• Journal of Arbitration Studies
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• v.16 no.1
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• pp.3-44
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• 2006

Arbitration, which involves a final determination of disputes, has elements of the judicial process. Although an alternative to formal court litigation, it does not replace it in all aspect, but rather coexists with court procedure as an adjunct and part of administering justice. As the international trade has the basic problems of business managed between the parties of other countries having different laws, customs, cultures, currencies and religions. It has been known that these defects caused the commercial disputes and suspended economic fluence in world economic development through the foreign business. The United Nations launched 'the United Nations Convention on the Enforcement and Recognition of the Foreign Arbitral Awards' in 1958 to give effect to the international commercial arbitration. However, the convention has the limitation in excluding the legal obstacles originated from domestic arbitration systems of every states. As the result, the UN succeeded in making world wide arbitration law named 'The UN Model Law on International Commercial Arbitration' in 1983 and recommended all member countries to accept it to revise their domestic arbitration laws thereafter. Korea revised national arbitration law accepting 100% of the model law in 2000. In this respect korea became to have the international dispute settlement system. Korea will be able to settle more business disputes arisen from the international trade and enjoy the world credibility through the new arbitration system.

• Journal of Arbitration Studies
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• v.31 no.2
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• pp.23-46
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• 2021

Sports disputes have specific characteristics compared to disputes that arise in the field of commerce. One particularity is the judicial system in which the CAS plays a key role as the International Supreme Court for sports-related matters. The CAS Code applies whenever the parties agree to submit a sports-related dispute to the CAS(Art. R27). Once the parties to the arbitration agreement have decided that the CAS Code should govern their proceedings. The parties' autonomy is, however, limited to the provisions of the CAS Code that provide for such a corresponding autonomy. The application of the mandatory rules contained in the CAS Code cannot be excluded. In CAS appeals arbitration proceedings, the Panel shall decide the dispute according to the applicable sports regulations and, subsidiarily, to the rules of law chosen by the parties(Art. R58). In international sports disputes, the uniform application and interpretation of the relevant regulations are essential. Therefore, Art. R58 should be applied as a mandatory rule without any changes. Regulations of the sports organizations are to be qualified as valid rules of law. CAS panels may also apply the so-called lex sportiva to the merits before considering statutory provisions of national jurisdictions. In this way, the specificities in (international) sports disputes can be taken into account without the need to further examine the application of national legal standards.

• Korea Trade Review
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• v.44 no.6
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• pp.285-302
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• 2019

Good faith is difficult to define due to the facts that there is not an objective and concrete concept of good faith, and good faith in contracts for the international sale of goods is a principle that parties to the contract must act with sincerity as members of a social community. The Korean Supreme Court shall pay attention to setting the applicable standards that can be universally applied to good faith based on the self-established criteria. Through such effort, it is possible not only to realize the value of concrete validity pursued by the general clause of good faith but also to realize the value of legal stability by assuring the predictability of results when applying good faith. In the modern sense, it can be said that the arbitrary application of general rules rather than the escape and general clauses is a problematic situation in the application of good faith, but this problem can be solved by setting a reasonable standard of good faith. This paper studies good faith in the view of Korean law, international laws, and related cases in contract law. The purpose of this paper is to find the problems and solutions of the practical application of good faith by analyzing the Korean case (2009Da86000), which undermined the legal stability of good faith in Korea.

• Journal of Korea Trade
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• v.24 no.6
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• pp.101-114
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• 2020

Purpose - This paper examines the "Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region" (the Arrangement), which became effective on October 1, 2019, calling on courts of mainland China and Hong Kong for reciprocal commitment in support of court-ordered interim measures in aid of arbitral proceedings. Because the Hong Kong courts have granted interim measures in aid of arbitral proceedings seated in and outside of Hong Kong even prior to the Arrangement becoming effective, this paper focuses on the significance of the Arrangement making Hong Kong the first and only seat outside of mainland China from which parties to arbitral proceedings may successfully obtain interim measures to preserve of assets, properties, and/or evidence from Chinese courts to be enforced in China. Design/methodology - The significance of interim measures in international arbitration and the existing circumstances of interim measures in support of international arbitral proceedings in mainland China and Hong Kong are discussed first in this paper. Due to the confidential nature of arbitral proceedings, while the details of applications for interim measures pursuant to the Arrangement cannot be discussed, in examining the implications of the Arrangement, the relevant and necessary information was made available from the Hong Kong International Arbitration Centre, as it is one of the six qualified arbitral institutions under the Arrangement. Findings - This groundbreaking Arrangement provides a mechanism for parties with China-related matters to more effectively resolve their disputes, the opportunity for Hong Kong to become an unparalleled seat of arbitration, and for mainland China to overcome some of its negative perceptions in international arbitration. Because the Arrangement also allows parties to directly apply for interim measures from mainland Chinese courts, parties with China-related matters should take note of this potential bypassing of the procedural hurdle, which usually requires an arbitral institution to submit such applications in China, and make strategic decisions accordingly as may be appropriate. Originality/value - Because the Arrangement is a recent yet a significant agreement calling on courts of mainland China and Hong Kong for reciprocal commitment in support of court-ordered interim measures in aid of arbitral proceedings, this study will provide useful guidance for parties with China-related matters all over the world, especially in light of China's rapid economic growth and extensive and prominent trade relationships in today's world. Parties who foresee the need for interim measures from mainland Chinese courts should designate Hong Kong as their seat of arbitration and select one of the six qualified arbitral institutions under the Arrangement to administer their arbitral proceedings in order to benefit from the Arrangement.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.21-39
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• 2010

The role of the arbitrator is so significant in the international arbitration that its success or failure may depend on the credibility of the arbitrator. It has long been understood that the ideal arbitrators are should be independent, unbiased, and have the requisite legal and/or technical expertise and experience for the case at hand. Arbitrators may be selected either by agreement of the parties, by appointment by arbitral institution or by a national court. This article outlines the main method of selecting the members of the tribunal plus some of the benefits and burdens of each method. One of the most common methods of appointing arbitrators is by agreement of the parties. This approach is very attractive because it allows parties to submit a their dispute to judges of their own choice, that they also agree on. Most arbitral institutions have a panel of arbitrators and their arbitral rules. So, if disputants agree on a specific arbitral institution, they can settle their disputes by arbitration easily and quickly. If disputants are unable to agree on arbitrator(s) or a specific arbitral institution, method of selecting arbitrator(s) by national court must be employed.

• Journal of Arbitration Studies
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• v.27 no.1
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• pp.107-129
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• 2017

Arbitration has grown a unique resolving method for international commercial disputes. However, it has considered a similar court process, such as interim relief, during arbitration proceedings. Further, it would be asked for urgent measures before the arbitrators are constituted in the proceedings. In this case, the disputing party has to apply in the court. This is an unattractive factor in international arbitration; therefore, some institutions are trying to reform such an inconvenient system by adopting the emergency arbitrator. The purpose of this study is to look into ways of utilizing the emergency arbitrator for effective dispute resolution in shipbuilding and shipping industries. The emergency arbitrator needs to solve problems such as making a decision on leaving cargos in the ship, matters involving a ship arrest, or issues regarding vessels under construction. In order to utilize the emergency arbitrator system, it needs to make a close partnership with related institutions, prepare Korean-style standard shipbuilding and shipping contracts, and provide training programs for new emergency arbitrators and staff of institutions. Next, the arbitration institution has to have a great working relationship with a court. Finally, it should try to implement a new system, such as on-line service, for the procedures of the emergency arbitrator.

• Journal of Arbitration Studies
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• v.30 no.3
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• pp.67-94
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• 2020

This paper examines the current enforcement regime of Korea and provides an overview of the same with focus on the changes before and after the 2016 revision of the Korean Arbitration Act. It briefly studies the pro-arbitration bias of the New York Convention, as well as the Korean judiciary's stance on the enforcement of foreign arbitral awards. Some of the substantial issues discussed in the paper include the major procedural changes brought about by the 2016 amendment with respect to the enforcement of arbitral awards. The paper also discusses the rare instances where the Korean judiciary refused to recognize or enforce an arbitral award, and the reasoning behind the refusal. The paper discusses and analyzes four court judgments that reflect the Korean judiciary's position on the enforcement of foreign and domestic arbitral awards in Korea. It focuses on the NDS v. KT Skylife case, where the court of first instance refused the enforcement on grounds that the relief granted by the arbitral tribunal was not specific enough for enforcement. Ultimately, the appellate court, although agreeing on the specificity requirement, reversed the ruling and granted an enforcement judgment on grounds that the application for enforcement had the legal interest to request an enforcement judgment.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.42
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• pp.67-85
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• 2009

In English Law it seems that it is essential to apply the principle of equilibrium in the contract, however, it does not seemed to apply as the general rule of the principle of contract. Especially it seems that English Court didn't pay attention to the principle of equilibrium in 18th century. If one of the party do not appeal the equilibrium of the contract, it does not make any difference even today. However the Court may cancel or withdraw the construction of contract between the parties where the principle of equilibrium is damaged by fundamental problems like just-price. In French Law it seems that they have more wide definition of the principle of equilibrium. The French Court may consider that the application of good faith is the performance of condition of the contract between the parties and has no power to relieve of one party of his expressed obligations or warranty. In German Law, it seems that the principle of good faith is fundamental to take into account interest of the parties. They may agree to supply information or not to interfere with a commercial agent regarding performance and maintenance of the contract.

• Journal of Arbitration Studies
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• v.28 no.1
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• pp.43-75
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• 2018

The Court of Arbitration for Sport (CAS) was created to focus on the procedural complexity in the resolution of sports-related disputes, confidentiality, the matter of expenses, and the necessity of prompt settlement in the field of international sports. The CAS had originally launched as one of bodies of International Olympic Committee (IOC), but later it became properly operational as an independent organization to facilitate sports-related disputes when the International Council of Arbitration for Sport (ICAS), which came into force in accordance with the Paris Agreement in 1984 and has acted in place of IOC, took responsibility for the administration and financing of the CAS. The CAS is composed of four divisions, the Ordinary Arbitration Division and the Appeals Arbitration Division, the Ad hoc Division created later in 1996 and the CAS Anti-Doping Division (CAS ADD) established as from 2016 only to conduct proceedings and to issue decisions on an alleged anti-doping rule violation, and two (Sydney and New York) permanent decentralized offices. The head office of the CAS is Lausanne, Switzerland. Since CAS ADD was established, CAS Ad hoc Division has had jurisdiction over the appeal case against a decision pronounced by the IOC, an NOC, an international Federation or an Organizing Committee for the Olympic Games. Although there are so many virtues of CAS as a resolution authority for sports-related disputes in terms of its organization, arbitration rules and procedures, it is also true that the CAS has not been showing the consistency. The CAS should overcome these issues through much more advanced system and its instant and fair decisions.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.59-90
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• 2015

Since 1855, the federal courts of the United States have been empowered to assist in the gathering of evidence for use before foreign tribunals. Today, the source of that authority is 28 U.S.C. ${\S}1782$ which permits the courts to order a person "to give [ ] testimony... or to produce a document ... for use in a proceeding in a foreign or international tribunal${\cdots}$ ." It was generally assumed, until the United States Supreme Court's decision of Intel Corp. v. Advanced Micro Devices, Inc. in 2004, that arbitration tribunals were not "foreign tribunals" for purposes of 28 U.S.C. ${\S}1782$. While the issue in Intel did not involve an arbitration tribunal, a statement by the Supreme Court in dicta has called into question the exact parameters of the words "foreign tribunal," resulting in a split of opinion among the federal courts of the United States. This article explores the legislative history of 28 U.S.C. ${\S}1782$, examines the United States Supreme Court decision in Intel, and discusses the split among the courts of the United States regarding the interpretation of "foreign tribunal." The article further surveys emerging issues: is an arbitration tribunal in a case involving foreign parties and seated in the United States a "foreign tribunal"; does agreeing to the use of the IBA Rules on the Taking of Evidence in International Arbitration circumscribe the use of 28 U.S.C. ${\S}1782$; can a party be ordered to produce documents located outside the United States; and is there a role for judicial estoppel in determining whether an application pursuant to 28 U.S.C. ${\S}1782$ should be granted?