• International Journal of Computer Science & Network Security
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• v.22 no.7
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• pp.85-90
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• 2022

In modern conditions of the development of public relations, there is a continuous development of technologies. This not only reflects the convenience of service users, and new technology but also contributes to the emergence of new disputes to protect the rights of stakeholders. Therefore, it is urgent to study the distinctions between the jurisdiction of commercial, civil and administrative courts in resolving IT disputes. The work aims to study the peculiarities of delimitation of the jurisdiction of commercial, civil, and administrative courts through the prism of IT measurement. The research methodology consists of such methods as a historical, comparative-legal, formal-logical, empirical, method of analogy, method of synthesis, method of analysis, and systematic method. Examining the specifics of delimiting the jurisdiction of commercial, civil, and administrative courts through the IT dimension, it was concluded that there is a problem in determining the jurisdiction of the court. In addition, the judicial practice on this issue is quite variable, which negatively affects the predictability of technology in resolving potential disputes. In this regard, the criterion models for distinguishing between commercial, administrative, and civil proceedings according to the legal classification of the parties, as well as the nature of the claim are identified. This separation will contribute to a more accurate application of legal norms and methods of application of administrative norms and reduce the number of cases of improper proceedings.

• The Korean Society of Law and Medicine
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• v.11 no.1
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• pp.397-445
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• 2010

This thesis introduces the trends of korean courts' ruling on damages in medical malpractice cases for past 10 years. First of all, Korean courts' ruling have had a tendency to pay only non-economic damages for not taking the informed consent. If a doctor cannot get the informed consent from a patient, he compensate only non-economic damages for the infringement of self-determination rights of patient. It's enough for the plaintiff to prove the infringement of self-determination rights, if the plaintiff just want to get non-economic damages. The Korean Supreme court have ruled that if plaintiffs want to get economic damages for the infringement of self-determination rights or informed consent, plaintiffs must prove that the infringement of self-determination rights is the proximate cause of the economic damages of patient. There is another tendency for the Korean Supreme court to limit the damages in medical malpractice cases on the ground of patient's diseases' dangerousness or patient's idiosyncrasy. In the past courts often limit the damages only to 70~80% of total damages, but now a days courts mostly limit the damages to 20~30%. This thesis also introduce the Korean courts' trends about Valuing damages in personal injury actions awarded for gratuitously rendered nursing and medical care.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.519-546
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• 2004

On June 27, 2002 Canadian Internet Registration Authority (CIRA) launched dot-ca domain name dispute resolution service through BCICAC and Resolution Canada, Inc. The Domain name Dispute Resolution Policy (CDRP) of CIRA is basically modelled after Uniform Domain Name Dispute Resolution Policy(UDRP), while the substance of CDRP is slightly modified to meet the need of Canadian domain name regime and its legal system. Firstly, this article examined CIRA's domain name dispute resolution policy in general. It is obvious that the domain name dispute resolution proceeding is non-binding arbitration to which arbitration law does not apply. However it still belongs to the arbitration and far from the usual mediation process. Domain name arbitrators render decision rather than assist disputing parties themselves reach to agreement. In this respect the domain name arbitration is similar to arbitration or litigation rather than mediation. Secondly it explored how the panels applied the substantive standards in domain name arbitration. There is some criticism that panelists interprets the test of "confusingly similar" in conflicting manner. As a result critics assert that courts' judicial review is necessary to reduce the conflicting interpretation on the test of substantive standards stipulated in paragraph 3 of CDRP. Finally, it analysed the court's position on domain name arbitral award. Canadian courts do not seem to establish a explicit standard for judicial review over it yet. However, in Black v. Molson case Ontario Superior Court applied the UDRP rules in examining the WIPO panel's decision, while US courts often apply domestic patent law and ACPA(Anticyber -squatting Consumer's Protection Act) to review domain name arbitration decision rather than UDRP rules. In conclusion this article suggests that courts should restrict their judicial review on domain name administrative panel's decision at best. This will lead to facilitating the use of ADR in domain name dispute resolution and reducing the burden of courts' dockets.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.15
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• pp.169-209
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• 2001

As a domain name can be registered simply by filing an application for registration, disputes over the domain name between the holder of domain name and the holder of trademark increased. Since the holder of trademark who was late for registering domain name is willing to pay for the return of domain name, cybersquatters increased. Cybersqatters are not genuine users of the Internet. This article is to compare the construction of law by American Courts and by Korean Courts and to assert the creation of the law similar to the law of US as to anti-cybersqatting. American Courts applied the Trademark Act and the Anti-Dilution Act to resolve the disputes over domain name. To apply the Trademark Act, the Court required the plaintiffs to prove that the goods or the services expressed by the domain name should be identical or similar to the goods or the services represented by the trademark. However, there were many cases where the holder of domain name used it for the goods or the services irrelevant to those of the holder of trademark. Also, the Anti-Dilution Act could not successfully protect the holder of trademark from cybersquatters because it required that the trademark should be famous or distinctive. As a result, the US promulgated a new law which is designed to prohibit cybersquatters from being free of sanction by the existing laws. Korea Courts applied the Trademark Act and the Unfair Competition Prohibition Act to the cases disputing domain name. Likewise in the US, Korean Courts must cope with the issue of identity of the goods or the services, and the famousness or distinctiveness of trademark. The Courts hesitate to give a winning judgement to the holder of trademark simply because the domain name of alleged violator confused the trademark. Some scholars advocate the broadening of construction of the Unfair Competition Prohibition Act to illegalize cybersquatting but it is beyond the meaning of the law. Accordingly, it is a time to make a law similar to the Anti-Cybersquatting Act of the US. The law must be a fair and reasonable compromise to resolve the collision between system of registration of domain name and the system of registration of trademark. Some commentators advocate that the registration of domain name should be examined just as the one of trademark and to facilitate it, the Patent and Trademark Office should have jurisdiction of registration of domain name. But it abandons the distinction of domain name and trademark and results in obstructing e-commerce. By adopting the Anti-Cybersqatting Act, we can prohibit it. In other cases, we get a reasonable adjustment between the holder of domain name and the holder of trademark through the Trademark Act and the Unfair Competition Prohibition Act.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.47-69
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• 2012

This paper investigates the U.S. courts'attitudes toward the legal doctrine of adhesion contracts, which have been employed as contract defenses by individual consumers who have entered into consumer arbitration agreements with businesses. Some requirements have been added to the sole adhesiveness of the arbitration clause that can invalidate the arbitration clause, including unconscionability and unreasonable harshness. It seems that the U.S. courts have moved toward a more tightened stance in evaluating the validity of consumer arbitration clauses, favoring consumer arbitration.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.59-90
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• 2015

Since 1855, the federal courts of the United States have been empowered to assist in the gathering of evidence for use before foreign tribunals. Today, the source of that authority is 28 U.S.C. ${\S}1782$ which permits the courts to order a person "to give [ ] testimony... or to produce a document ... for use in a proceeding in a foreign or international tribunal${\cdots}$ ." It was generally assumed, until the United States Supreme Court's decision of Intel Corp. v. Advanced Micro Devices, Inc. in 2004, that arbitration tribunals were not "foreign tribunals" for purposes of 28 U.S.C. ${\S}1782$. While the issue in Intel did not involve an arbitration tribunal, a statement by the Supreme Court in dicta has called into question the exact parameters of the words "foreign tribunal," resulting in a split of opinion among the federal courts of the United States. This article explores the legislative history of 28 U.S.C. ${\S}1782$, examines the United States Supreme Court decision in Intel, and discusses the split among the courts of the United States regarding the interpretation of "foreign tribunal." The article further surveys emerging issues: is an arbitration tribunal in a case involving foreign parties and seated in the United States a "foreign tribunal"; does agreeing to the use of the IBA Rules on the Taking of Evidence in International Arbitration circumscribe the use of 28 U.S.C. ${\S}1782$; can a party be ordered to produce documents located outside the United States; and is there a role for judicial estoppel in determining whether an application pursuant to 28 U.S.C. ${\S}1782$ should be granted?

• Journal of Arbitration Studies
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• v.31 no.1
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• pp.83-105
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• 2021

If aggrieving consumers or employees cannot prove both substantive and procedural unconscionability, many U.S. state courts will enforce arbitration agreements. Additionally, U.S. courts weigh a variety of factors to determine whether an arbitration agreement is substantively unconscionable. For example, U.S. courts have considered one or a combination of the following factors: (1) the fairness of contractual terms; (2) the severity of contractual terms' deviation from prevailing standards, customs, or practices within a particular industry; (3) the reasonableness of goods-and-services contract prices; (4) the commercial reasonableness of the contract terms; (5) the purpose and effect of the terms and (6) "the allocation of risks between the parties." Further, procedural unconscionability characterized by surprise or lack of knowledge focuses on terms that are deceptively hidden in a mass of contract language, the object of another concealment, or imposed in the circumstances involving haste or high-pressure tactics so that they are not likely to be read or understood. This unconscionability doctrine can be applied to a situation where an alcoholic dementia-afflicted older adult is admitted to a nursing home. At that time, because she had alcoholic dementia, which precluded her reading, comprehending, writing, negotiating, or signing of any legal document, her son, who did not understand the adhesion contract, signed the standardized residential contract and the arbitration agreement.

• Journal of Arbitration Studies
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• v.32 no.3
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• pp.29-46
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• 2022

Until recently, there has been a circuit split as to whether parties to foreign private arbitral proceedings could seek assistance from the U.S. courts for discovery pursuant to 28 U.S.C. §1782. The circuit courts have differed on the issue of whether a private arbitral proceeding may be considered a "proceeding in a foreign or international tribunal" in terms of the statute, which would ultimately allow or disallow judicial assistance in taking of evidence by the U.S. district courts for use in the requested proceedings. While the U.S. Supreme Court has addressed the applicability of §1782 in its Intel decision in 2004, it had not established a test as to what constitutes a foreign or international tribunal for the purposes of §1782, thereby leaving it open for lower courts to continue to interpret §1782 in their own ways, as requests for judicial assistance in taking of evidence are filed. In the recent decision of ZF Auto. US, Inc., v. Luxshare, Ltd., the Supreme Court has finally clarified that in order for an arbitral panel to be a "foreign or international tribunal" under §1782, such panels must exercise governmental authority conferred by one nation or multiple nations. Therefore, private commercial arbitral panels are not "foreign or international tribunal(s)" for the purposes of §1782 because they do not constitute governmental or intergovernmental adjudicative bodies. Such holding is necessary and legitimate for interested parties in international arbitration, as well as, potential parties of arbitration who are contemplating alternative dispute resolution for their dispute(s).

• Journal of Arbitration Studies
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• v.20 no.2
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• pp.49-65
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• 2010

The expanded role of courts in arbitral procedures is said to have certain detrimental effects on the cost-effective approach to arbitration. This is the case when the court is appointing an arbitrator, pursuant to the specific domestic legal regime. The danger of decisions, especially those with expanded role of courts can create delays and hurdles. Even with contradictory viewpoints, the role of the court should complement the arbitral tribunal and not impede the functioning of arbitration independent of the judicial system. In this paper, two recent cases in Korean Supreme Court are reviewed, trying to find the proper implications on further arbitration practices especially in the stage of arbitrator appointment. Even though the proper appointment of arbitrators is essential to the existence of valid arbitration proceedings, appointment of arbitrators by the courts should constitute an administrative power, and not a judicial power. The cases reviewed make clear that the court must play a facilitative role in international commercial arbitration by assisting the parties in appointing the arbitral tribunal, the court intervention must be kept to a minimum.

• Journal of Arbitration Studies
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• v.15 no.3
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• pp.85-112
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• 2005

The purposes of this paper are to investigate how deeply the courts in Korea and the U.S. are involved in the enforcement process of the arbitral award. The extent of judicial review of arbitral award and the procedures to execute the arbitral award were explored and compared in each of the countries. In Korea the winning party should file a suit for enforcement judgement to execute the arbitral award, while the winning party in the U.S. should file an application for motion. Such difference in the execution process between Korea and the U.S. may be led to a higher burden on the Korean winning party in the execution process due to the complexity and instability during the new litigation for enforcement judgement. In addition, the Korean Arbitration Act does not grant any authority for the court to intervene with the substantive matters in the arbitral award, while in the U.S. the Common Law allows the court to vacate the arbitral ward when the arbitral award is entered with the manifest disregard of the law by the arbitral tribunal. It would be more practical for the court to supplementarily intervene with the arbitral award which obviously hurts the legal interest of the arbitral parties.