• Journal of Arbitration Studies
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• v.29 no.2
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• pp.161-199
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• 2019

As international trades between Korea and China increase, the number of civil disputes also increases. The civil dispute settlement system and the court system in China are distinctive from those of Korea. China has its own court systems which are characterized by the Chinese Communist System. Due to the influence of the decentralized local autonomy tradition, the case laws of each Province in China are not unified throughout the China. This is partly because only two instances are provided in China, and the parties cannot appeal to the Supreme People's Court of China unless there is a special reason. In Korea, three instances are provided and parties can appeal to the Supreme Court if a party so chooses. In addition, there are many differences in the judicial environment of China compared to Korea. Therefore, if there is a dispute between a Korean party and a Chinese party, arbitration is recommended rather than court litigation. This article examines the points to be considered for interim measures in China during arbitration. Where the seat of arbitration is Korea, interim measures cannot be taken by the order of the Chinese court in the middle of or before arbitration procedures. On the other hand, it is possible to take interim measures through the Chinese court in the middle of or before the arbitration procedure in China or Hong Kong. It also reviews the points to be noted in case of the enforcement of arbitration awards in China where permission from the upper Court is required to revoke or to deny the recognition or enforcement of a foreign-related or foreign arbitration award.

• Journal of Arbitration Studies
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• v.25 no.2
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• pp.19-47
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• 2015

International arbitration is an increasingly popular means of alternative dispute resolution for cross-border commercial transactions. The primary advantage of international arbitration over court litigation is enforceability. An international arbitration award is enforceable in most countries in the world. Especially, statistics indicate of ASEAN such as Malaysia and Singapore that the vast majority of defeated companies comply with the terms of international arbitral awards against them or settle soon after the award is rendered. Unlike Malaysia and Singapore, in Indonesia, there are several grounds for refusal of enforcement of an award including where both the nature of the dispute and the agreement to arbitrate do not meet the requirements set out in the Arbitration Law. Because Indonesia does not acknowledge decisions of foreign courts, theoretically they could enforce an international arbitral award which was set aside by the court in the seat of arbitration. This paper introduces the legal system and cases of recognition and enforcement of foreign arbitration awards in ASEAN, especially Malaysia, Singapore, and Indonesia. Secondly, by comparing their law and cases, the paper emphasized the international suitability and global fitness in involved in recognition and enforcement of foreign arbitration awards.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.13
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• pp.131-149
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• 2000

In connection with international commercial arbitration the need to seek interim relief is generally recognized. Interim reliefs address the requirements of a party for immediate and temporary protection of rights or property pending a decision on the merits by the arbitral tribunal. The most common forms of interim relief are attachments and injunctions. If the arbitral tribunal has not yet been appointed, an application for interim relief must usually be addressed to the local courts at the place of commercial arbitration. If the arbitral tribunal has been appointed, the application for interim relief is first made to the arbitral tribunal. Interim relief by the arbitral tribunal is in the form of a direction to the parties. Since the arbitral tribunal has no enforcement power, it may be necessary to have a arbitral tribunal's direction confirmed by a local court which can enforce its order. The New York Convention does not provide for interim reliefs. The question is whether Article II(3) of the New York Convention that the court "shall, at the request of one of the parties, refer the parties to arbitration" denies jurisdiction to courts to grant interim reliefs in international commercial arbitration. Some cases have indicated that the U. S. court have no power to grant interim relief. Other cases have indicated that the U. S. courts do have the power to grant interim relief. It is unlikely that a U. S. court will order interim relief in relation to an commercial arbitration in a foreign country. Article 26 of the UNCITRAL Arbitration Rules provides with respect to interim measures of protection. Section 1 of Article 26 of UNCITRAL Arbitration Rules provides that the arbitral tribunal may take any interim measures it deems necessary in respect of the subject matter of the dispute, including measures for the conservation of the goods forming the subject matter in dispute. This article gives the arbitral tribunal the broadest authority, not limited to safeguarding property. Article 17 of the UNCITRAL Model Law on International Commercial Arbitration provides that the arbitral tribunal may order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject matter of the dispute. It may be noted that the article does not deal with enforcement of such measures. The International Chamber of Commerce Rules of Conciliation and Arbitration do not expressly empower the arbitral tribunal to grant interim reliefs. However, Article 8.5 of the ICC Rules of Conciliation and Arbitration provides that the parties shall be at liberty to apply to any competent judicial authority for interim measures. In conclusion, the power of the arbitral tribunal to provide interim reliefs is generally recognized in the arbitration rules of arbitral institutions. However, the arbitral tribunal's authority is limited by its lack of enforcement mechanisms. It is generally recognized that the local courts have power to grant interim reliefs in aid of an commercial arbitration. However, local courts are reluctant to grant interim reliefs if that decision requires an adjudication of issues within the special competence of the arbitral tribunal.

• The Korean Journal of Air & Space Law and Policy
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• v.24 no.2
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• pp.235-270
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• 2009

This Article examines what is contemplated by the term "accident," what is meant by "bodily injury," and what damages are recoverable under Article 17 of both the Warsaw Convention of 1929 and the Montreal Convention of 1999. It examines differences in the jurisprudence of the US Supreme Court, the UK House of Lords, and the Australian High Court in interpreting these terms, and the problems posed by these different interpretations in achieving the uniformity of international aviation liability law contemplated by the Warsaw and Montreal Conventions.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.33-58
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• 2015

Arbitration clauses or institutional arbitration rules rarely, if ever, specify the law applicable to the arbitration agreement. A wide range of laws may thus govern this question, such as the law at the place of arbitration, the law where the agreement or the award is enforced or the law of the main contract between the parties. It is also conceivable that international uniform law or soft law may play a role. Tribunals and courts seized with this question must consequently decide which of these various laws shall apply to verify the existence and validity of the arbitration agreement. This paper picks up on this controversially debated conflict of laws issue. At times, this debate is characterized by a strong divide between arbitration and international trade law practitioners. But are the different approaches really leading to diverging results in arbitral practice?

• Journal of the Korean Society of Clothing and Textiles
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• v.33 no.5
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• pp.732-740
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• 2009

The purpose of this study is to discuss Joseon dynastyis first perspective on the Western-style Court Costume which was newly introduced to Joseon through the problems receiving the credential that Japan had sent in new style. For this study, the records of Joseon and Japan at that period have been analyzed. The followings are the results of this research; First, a critical argument on the Western-style Court Costume occurred just before the Port Opening because whether wearing a western costume was the key factor in Joseon dynastyis receiving the credential that Japan had send in new style. Second, Japan received western costume as its domestic courtesy system by establishing the Court Costume of Civil servants in 1872 and consequently Japan established new ceremony procedure of western-style bow in 1875. Third, Joseon dynasty officially opposed to the Western-style Court Costume when Japan sent the credential, because the western costume selected by Japan had beenregarded as that of western barbarian at that time in Joseon. Accordingly, it seems reasonable that before the introduction of western costume into Joseon dynasty, an open-door policy for the West had been a prior settlement for Joseon dynasty regardless of the details of Western-style Court Costume. And also, the pride of civilization of Joseon dynasty, which has been used to express Joseon dynastyis identity as Joseon-centrism, had to be converted before the open-door policy. Ultimately, it could be inferred that the reception of the Western-style Court Costume had been raised as the political and diplomatic problems in the circumstances when the submissive relationship in the traditional Eastern- Asia had been forced to be converted to modern sovereign international relationship.

• Journal of Arbitration Studies
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• v.27 no.1
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• pp.37-57
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• 2017

An arbitrator in Pakistan is required to file an arbitral award in a civil court of competent jurisdiction for its recognition and enforcement if an arbitral award is domestic or before the concerned High Court if the arbitral award is international. The court of law is required to issue a decree upon submitted arbitral award if an interested party do not apply for modification or remission of an arbitral award and do not challenge it for setting it aside or for revocation of its recognition and enforcement within a prescribed time limit. The challenging process of an arbitral award can be started by the aggrieved party of an arbitration agreement at the seat of arbitration or at the place where recognition and enforcement of an arbitral award is sought. The aggrieved party to an arbitration agreement is required to challenge an arbitral award within a prescribed time limit if contracting parties have not excluded the right to challenge an arbitral award. Limitation for challenging an arbitral award in Pakistan is 30 days under article 158 of the Limitation Act 1908, starting from the date of service of notice of filling of an arbitral award before the court of law. Generally, 90 days are given for an appeal against decision of the civil court of law under section 96 of the Code of Civil Procedure 1908, it is therefore highly recommended that challenging time of an arbitral award should be increased from 30 to 90 days.

• Korea Trade Review
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• v.47 no.5
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• pp.129-145
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• 2022

Recently, Korean customs authorities have attempted to impose customs duties on the warranty charges paid by Korean subsidiaries ("the taxpayers") of multinational corporations to their overseas headquarters, or their affiliates, as indirect payment of the price actually paid or payable for imported goods and services, and the taxpayers' complaints have been steadily increasing. The key issue of Korean Supreme Court decision, 2018Du56619, revolves around opposing interpretations of the Korea Customs Act and the WTO's Customs Valuation Agreement in determining who is responsible for paying duties levied on warranty charges. The Supreme Court's ruling was consistent with its previous interpretations of the WTO agreement on customs valuations. The Supreme Court ruled in favor of the plaintiff, a Korean subsidiary, stating that the overseas corporate headquarters' payments of warranty charges to Korean dealers are made on behalf of the Korean subsidiary, which is ultimately responsible for covering warranty charges. Thus, the Korean subsidiary's settlement of the warranty charges to their Korean dealers through the overseas headquarters is effectively the same as a direct payment to the dealers. Therefore, the Korean subsidiary performed warranty services on its liability and account. As such, the court ruled that warranty charges should not include tariffs on the indirect payment for warranty services in such cases. This paper presents the comparative legal implications for the warranty charge clauses in the WTO agreement and the Korean Customs Act and analyzes the Supreme Court's decisions.

• Journal of Arbitration Studies
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• v.6 no.1
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• pp.53-69
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• 1996

• Journal of Korea Port Economic Association
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• v.29 no.2
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• pp.255-275
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• 2013

The purpose of the study is to examine compliance criteria for documents of the Letter of Credit(L/C) by the Korean Supreme Court in practical use. The judgement criteria of the court in documents' examination is supported by the doctrine of strict compliance. And, in examination of documents by the Supreme Court, the difference between documents presented and the credit should be followed by the allowance of international standard banking practices. In this case, the Supreme Court makes a reference for ICC's opinion or decision proposed as the international standard banking practices, or otherwise admit by exploring the practices. However, when documents reviewing by the bankers' auditors, it is very difficult for them to judge in a short time due to the lack of high level of knowledges and insights. As shown the cases of this study, the doctrine of strict compliance of an L/C be relaxed, and most of the recent precedents be ruled by the exception of the doctrine. Because, therefore, it is difficult for to documents reviewers of bank to judge these consistencies, conducting arbitrary document review will be inevitable. As a result, it will be difficult for banks and applicants to ensure the strictness of the documents, and free use of L/Cs in international transactions will be avoided. Finally, the expanded usage of the electronic negotiation system that simplifies the highly difficult compliance criteria to ensure the strictness of documents will be needed, and not only be eradicated the acts of arbitrary documents examination practices, but also be promoted the freely usage of L/Cs.