• Journal of Arbitration Studies
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• v.32 no.3
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• pp.47-70
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• 2022

This paper studies legal regulation of the public policy exception in the Russian Federation and domestic judicial practice on the issue. It reviews current legislation and analyzes a number of recent court cases where an arbitral award rendered by a foreign arbitration body was refused recognition and enforcement based on public policy violation. By doing so, it contributes to the knowledge on the concept of public policy in the Russian legal system and how public policy can affect the process of recognition and enforcement of foreign arbitral awards on its territory. The review of court cases demonstrates different aspects of how the public policy exception can be applied by Russian arbitrazh courts. Such decisions can provide a clearer picture of the kinds of situation that can lead to invoking the public policy clause by the court. Also, it is of practical value as persons preparing to file a claim or to be a defendant in a Russian court can be required to present existing court decisions in support of their claim or defence.

• Journal of Arbitration Studies
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• v.27 no.1
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• pp.3-35
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• 2017

For recent years, several disputes between Korean consumers and multinational companies have arisen. Since the disputes were big and material that children's safety was at issue, a question started if Korean law properly has protected consumers' rights against multinational companies. While the Korean legal society tried to legislate punitive compensation with this concern, the U.S. Supreme Court reached an interesting case law regarding consumer contracts. A recent trend on consumer contracts in the United States shows that general terms have arbitration clause with class action waiver. As much as international arbitration has worked as the most effective resolution in international commercial disputes, the concept is still foreign and the experts are not approachable to lay individual consumers. However, class action in arbitration can hugely help for lay individual consumers to bring a case before arbitration tribunal. California courts consistently showed the analysis that the practical impact of prohibiting class action in arbitration clause is to ban lay individual consumers from fighting for their rights. However, the Supreme Court held that the arbitration clause shall be enforced as parties agree even if consumers practically cannot fight for their rights in the end. Even though consumer contracts are a typical example of lack of parity and of adhesive contract, the Supreme Court still applies liberalism that parties are equal in power and free to agree. This case law has a crucial implication since Korean consumers buy goods and services from the U.S. and other countries in everyday life. Accordingly, they are deemed to agree on the dispute resolution clauses, which might violate their constitutional right to bring their cases before the adjudication tribunal. This issue could be more important than adopting punitive compensation because consumers' rights are not necessarily governed by Korean law but by the governing law of the general terms and conditions chosen and written by the multinational companies. Thus this paper studies and analyzes the practical reality of international arbitration and influence of arbitration clause with class action waiver with the U.S. Supreme Court and California case laws.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.22
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• pp.173-197
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• 2004

Letter of Credit between buyer and seller in International Trade Transaction is the means of payment which makes International Trade operate smoothly by guaranteeing an exporter against non-payment and an importer against non-delivery. Therefore, the parties to a sale apply UCP500 established by the International Chamber of Commerce, in accordance with principle of the freedom of contract among the parties concerned, to look to their own legal stability. However, we may recognize some cases to have been applied principle of faith and trust, one of the dominant principles of the civil law, by the Korean Supreme Court and other cases to have not been applied that principle by the Korean Supreme Court. The Court shall apply UCP500 strictly as long as the parties concerned adopt UCP500 in view of the legal stability. In other words, in case that the Court applies principle of faith and trust to the case related to L/C, this rule - principle of faith and trust - should apply to the subject matter which have not stipulated in UCP500 under certain restriction. We suggest keeping in mind points to korean companies as follows; First, the parties to a sale shall understand L/C basis transaction and principles related to L/C deeply. Second, the exporter shall prepare documents in compliance with L/C and fulfil his or her obligation according to UCP500 and L/C related to the contract. Third, as buyer or importer, when he or she receive the shipping documents with discrepancies from the notifying bank, he or she makes him or herself clear to all the parties concerned. Fourth, as bank, she shall examine all the documents according to UCP500 and L/C related to the contract, and if any document with discrepancies, the bank, by all means, shall approach applicant first, and then decide whether to pay the credit amount to beneficiary or not to.

• The Korean Journal of Air & Space Law and Policy
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• v.31 no.2
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• pp.73-98
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• 2016

This is a case review of the Korean Supreme Court about international jurisdiction over a foreign-related case. This case is a guideline to other following cases how Korean court has international jurisdiction over the foreign elements cases. This case was an air crash accident in Busan, Korea. And the applicant was a chinese who was parents of flight attendant. The defendant was Air China. The applicant suid the defendant in Korea court, requesting for compensation for damages based on the contract of employment between died employee and the defendant and tort. The trial court rejected jurisdiction. But Supreme court granted jurisdiction on Korean court. The court determined the jurisdiction by the Korean Private International Law Act(KPILA). The KPILA has a concept of 'substantial connection', it is a main legal analysis to determine the jurisdiction. In the act, Article 2 Paragraph 1 says "In case a party or a case in dispute is substantively related to the Republic of Korea, a court shall have the international jurisdiction. In this case, the court shall obey reasonable principles, compatible to the ideology of the allocation of international jurisdiction, in judging the existence of the substantive relations." And Article 2 Paragraph 2 declares "A court shall judge whether or not it has the international jurisdiction in the light of jurisdictional provisions of domestic laws and shall take a full consideration of the unique nature of international jurisdiction in the light of the purport of the provision of paragraph (1)." In this case review find concepts, theories and cases out to clarify the meaning about Article 2 of the KPILA. Also it quoted from the concept of "the base rule" in Rome I (Regulation (EC) 593/2008 on the law applicable to contractual obligations) to apply the contract of employment between flight attendant and Air carrier.

• Journal of Arbitration Studies
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• v.21 no.3
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• pp.115-136
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• 2011

In the past, Chinese arbitral system and Chinese arbitral associations were avoided by international society due to the cases which Chinese court rejected the recognition and enforcement of foreign arbitral awards based on rural protection. Especially Chinese court adjudicated to reject the recognition and enforcement of arbitral awards by interpreting public policy broadly. The abuse of public policy by court threats the existence of commercial arbitration system. Under this awareness, the author figured out Chinese court shows what kind of attitude about public policy of Chinese court in the present through analyzing the cases about rejection of enforcement in Chinese arbitral awards in order to analyze whether Chinese court still maintain the negative attitude like past or there exist changes with public policy which is one of the rejection reasons of recognition and enforcement in foreign arbitral awards as the central figure. Chinese court behaved in an uncooperative attitude about arbitral awards like that it reached a verdict to reject the enforcement of arbitral awards by reason of violation in public policy about several foreign arbitral awards at the beginning stage of establishing arbitration law. However, the situation of abuse in public policy was improved a lot by Chinese prime court which enforces pre-inspection system about judgment of rejection of enforcement in arbitral awards. So, there is no case about rejecting the approval and enforcement of arbitral awards by reason of violation in public policy by Chinese court except Yongning Co. case. Moreover, Chinese court got the trust and support from other countries through reinforcement of applied standard. However, Chinese court had been expressed concern from international society because they highly applied public policy and rejected to enforce arbitral awards in the recent case of Yongning Co.. Therefore, this study examined whether it is appropriate to apply public policy of Chinese court in the case of Yongning Co., and then I concluded that. Although Yongning Co. case is the first case which Chinese prime court agrees with public policy by reason of rejection of approval and enforcement in foreign arbitral awards, in my opinion, it doesn't mean that Chinese court has fundamental change in basic attitude and position about the approval and enforcement of foreign arbitral awards. Chinese court keeps the cautious uses of public policy in legal judgment of foreign arbitral awards and it looks like implementing the obligation in regulation of New York Convention sincerely.

• Journal of Arbitration Studies
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• v.26 no.3
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• pp.93-119
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• 2016

Park Tae-hwan, the Korean Olympic gold medal swimmer, was suspended for eighteen months by the International Swimming Federation (FINA) in September 2014. Park completed his suspension in March 2016, but the Korea Olympic Committee (KOC), relying on its Article 5.6, then prohibited him from joining the national team for an additional three years for the same doping violation. The KOC's penalty exceeded that provided by the World Anti-Doping Code, which governs the Olympics and most international sports federations, and contravened well-established precedent from the Court of Arbitration for Sport (CAS). The KOC, along with the Korea Swimming Federation, maintained the suspension until decisions by the Seoul Eastern District Court and CAS forced them to retract the penalty. We describe the sports regulations and arbitration decisions governing the Park case, how each side used the law to support their positions, the flaws in the KOC's legal analysis, and the case's resolutions by the Korean court and CAS. Finally, because this legal conflict has damaged the KOC's reputation, created uncertainty over the committee's doping penalties, and undercut the authority of the World Anti-Doping Code and the CAS in Korea, we recommend institutional changes in Korea's sports jurisprudence.

• Journal of Arbitration Studies
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• v.28 no.4
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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.

• Journal of Korea Trade
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• v.27 no.1
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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.

• The Korean Journal of Air & Space Law and Policy
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• v.15
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• pp.40-66
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• 2002

The purpose of this paper is to investigate the legal controㅣ, by using the International Criminal Court(ICC) that will enter into force to the most serious crimes of concern to the international community as a whole, and regulates the jurisdiction with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; Cd) The crime of aggression. However, the existing ICC Statute excludes (e) Crimes, established under or pursuant to the treaty, which was regulated by the ICC draft statute that the International Law Commission(ILC) examined and submitted to the UN General Assembly in 1994, and which contained aircraft terrorism such as hijacking in the Hague Convention of 1970 or sabotage in the Montreal Convention of 1971 in Annex of ILC draft. Therefore, this paper examines the legal character of aircraft terrorism as one of the most serious crimes of concern to the international community as a whole, and suggests two kinds of legislative comments for the amendment of the ICC Statute including aircraft terrorism as an object of the jurisdiction of the Court, for suppressing aircraft terrorism in advance and ensuring equitable penalty by ICC system.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.47
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• pp.79-104
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• 2010

The Original Equipment Manufacturer(OEM) Export is one of the most frequent trading system in international transactions, especially for Korean export companies. Even with vast majority of benefits of OEM Export, it still has two sides: bright and dark. Frequently, uneven position between parties drives a party to endure transactional practices harsh and unconscionable. A Recent case in one Korean court shows another aspect of OEM transactions. For the provisional measure against unilateral termination of the contract, it contain essential legal issues that can arise in international OEM transactions, like international jurisdiction, interpretation of contracts, termination of contracts, etc. Deep analysis of several issues in the case, apart from the court's decision, is expected to give insight into the legal status of the parties for strategic operations of OEM practices.