbitrator, and practical standards through the IBA guidelines. It is intended to provide specific guidance and criteria to the arbitrators, parties and counsels. And also it is expected to prevent unnecessary delays in arbitration proceedings in advance and filing for the annulment of arbitral awards because of lack of impartiality and independence of arbitrator as well.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.33
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• pp.145-164
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• 2007

The Arbitration costs provided in Article 31 consist of arbitrators' fees, arbitrators' expenses, ICC administrative expenses, expenses of experts appointed by the Arbitral Tribunal, and parties' costs. Among them the first three items are independently determined by the Court in accordance with the Scale, while another two items are determined by the arbitrator and each party. The three items determined by the Court are communicated by Secretariat to the Arbitral Tribunal for inclusion in the award following the approval of the draft submitted to the Court. Also the final award may decide which of the parties shall bear them or in what proportion they shall be borne by the parties. According to Article 31(3), the arbitrators have complete jurisdiction or discretion to allocate the costs. Three common approaches are as follows; First, all of the costs are borne by the losing party. Second, all of the costs are allocated in proportion to the outcome of the case. Third, all of the costs determined by the Courts are shared equally by the parties and both parties bear their own costs. But, both parties may include intentions in accordance with the principle of party autonomy. For example, if the parties wish to ensure that the arbitration costs be shared equally and that the arbitrator make no allocation of costs or fees, the following sentence could be added to the arbitration clause in their contract. "All costs and expenses of the arbitrators [and the arbitral institution] shall be borne by the parties equally; each party shall bear the costs and expenses, including attorneys' fees, of its own counsel, experts, witness and preparation and presentation of its case" And also, if the parties wish expressly to link any allocation of costs, and fees to the result of the award the following could be added to the arbitration clauses. "The arbitrators may award to the prevailing party, if any, as determined by the arbitrators, its costs and expenses, including attorneys' fees"

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.33
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• pp.121-144
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• 2007

The International Chamber of Commerce has been the world's leading organization in the field of international commercial dispute resolution. Established in 1923 as the arbitration body of ICC, the International Court of Arbitration has pioneered international commercial arbitration as it is known today. The ICC International Court of Arbitration is the world's foremost institution in the resolution of international business disputes. While most arbitration institutions are regional or national in scope, the ICC Court is truly international. The purpose of this paper is to examine their advantages and to introduce main contents provided in ICC Rules of Arbitration as follows; First, before the actual merits of the case can be addressed, the Arbitral Tribunal must first draw up the Terms of Reference. The Terms of Reference should include the particulars listed in the ICC Rules. Apart from the full names and description of the parties and arbitrators, the place of arbitration and a summary of the parties' respective claims, they contain particulars concerning the applicable procedural rules and any other provisions required to make the Award enforceable at law Second, the Scrutiny is a fundamental feature of ICC arbitration and is one that distinguishes it from the other major international arbitration rules. The scrutiny system has two aspects ; the first is to identify or modify the defects of form, while the second is to draw the arbitrators' attention to points of substance. Third, as soon as practicable, the Court fixes an advance on costs intended to cover the estimated fees and expenses of the arbitrators, as well as the administrative expenses of ICC. Specially, the advance on costs fixed by the Court shall be payable in equal shares by the Claimant and Respondent. Finally, the parties are also free to select the arbitrator or arbitrators of their choice. The Court or the Secretary General confirms arbitrators nominated by the parties. Taking a step forward, to upgrade the quality of the award of KCAB, it is desirable to consider how to incorporate the main contents of the ICC Arbitration into Korea Commercial Arbitration Rules.