• Title/Summary/Keyword: disputes settlement

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A study on the Interpretation of Governing Law to Application in Electronic Transaction Dispute (전자거래분쟁에서 준거법 적용상 해석론)

  • Kang Lee-Soo
    • Journal of Arbitration Studies
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    • v.14 no.1
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    • pp.3-28
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    • 2004
  • The implementation of electronic transaction raises some new legal and institutional problem so it is necessary for us to prepare alternatives. As the development of electronic transaction is difficult without smooth settlement of dispute the pursue of smooth settlement of dispute is very important menu. while the most common method relating to the settlement of dispute is litigation. them relating to the litigation, the subject of governing law so jurisdiction and the subject of governing laws should be resolved above all. Further more in addition, the old act prior act was regarded as insufficient in that it lacked rules on international governing law to adjudicate, or international adjudicatory governing law, where as the expectation of the public was that the private international law should function as the basic law of the legal relational encompassing rules on governing law given the increase of It international disputes. for the move the private international law has also attracted more attention from the korean. Therefore, governing law to application concerned about electronic transaction should be prepared and the environment to keep electronic transaction secure and stable be guaranteed. And we should make plans to protect companies and consumers and should make efforts to expand electronic transaction infrastructure .

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Empirical Study on Determinants of T/T Payment Risk in International Trade (무역거래에서 송금(T/T)방식의 결제 위험성에 영향을 미치는 요인분석)

  • Han, Woo-Jung;Cho, Hyuk-Soo
    • Korea Trade Review
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    • v.44 no.6
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    • pp.87-103
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    • 2019
  • L/C(Letter of Credit) is a common payment term designed to prevent credit risk in international trade. However, most companies prefer T/T (Telegraphic Transfer) payment due to its time and cost efficiency. According to related statistics, more than 70% of international trade contracts are based on T/T rather than other payment terms. The time required from the export negotiation to the completion of the export transaction and collection in international trade is very long. In this process, disputes related to settlement are continuous, so caution should be exercised. Therefore, whether or not the export payment is recovered in a timely manner is the core issue of trade transactions for exporters. The purpose of this study is to identify problems that cause delayed payments during settlement by the remittance (T/T) method, which can lead to settlement risk, in order to investigate those factors which can lead to delays in payments and increased risk as well as to determine ways to prevent such factors in advance. According to empirical findings, trading experience, transaction duration, and contract contents can be important determinants in terms of payment delays. Industry uniqueness and market uncertainty were found to be in opposition to the hypothesized relationships. The results of this study will be useful for trading companies to reduce their payment risk.

A Study on the Application of the New York Convention in the Recognition and Enforcement of ISDS Arbitral Awards (투자협정중재에 의한 중재판정의 승인·집행에 대한 뉴욕협약 적용에 관한 고찰)

  • Kang, Soo Mi
    • Journal of Arbitration Studies
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    • v.29 no.1
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    • pp.31-52
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    • 2019
  • As international transactions have grown more numerous, situations of disputes related to the transactions are getting more complicated and more diverse. Cost-effective remedies to settle the disputes through traditional methods such as adjudications of a court will be insufficient. There fore, nations are attempting to more efficiently solve investor-state disputes through arbitration under organizations such as the ICSID Convention, the ICSID Additionary Facility Rules, and the UNCITRAL Arbitration Rules by including the provisions on investor-state dispute settlement at the conclusion of an investment agreement. In case of an arbitration under the ICSID Convention, ICSID directly exercises the supervisorial function on arbitral proceedings, and there is no room for the intervention of national courts. In time of the arbitration where the ICSID Convention does not apply, however, the courts have to facilitate the arbitral proceedings. When the recognition and enforcement of an arbitral award under the ICSID Convention are guaranteed by the Convention, it should be considered that the New York Convention does not apply to them under the Convention Article 7 (1) fore-end. In exceptional cases in which an arbitral award under the ICSID Convention cannot be recognized or enforced by the Convention, the New York Convention applies to the recognition and enforcement because the award is not a domestic award of the country in which the recognition or enforcement is sought. It is up to an interpretation of the New York Convention whether the New York Convention applies to ISDS arbitral awards not based on the ICSID Convention or not. Although an act of the host country is about sovereign activities, a host country and the country an investor is in concurring to the investment agreement with the ISDS provisions is considered a surrender of sovereignty immunity, and it will not suffice to exclude the investment disputes from the scope of application of the New York Convention. If the party to the investment agreement has declared commercial reservation at its accession into the New York Convention, it should be viewed that the Convention applies to the recognition and enforcement of the ISDS awards to settle the disputes over an investitive act, inasmuch as the act will be considered as a commercial transaction. When the recognition and enforcement of an arbitral award on investment disputes about a nation's sovereign act have been sought in Korea and Korea has been designated the place of the investment agreement arbitration as a third country, it should be reviewed whether the disputes receive arbitrability under the Korean Arbitration Act or not.

Annulment System of ICSID Arbitral Award (ICSID 중재판정 취소제도)

  • Kim, Sang-Chan
    • Journal of Arbitration Studies
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    • v.25 no.2
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    • pp.71-96
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    • 2015
  • This paper deals with the annulment of the ICSID(International Centre for Settlement of Investment Disputes) arbitral award. The annulment of the ICSID is characterized by the fact that it can be made possible through the special committee of ICSID only. The annulment of the ICSID was constructed on the premise that it is not an appeal procedure. However in the initial period, it was strongly criticized as it allowed new trials or duplicated many of the functions of an appeal and it broke down the boundary between the two systems. Although the trend seemed to be corrected through its 2nd and 3rd generations, it was still criticized for functioning as a new trial. It is approaching its 4th generation. On the other hand, with the activation of investment agreement arbitration based on ICSID and FTA, a certain degree of consistency is required for the ICSID arbitralaward. Also, with the emphasis on the public features of the arbitration for the investment agreement, the necessity of an appeal system is presented. The ICSID Secretariat published the "Opinion on the Appeal Procedure" in 2004 but as the system was criticized as too early due to the cost allocation problem and others, its adoption of an appeal procedure has been delayed. This paper focuses on how the currently incomplete ICSID arbitration judgment annulment system shall be used. Although it is still hardto expect the quality and consistent arbitral award annulment in the ICSID, this paper suggests that the "annulment without the actual new trial" using the restricted authority of a special commission in a creative way shall be pursued rather than just the actual new trial with or without annulment, thus going back to the original concept of the ICSID arbitral award annulment.

A Study on the Annulment Mechanism of ICSID Arbitration (ICSID 중재의 취소제도에 관한 제 고찰)

  • Oh, Won-Suk;Kim, Yong-Il;Lee, Ki-Ok
    • Journal of Arbitration Studies
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    • v.24 no.4
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    • pp.3-28
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    • 2014
  • This article examines the Annulment Mechanism of arbitral awards rendered under the auspices of the International Centre for Settlement of Investment Disputes (ICSID). The primary feature in the ICSID and non-ICSID arbitration regarding the review of awards involves the unified nature of the ICSID system, as compared to the scattered and multi-layered system of review existing under arbitration rules, national legislation, and international convention. This unity can be perceived at different levels. The ICSID annulment mechanism entails only a set of rules; thus, only one set of application standards of review will be implemented, as opposed to sometimes conflicting layers of application rules, laws, and convention, as in the case of non-ICSID arbitration. However, some of the recent annulment decisions have raised serious questions about the breadth of annulment in practice, as opposed to its original design. Nonetheless, implementing a new system under the ICSID awards to be reviewed by an appellate court appears to create more problems than it solves. The potential impact of introducing that mechanism could result in a longer and more complex proceeding, with uncertain benefits.

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A Study on CIETAC Case about Acceptance with Different Terms - Focus on CISG - (변경을 가한 승낙에 관한 CIETAC 사례 연구 - CISG를 중심으로 -)

  • Kang, Ho-Kyung
    • Journal of Arbitration Studies
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    • v.24 no.4
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    • pp.127-145
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    • 2014
  • The wording of Article 18 shows that a statement made by or other conduct of the offeree indicating assent to an offer is an acceptance. Meanwhile, Article 19 states that this reply with different terms is a rejection of the offer and constitutes a counteroffer. For example, additional or different terms relating, among other things, to the price, payment, quality and quantity of the goods, place and time of delivery, extent of one party's liability to the other, or the settlement of disputes are considered to alter the terms of the offer materially. However, this reply with different terms which do not materially alter the terms of the offer constitutes an acceptance unless the offer or, without undue delay, objects orally to the discrepancy or dispatches a notice to that effect. As a result, the acceptance depends on whether different terms are material or not. CIETEC holds that the deletion of contract violation liability clause is not equal to an alteration to the extent of one party's liability to the other as stipulated in Article 19(3) of the CISG. In addition, CIETAC recognizes that one party had orally accepted the modifications made to the sales confirmation, with even China declaring against an oral contract. Lastly, CIETAC holds that the sales confirmation has been established when both parties signed on the sales confirmation instead of the acceptance being effective. Korean companies should, thus, note these issues when they solve disputes at CIETAC.

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A Study on the Dispute Boards in International Medium and Long-term Transaction - Focus on the Construction Contract - (중장기 국제거래에서 분쟁해결위원회에 관한 고찰 - 건설계약을 중심으로 -)

  • Yu, Byoung Yook
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.57
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    • pp.79-108
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    • 2013
  • International transactions of plant and construction project need to time to time for completing the contract. During the performing the contract there may arise many claims and disputes it should be settled rapidly for processing schedule of works. However, arbitration and litigation for settlement of dispute are inappropriate in time and expense under the specifications of plant and construction project. Dispute boards are one of the successful resolution method of dispute prior to litigation or arbitration. If the dispute board was failed, of course, it may be allowed to continue into litigation or arbitration. As the creative methods of parties agreement, dispute boards may be expected to avoid claims and dispute in long and medium international contract. The purpose of this paper is to explore the specification and limitations of dispute boards that may clear disputes under long and medium contract of construction and procurement. It needs to be understand to determine whether is the useful methods for resolving dispute in the international project. This paper considers the specific natures of dispute board and its rules, procedures and problems including ICC and FIDIC for the contract of long and medium transaction.

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A Comparative Study on the International Trade and Commercial Arbitration between Korea and Mongolia (한국과 몽골의 무역과 상사중재제도에 관한 비교연구)

  • YU, Byoung-Uk
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.69
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    • pp.495-522
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    • 2016
  • The Mongolia is one of the highly impressive potential developing countries in Asia according to open the economic market. Since early 1990 as the falling apart from Russian union, Mongolia has tried to developing economic status with plentiful stocked natural resources in their country. The Mongolia has been accepting the modernizing their legal systems including national amended law of arbitration 2003 which was based in the 'UNCITRAL Model Law on International Commercial Arbitration 1985' to harmonize with the international arbitration trends. However, UNCITRAL council announced the adapting members countries excluding Mongolia caused by the inappropriate international standard conditions. As the foreign business partners with Mongolian, it is not easy to agree a site in Mongolia for the place of arbitration on their disputes settlement cause by the weak confidence and precarious interruption under the arbitration processing and enforcement of award on the uncertain law of arbitration on their law of arbitration. Recently, the Mongolian government intends to revise their arbitration law to comply to newly UNCITRAL Model Law in 2006 revision for improving the putting confidence and promoting the choosing arbitration on the place of commercial disputes in Mongolia. It is the point to considering in this article to compare to the problems and alternative ways to the legal and practical arbitration services for reliant and confirming arbitration system in Mongolia for the business parties of Korea.

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A Study on the Substantive Law under the International Commercial Arbitration (중재에 있어서 실체적 준거법에 관한 연구)

  • Park, Eun Ok;Choi, Young Joo
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.58
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    • pp.99-124
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    • 2013
  • International commercial arbitration is a specially formed mechanism for the final and binding settlement of disputes arisen between contracting parties regarding procedures, structures or other contractual relationship agreed by them. It is a resolution system which is processed autonomously by arbitrators who are appointed by contracting parties without involving the national court. If the contracting parties want to settle their disputes by arbitration, there must be a valid agreement. With a valid agreement, the most important concern is which law(called as the substantive law) should be applied in order to determine the rights and obligations of both contracting parties in relation to the dispute. At this point, the substantive law is really important because it is applied to the dispute itself directly during proceedings as well as it plays an crucial role in scrutiny and enforcement of arbitral awards. This article discusses about the substantive law under international commercial arbitration, specially focusing on the regulations of the ICC rules of arbitration, which is the most widely used all over the world and UNCITRAL Model law, which most countries' rule and laws are based on. By discussing how these rules and regulations should be interpreted and applied, it is expected to provide practical help to practitioners when they agree on an arbitration agreement.

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An Empirical Study on Busan firms' Perception of Usefulness of Arbitration System (중재제도유용성과 부산지역기업들의 인식도에 관한 실증적 연구)

  • Park Bong-Gyu;Shin Koon-Jae
    • Journal of Arbitration Studies
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    • v.15 no.3
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    • pp.27-54
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    • 2005
  • In the era of globalization firms must operate all useable resources into marketing activities to survive on the unlimited competition. However, firms face many kinds of disputes with counterparts because of aggressive marketing activities. There are two ways of solving these disputes : litigation and arbitration. As compared to litigation, arbitration is more popular because of such merits as the enforcement of arbitral award in foreign countries, the single trial system, the settlement by specialists, and the confidential proceedings. This paper examines trade firms' perception on the arbitration system and the effects of the advantages of arbitration and quality of arbitrators on the outcome of arbitration. The results show that the advantages of arbitration and quality of arbitrators influenced positively on the outcome of arbitration, but influenced negatively on the closed-door of arbitration procedures and a fair procedure of arbitrator. Though this paper has several limitations, this paper may contribute to figure out the relationship between arbitration merits and quality of arbitrator and outcomes as a first empirical paper and to suggest future research method and direction.

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