• 한국중재학회지:중재연구
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• 제19권1호
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• pp.45-65
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• 2009

China and Taiwan had opened complete Three Linkages era December 2008, in the 59 years. The improvement of two countries' relationship is expecting to spur two countries more on the economy exchange. However the increasement of investment and trade between two countries will increase disputes to ratio. In order to settle the disputes related to economy between two countries, the most favorite way is to use arbitral system which involve less public power. After China and Taiwan recognized this point, they announced provisions which allow to solve controversies through the arbitration between parties of two countries since 1980, and prepared legal basis for dispute settlement between two countries. However, because China and Taiwan do not authorize each party as a country, the execution application made by each party based on New York Convention related to foreign arbitral awards cannot be approved. Because of these kind of reasons China and Taiwan should agree in order to guarantee mutual execution of arbitral awards which is an ultimate purpose of arbitration. However because of the political situation of two countries there are provisions related to execution for arbitral awards decided by each party. In this paper, I separated the provision related to mutual execution for arbitral awards of each party of China and Taiwan, examined exposed problems, and suggested ways to improve. It can support some of assistance and implication to establish basis of arbitral system between South Korea and North Korea and to suggest direction to derive through this kind of study.

• 한국중재학회지:중재연구
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• 제34권1호
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• pp.27-50
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• 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
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• 제24권3호
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• pp.47-77
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• 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
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• 제28권4호
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• pp.131-152
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• 2018

On October 31, 2013, the Singapore Court of Appeals handed down a landmark decision in the case of PT First Media TBK v Astro Nusantara International and Others [2013] SGCA 57. The case arose out of an arbitration in Singapore involving the Malaysian conglomerate Astro and the Indonesian conglomerate Lippo, which culminated in a USD 250 million award in favor of Astro. The final award was given to three Astro subsidiaries who were not parties to the arbitration agreement, but who were joined in the arbitration pursuant to an application by Astro. Lippo then applied to the Singapore High Court to set aside the enforcement orders. The Court of Appeals, however, reversed the High Court's decision, and found that Astro was only entitled to enforce the awards. Also, the Court of Appeals undertook a detailed analysis of the use of active and passive remedies to defeat an arbitral award at the seat and the place of enforcement, respectively. It also touches on the innovation of forced joinders of third parties in arbitrations, which have garnered significant interest in the arbitration community. This decision is therefore expected to have a significant impact on the practice of international arbitration, including in relation to how awards can be enforced or defeated, as the case may be.

• 한국중재학회지:중재연구
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• 제30권2호
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• pp.43-68
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• 2020

The "arbitration" system resolves disputes through judgments on rights relations or claims between disputed parties by judging by private trial, but it does not have organizational and material bases to execute the contents of these judgments. Therefore, unless the parties succeed in voluntarily surrendering to the results of the arbitration award, the implementation of the award will be accomplished by the enforcement of the assistance of the National Court. However, unlike the court's ruling, the arbitration tribunal does not generate enforcement power from the judgment itself, and it must be filed with the court for execution. In this regard, Germany provides for arbitration proceedings in the Civil Procedure Act Volume 10. In particular, Article 1060 governs the approval and enforcement of domestic arbitral awards. Accordingly, the procedure for declaring the feasibility of domestic arbitration proceedings and the execution of forced execution are commenced. Regarding the enforceable declaration of a domestic arbitral award, it differs from the simpler process requirements compared to the procedure in a foreign arbitral award, and usually has the same effect as a final judgment between the parties without a separate approval procedure. However, the arbitration award does not constitute an enforceable power that can be implemented, but is enforced through the national court's declaration procedure. However, if there is a ground for cancellation as provided for in Article 1059 (2) of the German Civil Procedure Act, the arbitral award is canceled and the application for enforcement is dismissed.

• Journal of Korea Trade
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• 제27권1호
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• pp.176-191
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• 2023

Purpose - When recovered through arbitration a contractual penalty that is disproportionately high can become grounds for challenging an arbitral award or an obstacle to its enforcement within Russian jurisdiction. This article investigates how violation of the principle of proportionality can affect the enforcement and challenging of arbitral awards in Russia. Based on the examination of the current legislation, along with the analysis of recent court cases on the subject, the ultimate object of this article is to discern practical recommendations for Korean practitioners who are looking to challenge and/or enforce arbitral awards in Russian courts. Design/methodology - The research process included the reviewing of current Russian legislation conducted in concurrence with academic literature review, searching and analyzing recent court cases where the relevant legal provisions and concepts were applied, and formulating practical implications of the research at its final stage. Findings - Through its relation to the principle of fairness/justice the authors establish the connection between the principle of proportionality and the public policy of Russia. Analysis of recent court cases showed two conflicting trends of whether a disproportionate penalty can be considered a public policy violation. The authors offer practical recommendations on how to substantiate a relevant claim regarding contractual penalty reduction by the court, depending on the desired outcome. Originality/value - The article contains an up-to-date summary of the legal provisions on the principle of proportionality of civil liability in Russia and identifies the most recent trends in court practice on the issue that is not covered by existing studies.

• 한국중재학회지:중재연구
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• 제29권2호
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• pp.107-132
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• 2019

The arbitration procedure, which is a private trial, does not have a separate enforcement agency. Therefore, unless a party consents to the arbitration award and voluntarily fulfills the award, its execution is accomplished through the implementation of the national court. In particular, the decision in the foreign arbitration procedure will be refused or rejected for the arbitration award in case the proceedings of the law and procedure on which the judgment is based are caused by inconsistency with the domestic law or procedural defect. However, all foreign arbitration awards generally do not have to go through the approval process, and it will come into force with the arbitration award. In the case of Germany in the revision of the German Civil Procedure Act of 1996, the main provisions of the New York Convention concerning the ratification and enforcement of arbitration proceedings are reflected. Germany provides for the arbitration procedures in the arbitration proceedings of Book 10 of the Civil Procedure Act. Particularly, with Article 1061 in Book 10 Section 8 below, the approval and enforcement of foreign arbitrators shall be governed. Article 1061 has been referred to as "The New York Convention on the Recognition and Enforcement of Foreign Jurisdictions," Article 5 (1). The main reasons for approval and enforcement rejection are: (1) Reason for the acceptance or refusal of enforcement by request of the parties: Reason for failure of subjective arbitration ability, invalidation of arbitration agreement, collapse of attack or defense method, dispute not included in arbitration agreement, (2) Reasons for the approval and enforcement of arbitration considered by the competent authority of the arbitrator: violation of objective arbitration ability, violation of public order, but not based on the default of German statute.

• 무역상무연구
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• 제31권
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• pp.107-134
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• 2006

Enforcement of an arbitration award is an extremely important issue in arbitration. Arbitration, as a dispute settlement process, is rendered meaningless if it is not possible to enforce an award rendered by an arbitration tribunal. On the other hand, the present international arbitration system guided by the New York Convention and UNCITRAL Model Law is established on the dual supervision from the national courts. The nationality of the international arbitral award closely relates to the supervision of the national court, and the national court is entitled to decide the nationality of the international award in accordance with the conditions set in its own domestic law. The national court may set aside arbitral award made in its territory while the foreign court may refuge enforcement of foreign arbitral awards according to its own law and international convention to which it is a party. The conditions set in the Arbitration Law of the People's Republic of China are in agreement with those set in the UNCITRAL Model Law. The Chinese national court is entitled to set aside international awards made in China in accordance with the Chinese Law. The purpose of this paper is to clarify the Chinesr practice on the revocation of international commercial arbitral awards.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.103-122
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• 2004

Recognition and enforcement of the arbitral award play an important role in the settlement of the international commercial disputes. The New York Convention makes it a duty for the courts of signatories to recognize and enforce the foreign arbitral awards not taking the nationality of the party concerned into consideration. Recognition and enforcement of the arbitral award may be refused if the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. The arbitral award has the same force as an irrevocable judgement including effect of excluding further litigation, its execution and formation. But the effect of set aside arbitral award made abroad in arbitral place was denied by France court for the interest of his people. There is no arbitral act but arbitral procedure is regulated by New Code of Civil Procedure in case of France. An appeal against the decision which grants recognition or enforcement is open if the recognition or execution is contrary to international pubic policy in virtue of Art. 1502. Arbitrator may consider compulsory provisions in arbitral place to assure to recognition and enforcement of the arbitral award.

• 한국중재학회지:중재연구
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• 제17권3호
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• pp.3-30
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• 2007

The New York Convention(formally called "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards") done in New York on June 10, 1958 has been adhered to by more than 140 States at the time of this writing, including almost all important trading nations from the Capitalist and Socialist World as well as many developing countries. The Convention can be considered as the most important Convention in the field of arbitration and as the cornerstone of current international commercial arbitration. Korea has acceded to the New York Convention since 1973. When acceding to the Convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provisions relating to the enforcement of arbitral awards falling under the New York Convention begin at Article III. The Article III contains the general obligation for the Contracting States to recognize Convention awards as binding and to enforce them in accordance with their rules of procedure. The Convention requires a minimum of conditions to be fulfilled by the party seeking enforcement. According to Article IV(1), that party has only to supply (1) the duly authenticated original award or a duly certified copy thereof, and (2) the original arbitration agreement or a duly certified copy thereof. In fulfilling these conditions, the party seeking enforcement produces prima facie evidence entitling it to obtain enforcement of the award. It is then up to the other party to prove that enforcement should not be granted on the basis of the grounds for refusal of enforcement enumerated in the subsequent Article V(1). Grounds for refusal of enforcement are stipulated in Article V is divided into two parts. Firstly, listed in the first Para. of Article V are the grounds for refusal of enforcement which are to be asserted and proven by the respondent. Secondly, listed in Para. 2 of Article V, are the grounds on which a court may refuse enforcement on its own motion. These grounds are non-arbitrability of the subject matter and violation of the public policy of the enforcement country. The three main features of the grounds for refusal of enforcement of an award under Article V, which are almost unanimously affirmed by the courts, are the following. Firstly, The grounds for refusal of enforcement mentioned in Article V are exhaustive. No other grounds can be invoked. Secondly, and this feature follows from the first one, the court before which enforcement of the award is sought may not review the merits of the award because a mistake in fact or law by the arbitrators is not included in the list of grounds for refusal of enforcement set forth in Article V. Thirdly, the party against whom enforcement is sought has the burden of proving the existence of one or more of the grounds for refusal of enforcement. The grounds for refusal of enforcement by a court on its own motion, listed in the second Para. of Article V, are non-arbitrability of the subject matter and public policy of the enforcement country. From the court decisions reported so far at home and abroad, it appears that courts accept a violation of public policy in extreme cases only, and frequently justify their decision by distinguishing between domestic and international public policy. The Dec. 31, 1999 amendment to the Arbitration Act of Korea admits the basis for enforcement of foreign arbitral awards rendered under the New York Convention. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of the award.