• Journal of Arbitration Studies
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• v.23 no.4
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• pp.139-167
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• 2013

Mediation, which is part of ADR, is a method used to settle disputes amicably by employing a third party who is in a neutral position. Utilization and attention on meditation are increasing in place of litigation and arbitration owing to its effectiveness in terms of time, cost, and effectiveness in achieving an amicable settlement. As to Korea, mediation at the civil level was employed by the KCAB in July 2012 but its utilization was in ABC stage compared to mediation at the governmental and judicial levels. Based on this situation, this study reviewed the guideline and system of the KCAB through a comparison of the management system between the KCAB and AAA where mediation was in good use. This study further suggests solutions as to the development of an international commercial mediation system First, the KCAB rule is needed to create a mediation language, mediation place, mediator internationalization, and so on. Second, a system backup is necessary to ensure the enforceability and effectiveness of mediation. Third, a unified mediation law in Korea is desirable for the harmonization of mediations at civil, governmental, and judicial levels. The unified mediation law, if it is made, may lead to an international base where this requirement exists. Fourth, advertising the merits of mediation to the public is necessary. Fifth, securing specialized mediators and relevant training are essential. If the above requirements are implemented, Korea would advance in international commercial disputes.

• 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.23 no.1
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• pp.85-105
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• 2013

The entertainment industry has developed along with current Korean wave fever, and so entertainment-related disputes are increasing rapidly. Litigation is a poor fit for entertainment disputes because of characteristics such as temporal sensitivity. Thus, in the US, the entertainment industry resolves these disputes through ADR mechanisms like arbitration, but cases of settling such disputes through arbitrations are very rare in Korea. This study examined the characteristics and types of entertainment disputes and considered the compatibility of arbitration as a method for settling disputes, and then suggested tasks for revitalizing arbitration systems as entertainment dispute resolution procedures. Arbitrations have many merits, such as the rapid pace of procedures, confidentiality, satisfying the long-term desires of business relationships, the low cost of settling disputes, judgments rendered by experts, etc.; thus, it is a very suitable mechanism to settle entertainment-related disputes. The study proposes necessary steps for revitalizing arbitration systems for entertainment disputes. First, awareness of entertainment industry workers about the arbitration system should be raised. Second, special educational programs for members the of Korean Commercial Arbitration Board related to entertainment should be set up and operated together with encouraging positive attitudes toward actions like establishing a dedicated arbitration unit on entertainment disputes. Third, neutral, professional arbitrators should be secured and aggressive disclosures made. Fourth, a professional ADR organization such as an "Entertainment Arbitration Committee" should be established.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.3-32
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• 2007

This age is called the age of global trade, and the World Trade Organization is a forerunner in promoting the global free trade through multilateral negotiations as the global level. On the other hand, regional economic cooperation such as North American Free Trade Agreement(NAFTA) is appearing, saying that promotion by WTO takes too much time. As is known to everybody, Europe is on the way of integrating member states through EU not to mention economic cooperation. Even in Asia such tendency is shown through ASEAN, Korea, China and Japan in Northeast Asia share geographical proximity, many common historical experiences, and similar cultural norms and values although they have disparities in stages of development, trade and economic policies, and financial and legal frameworks. Under the situation, efforts have been made between three countries of Korea, China and Japan for the conclusion of investment agreements including FTA. If the conclusion of the FTA between the three countries would be realized, it would promote regional trade and investment, contributing to economic growth in the Northeast Asian region. The writer in this paper reviewed the settlement of private commercial dispute including investment dispute arising from the FTA and investment agreements. The investment dispute is quite different from an ordinary commercial dispute arising from commercial transactions in view of disputing parties, applicable laws and rules, etc. Therefore it is a problem of vital importance that the parties interested in investment under the FTA as well as the relevant investment agreement should understand and cope with the settlement mechanism of investment disputes arising therefrom. The ICSID Convention provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. All contracting states of the ICSID Convention are required by the Convention to recognize and enforce the ICSID arbitral awards. The New York Convention(formally called "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards") is also applicable for the enforcement of arbitral awards to be rendered under the FTA. As to applicable rules, the UNCITRAL Arbitration Rules may be required for the settlement of investment disputes under the FTA. This Rules has adopted by the internationally recognized arbitral organizations although it was developed primarily for use in ad hoc arbitration. The promotion of arbitral cooperation may be realized through agreements between arbitral institutions. Especially under the NAPTA system, a central common system was established to resolve jointly private commercial disputes arising from such free trades by the initiative of arbitral organizations among the member countries. It is called Commercial Arbitration and Mediation Center for the Americas(CAMCA), which may be a good example for the settlement promotion of the private commercial disputes between Korea and other relevant countries.

• Journal of Arbitration Studies
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• v.24 no.1
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• pp.85-109
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• 2014

Mediation and Arbitration are two distinct ADR processes. Their dissimilarity lies in the principle that in mediation the parties themselves decide what the resolution to the problem is, whereas in arbitration the arbitrator makes that determination. Med-Arb, hybrid of the two methods, is a fairly new ADR process dating back to the 1970s. Med-Arb capitalizes on the advantages of both mediation and arbitration, while eliminating many of their disadvantages. Mediation has the advantage of allowing for resolutions rather than decisions. Arbitration has the advantage of guaranteeing that the matter will be resolved when the procedure is over. In Med-Arb, the participants agree to be parties to mediation, and if the mediation comes to an impasse, a final settlement will be reached through arbitration. This study first explicates the origin and the development of Med-Arb in the United States. This study shows that the emergence of Med-Arb is benefited from the fact that arbitration has lost its own advantages ie, speed, cost-saving, and maintenance of an ongoing relationship between the disputants. Second, this study analyzes four cases in which Med-Arb is applied to various kinds of disputes as a tool of dispute resolution: labor disputes, entertainment disputes, will disputes, and international commercial disputes, consecutively. All those case studies show the generality of Med-Arb as a dispute resolution channel. Third, this study compares the advantages and disadvantages of Med-Arb. Finally, this study discusses the implications of Med-Arb. In particular it provides the universality of this hybrid form of dispute resolution in the East and West. For example, we show that China has its own distinctive Med-Arb system, where it has developed from ancient Confucian philosophy. Japan also emphasizes the role of an arbitrator who settles the disputes in the course of arbitration. The domestic arbitration rules of the Korean Commercial Arbitration Board (KCAB) have a similar process in that arbitration contains an element of conciliation. With regard to the universal characteristics of Med-Arb, it is necessary to analyze the pros and cons of Med-Arb at a deeper level in the future. One caveat is that it is necessary to handle the issues of the neutrality of the mediator-arbitrator.

• International Journal of Computer Science & Network Security
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• v.24 no.3
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• pp.29-37
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• 2024

Resorting to electronic arbitration to resolve disputes in international trade contracts is the most important reflection of technological progress on the reality of international commercial arbitration. Electronic is a modern image of traditional arbitration, and this type of arbitration provides many advantages that are not provided by any legal system for resolving disputes, including speed, effectiveness and lower costs. What will this development produce? Through technical progress in the means of communication, it has become conceivable that international trade dealers agree to arbitration via electronic means of communication, followed by the completion of the arbitration process via the Internet, leading to the issuance of the electronic arbitration award in an electronic manner as well.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.67-85
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• 2010

On-line ADR is to use means of settling disputes online to settle disputes happened on-line or off-line. It gave important opportunity for engaging in a commercial transaction to small group or individual. If it uses judiciary proceeding, it will cost too much, complicate and take considerable time. So, because of these reasons, OECD even encourage on-line ADR as a mean for relieving consumer's damage actively on e-commerce. Korea is also trying to introduce on-line ADR partially or completely in Korea Consumer Agency, The National IT Industry Promotion Agency, The Korean Commercial Arbitration Board. However, Korea's on-line ADR is more insufficient than advanced country's. Nevertheless, because on-line needs to introduce, this study suggests the problem and plan centering the type and the present condition of on-line ADR.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.30
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• pp.91-120
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• 2006

An Arbitration agreement is one kind of contracts between two or more contracting parties; any possible disputes that arise concerning a contract will be settled by arbitration. Contracting parties who have made a valid arbitration agreement will submit a dispute for settlement to private persons(arbitrators) instead of to a court. Arbitration may depend upon the agreement of the private parties, but it is also a system which has been built on the law and which relies upon that law in order to make it effective both nationally and internationally. That is to say, arbitration is wholly dependent on the underlying support of the court. The complementarity of the courts and of the arbitrators is a well-established fact; they seek for the common purpose, the efficacy of international commercial arbitration. Most states' laws contain the provisions which have been set for the supportive role of the courts relating to arbitration; (1) the enforcement of the arbitration agreement(rulings on validity of the arbitration agreement), and the establishment of the tribunal at the beginning of the arbitration, (2) challenge of arbitrators, interim measures, and intervention during evidence in the middle of the arbitral proceedings, (3) filing of the award, challenge of the arbitral award, and recognition and enforcement of the arbitral award at the end of the arbitration. Most international instruments and national laws concerning arbitration believe that authoritative courts should play their power not to control and supervise arbitration but to support and develop the merits of arbitration at most. 1985 UNCITRAL Model Law also expressly limit the scope of court's intervention to assist arbitration, not to control it.

• Journal of Arbitration Studies
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• v.33 no.4
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• pp.3-35
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• 2023

The Korean government has enacted the Arbitration Industry Promotion Act, which aims to foster the arbitration system as an industry, strengthen national competitiveness, and systematically provide government support so that the arbitration industry can become a future growth engine, and has been in effect since June 28, 2017. In accordance with Article 3 of the Arbitration Industry Promotion Act, the Minister of Justice must establish and implement the Basic Plan for the Promotion of the arbitration industry every five years to promote the arbitration industry. Accordingly, the Ministry of Justice established the "Basic Plan for the Promotion of the Arbitration Industry" (2019-2023) at the end of 2018, which has been in effect since January 1, 2019. This study first reviews and evaluates the domestic arbitration sector performance of the first basic plan, then reviews and evaluates the international arbitration sector performance of the first basic plan, and finally suggests what tasks to focus on when establishing the second basic plan for Promotion of Arbitration Industry.

• Journal of Arbitration Studies
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• v.34 no.1
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• pp.51-74
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• 2024

Korea continues to invest in the IT industry and is currently regarded as one of the five major powerhouses in the field of intellectual property. However, it is evaluated that this status is only limited, and the level of intellectual property protection and dispute resolution does not reach a level commensurate with the status of one of the five major intellectual property powers. To address these problems, the Korean government has enacted the Arbitration Industry Promotion Act in 2017, which aims to strengthen national competitiveness by fostering the arbitration system as an industry and provide systematic support so that the arbitration industry can become a future growth engine. In addition, in accordance with Article 3 of the 「Arbitration Industry Promotion Act」, the Minister of Justice must establish "the Basic Plan for Arbitration Industry Promotion" every 5 years. Great efforts must be put into establishing an Online Dispute Resolution (ODR) system at the KCAB for five years from 2024 to 2028, the Second Basic Plan for the Promotion of the Arbitration Industry period. Under these circumstances, this study presents implications and improvement measures for the development of the intellectual property-related arbitration system to protect Korea's intellectual property rights and contribute to more active intellectual property creation. In particular, this study proposes a plan to build an one-stop digital platform for KCAB to implement an efficient ODR system.