• 한국중재학회지:중재연구
• /
• 제25권3호
• /
• pp.3-31
• /
• 2015

This paper sets out a multi-dimensional approach that parties drafting a "hybrid clause" for their arbitration agreement can adopt, for purposes of maximizing enforceability, taking into account the multi-jurisdictional interplay between the seat Court, the governing law and the enforcement Court(s), as well as mandatory rules that can be present in the lex arbitrii, the governing law, and/or the law of the enforcement for a. This paper draws on both the co-authors' practice experience, as well as first principles of party autonomy in light of mandatory rules, based predominantly on the scholarship of Briggs and Nygh.

• 무역상무연구
• /
• 제20권
• /
• pp.129-150
• /
• 2003

Software license agreements, to be useful in the mass market, could not be individually negotiated, and had to be standardized and concise. The software license agreement needs to be presented to the licensee-users in a fashion that would allow for mass distribution of software, also for it to enforceable, that would draw the users' attention to the terms and conditions under which the publisher allowed the use of the software. These needs have been accomplished, with or without fail, through so called the "shrink-wrap licenses" Shrink-wrap licenses purpose to transfer computer softwares to their users by defining the terms and conditions of use of the software without implicating the "first sale doctrine" of the Copyright Act. These shrink-wrap licenses have become essential to the software industry. However, in USA, the law applicable to these licenses has been unclear and unsettled. Courts have struggled to develop a coherent framework governing their enforceability. Meanwhile, the National Conference of Commissioners on Uniform State Laws ("NCCUSL") in USA promulgated the Uniform Computer Information Transaction Act ("UCITA") governing contracts for computer information transaction on July 29, 1999. One clear objective of UCITA was to settle the law governing the enforceability of shrink-wrap licenses. In these respects, this paper first introduces the various forms that shrink-wrap licenses take(at Part II. Section 1.), and explains the main advantages of them(at Part II. Section 2.) Here it shows how shrink-wrap licenses value themselves for both software publishers and users, including that shrink-wrap licenses are a valuable contracting tool because they provide vital information and rights to software users and because they permit the contracting flexibility that is essential for today's software products. Next, this paper describes the current legal framework applicable to shrink-wrap licenses in USA(at Part III). Here it shows that in USA the development of case law governing shrink-wrap licenses occurred in two distinct stages. At first stage, judicial hostility toward shrink-wrap licenses marked such that they were not enforced pursuant to Article 2 of the Uniform Commercial Code. At second stage, courts began to recognize the pervasiveness of shrink-wrap licenses, their indispensability to the rapidly expanding information technology industry, and the urgent need to enforce such licenses in order to maintain low prices for consumers of computer hardware or software, resulting in the recognition of shrink-wrap licenses. Finally, in view of the importance of UCITA, this paper examines how it will affect the enforceability of shrink-wrap licenses(at Part IV). The drafters of UCITA, as well as the scholars and practitioners who have criticized it, agree that it validates shrink-wrap licenses, provided certain procedural protections are afforded to purchasers. These procedural protections include the licensee end-user must (i) manifest his assent to the shrink-wrap license, (ii) have an opportunity to review the shrink-wrap license, (iii) have a right to return the product without costs.

• 한국중재학회지:중재연구
• /
• 제9권1호
• /
• pp.115-137
• /
• 1999

The UNCITRAL, during its thirty-two session in 1999 discussed certain issues and problems identified in interactional commercial arbitration practice. The issues discussed include certain aspects if conciliation proceedings ; the legislative requirement of a written form for the arbitration agreement ; arbitability ; soverign immunity ; consolidation of more than one case into one arbitral proceedings ; confidentiality of information in arbitral proceedings ; rasing claims in arbitral proceedings for the purpose of set-off ; decisions by "turncated" arbitral tribunals liability of arbitrators ; power by the arbitral tribunal to award interest ; costs of arbitral proceedings ; enforceability of interim measures of protection ; and discretion to enforce an award that has been set aside in the state of origin. Among those issues discussed, most of States agreed that the issues relating to certain aspects of conciliation proceedings ; the legislative requirement of a written form for the arbitration agreement ; enforceability of interim measures of protection ; and discretion to enforce an award that has been set aside in the State of origin should have priority over other issues. The UNCITRAL may wish to consider the desirability of preparing uniform provisions on any of those issues, possibly indicating whether further work should be towards a legislative text (such as a model legislative provision or a treaty) or a non-legislative text (such as a model contractual rule).

• 한국중재학회지:중재연구
• /
• 제21권1호
• /
• pp.239-257
• /
• 2011

This article examines the requirements of Article 37 of the ICDR International Arbitration Rules and issues that could arise if a party petitions a U.S. Federal Court to enforce an emergency arbitrator's Article 37 decision to grant pre-arbitration provisional relief. On May 1, 2006, ICDR introduced a new procedure for the granting of emergency arbitral relief under its ICDR Rules. The procedure enables a party to apply for emergency interim relief before the appointment of an arbitrator or tribunal to adjudicate the merits of the dispute. Instead, the application for emergency relief is considered by an emergency arbitrator appointed by the ICDR. In short, the ICDR has quickly appointed emergency arbitrator and resolved a challenge to an appointment within 36 hours. In addition, the emergency decisions have been issued within just a couple of weeks. In particular, we looked at what would happen after Article 37 emergency relief is granted. Based on my examination of U.S. cases on the enforceability of interim awards and orders, We conclude that U.S. courts would enforce Article 37 interim measures, whether they are characterized by the emergency arbitrator as an interim order or award. Where the situation warrants, arbitration executives should embrace and use emergency relief procedure of ICDR Rules.

• 한국중재학회지:중재연구
• /
• 제24권3호
• /
• pp.47-77
• /
• 2014

Ever since its introduction in the 1927 ICC Arbitration Rules, scrutiny of awards by the ICC Court has been a cornerstone feature of ICC arbitration. Most players involved in the arbitral process are likely to concede that a certain level of review of arbitral awards is both desirable and beneficial. Indeed, proponents among the users are frequently influenced in their choice of the ICC as the administering arbitral institution, based on their strong conviction that time and money invested in the resolution of a dispute is ultimately only well spent if awards are voluntarily complied with or at least less susceptible to be set aside. By providing a look behind the scenes of the scrutiny process, the article does away with tales of excessive intervention on behalf of the arbitral institution when reviewing and approving awards and demystifies the role played by the ICC Court throughout its close interaction with arbitral tribunals operating under the ICC Rules. The article further argues that the scrutiny process can be a highly efficient tool that helps to increase the quality and enforceability of awards rendered under the aegis of the ICC.

• 한국중재학회지:중재연구
• /
• 제19권3호
• /
• pp.161-178
• /
• 2009

This article focuses on the enforceability of arbitration agreements m the dispute of standby letter of credit, especially with the case analysis of the leading case from the U.S. Bankruptcy Court. In Nova Hut a.s. v. Kaiser Group International Inc. case, while the underlying contract contained an arbitration clause, a guarantee to assure contractor's performance did not contain an arbitration clause. Nova Hut drew on the standby for the Contractor's failure to deliver contractual obligations. Against the Kaiser's action under US Bankruptcy law, Nova Hut moved to stay the proceedings pending arbitration, to compel arbitration, and to dismiss the complaint. The US Bankruptcy Court for the District of Delaware denied Nova Hut's motions. On appeal, Kaiser argued that it was not subject to arbitration since it was not a party to the contract. It also argued that Nova Hut had waived its right to arbitration by filing a proof of claim in the bankruptcy proceeding and commencing legal actions in other countries. The appeals court noted that in order to avoid arbitration on those grounds prejudice must be shown. It indicated that because there was no long delay in requesting arbitration and no discovery conducted m the course of litigation, the Kaiser could not demonstrate actual prejudice on the part of Owner. In light of public policy favoring arbitration, the nature of the claims in the parties' agreements, Kaiser's conduct in embracing the agreements, and their expectation of benefit, the appeals court ruled that the doctrine of equitable estoppel applied in requiring the Parent to arbitrate.

• 한국중재학회지:중재연구
• /
• 제34권1호
• /
• pp.27-50
• /
• 2024

This paper examines issues concerning conflicts between arbitral awards and public interests, particularly with respect to economic sanctions. Sanctions have been widely used by political entities, such as States and organizations, as means to promote public interests and to resolve cross-border disputes. In particular, economic sanctions have been increasingly more visible in recent years due to the accelerating fragmentation of the international communities, and their magnitude and range of the impacts have grown accordingly. For example, the U.S. and the EU have imposed economic sanctions on Russia and related persons in response to Russia's invasion of Ukraine. The U.S. recently re-introduced a comprehensive economic sanction on Iran. One of the notable impacts of the sanctions, particularly economic sanctions, is that on international arbitration. Sanctions are essentially built on the notion of the protection of public interests, and public interests are some of the few grounds upon which recognition and enforceability or arbitral awards may be rejected. However, jurisprudence on such conflict between sanctions and arbitral awards have not been sufficiently addressed in Korea because court case and administrative decision records on this conflict have not been sufficiently accumulated. In this regard, this paper begins with offering a survey of the concept of public interests, economic and trade sanctions, arbitral awards and their enforceability, and the relationships between them. It then examines the mechanism upon which public interests, trade and economic sanctions may lead certain arbitral awards unenforceable. Next, the paper suggests judiciaries' balanced approach toward the public interests protected by trade and economic sanctions and the predictability and fairness in the enforcement of arbitral awards. Finally, this paper concludes with the methods of the implementation of such balanced approach.

• 한국중재학회지:중재연구
• /
• 제20권2호
• /
• pp.151-171
• /
• 2010

This paper investigates the consumer arbitration practices In the U.S. The key issue in consumer arbitration is how to protect the individual consumers from the loss of their legal rights stemming from the arbitration agreement with the business. In the U.S., the major legal doctrines to protect individual consumer include the voluntary-knowing-intelligent doctrine, unconscionability doctrine, and void contract. Even though the US courts are favorable to the enforceability of arbitration agreement, they strictly apply the contract law theories in deciding the existence of arbitration agreement, providing a strong common law protection for the consumers in arbitration. However, the practices for protection of consumers in arbitration in Korea are not mature yet. If consumer arbitration is widely adopted into B to C contracts, a protective measure for individual consumer can be found in the Act of Clause Regulation providing that the business has duty to explain the relevant clause in the adhesive contracts.

• 한국중재학회지:중재연구
• /
• 제30권3호
• /
• pp.3-19
• /
• 2020

With the advent of the Free Trade Agreement between Korea and the U.S. and an increase in trade volume between the two countries, the possibility of commercial disputes has escalated among international merchants. It has been well-known that arbitration as an alternative dispute resolution is an efficient way to resolve international commercial disputes. When arbitral awards are enforced in the judicial system, the court will inevitably have to be involved with the enforcement procedures. The court is a typical legal entity to confirm arbitral awards. Through a confirmation process, the winning party obtains the same legal status of final judgment rendered by the court. However, a winning party in arbitration will have to overcome a legal hurdle in the enforcement process of arbitral awards. This article aims to investigate how the courts control the arbitration practices and what the basic legal issues in the enforcement of arbitral awards are. The US Federal Arbitration Act is investigated, while relevant cases are reviewed and updated for legal analysis.

• 한국중재학회지:중재연구
• /
• 제21권3호
• /
• pp.165-187
• /
• 2011

This paper investigates on the legal doctrine of "voluntary, knowing, and intelligent" (VKI Doctrine). The main points that were discussed include the history of the VKI doctrine and the US courts' attitudes toward the doctrine. It was also discussed how the VKI doctrine influenced the protection of consumer who agreed to arbitrate with businesses. The US courts' attitudes have shown to be split in application of the VKI doctrine to disputes in the enforceability of arbitration agreement between the consumers and the businesses. In order for the arbitration agreement to be invalidated, the state legislature cannot enact law that are directly targeted toward the validity of arbitration agreement. Rather the contract law in each of the state should be applied to the evaluation of the validity of an arbitration agreement. As the more and more consumers become familiar with the arbitration, the need for the VKI doctrine to protect the individual consumers in arbitration is expected to be diminished in future disputes.