• Journal of Arbitration Studies
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• v.24 no.2
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• pp.3-31
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• 2014

As all aspects of international activity have kept growing in good transaction, transnational investments, joint ventures, and the licensing of intellectual property, it is inevitable for disputes to increase across national frontiers. International disputes can be settled by arbitration and ADR. In the situation presented in the paper, any dispute shall be finalized by arbitration and conciliation in the Gaeseong Industrial Complex. Inter-Korean Commercial Arbitration in the Gaeseong Industrial Complex has become the principal method of resolving disputes in trade, commerce, and investment in accordance with the "Agreement on South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). But the follow-up measures of the said agreements have not been fulfilled. Some prerequisite measures of the Inter-Korean commercial arbitration must be satisfied. In order to proceed with arbitration and conciliation in the Gaeseong Industrial Complex, we need to ask the following: Does the status of an arbitrational matter? Should an agreement to arbitrate contain a choice of law clause? Should one provide for one arbitrator or three? How should the arbitrators be selected? What is the relation between party-appointed arbitrators and the presiding arbitrator (neutral arbitrator)? Do arbitrators compromise more than the litigation? Can conciliation be combined with arbitration? To execute the enactment of arbitration regulations, the contents of the Arbitration Rules of the Korean Commercial Arbitration Board (South) and the Korea International Trade Arbitration Committee (North), together with the Korean Arbitration Act and External Arbitration Act of North Korea and the UNCITRAL Model Arbitration Law and UNCITRAL l Arbitration Rules are reflected in the Rules. There are many aspects of the Inter-Korean Commercial Arbitration. It is essential to understand key elements; namely, the arbitration agreement, appointment of arbitrator, arbitral proceeding and arbitral award, and enforcement and setting aside of arbitral award. This research deals with five chapters. Chapter 1 provides the introduction. Chapter 2 deals with trade volume between South and North Korea and the kinds of dispute in Gaeseong. Chapter 3 addresses contents and follow-up measures of the agreement on the "South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). Chapter 4 features the problems and tasks of the pertinent agreements. Chapter 5 gives the conclusion. Enabling parties to find an amicable solution to the dispute in the Gaeseong Industrial Complex can lead to a useful and appropriate framework either through direct negotiation or by resorting to conciliation or mediation in accordance with pertinent agreements and follow-up measures contained in the agreements.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.55-77
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• 2008

The purpose of this paper is to make a research on the administration and practical problems of the arbitral organization called "uth-North Commercial Arbitration Commission". The Arbitration Commission shall be set up under the South-North Agreements officially called "reement on Settlement Procedure of Commercial Dispute" and "reement on Organization and Administration of the South-North Arbitration Commission" between the South and the North of Korea. A variety means of dispute settlement including friendly consultations, conciliation and arbitration called Alternative Dispute Resolution(ADR) will be used frequently and institutionally to settle commercial disputes and conflicts arising from economic transactions between the South and the North of Korea. Under the circumstances, it is becoming a problem of vital importance how to operate the Arbitration Commission for the prompt and effective settlement of the South-North commercial disputes. First of all, the South and the North of Korea should recognize the availability of prompt and effective means of dispute resolution such as arbitration and conciliation to be made by the Arbitration Commission would promote the orderly growth and encouragement of th South-North trade and investment, for which the following measures should be taken as soon as possible : 1. Enactment of the South-North Arbitration Rules. 2. Designation of the arbitral institution by North-Korean side. In this connection, the Korean Commercial Arbitration Board(KCAB) was already designated officially as the arbitral organization of South Korean side as of April 17, 2007. 3. Arbitration shall be held in the place where the respondent has his domicile, in case that both parties fail to agree as to the place of arbitration. 4. Permission of a third country arbitration in case that both parties agree to do so. 5. To become a member country of international arbitration agreements including the New York Convention.

• Journal of Arbitration Studies
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• v.24 no.3
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• pp.105-124
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• 2014

There is a growing interest in resolving intellectual property rights disputes through arbitration rather than in state courts. The internationalization of commercial relations, one of the most significant drivers of the growth of international arbitration in general, encompasses intellectual property relationships as well. In 2014, the World Intellectual Property Organization Arbitration and Mediation Center revised its arbitration rules. The revision is part of a wave of recent updates of institutional arbitral rules. After briefly introducing the WIPO Center as an arbitral institution, this article assesses the features of the WIPO Rules that make them suitable for the particular challenges of IP-related disputes. A second part reviews the salient new aspects of the WIPO Rules from a comparative perspective.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.3-49
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• 2006

The purpose of this paper is to make research on the settlement mechanism of the commercial disputes between the South and the North of Korea. Also, this paper is to make research on the south-north Korea's cooperative tasks to promote the disputes settlement, including the operation and management of the South-North Arbitration Commission as well as the enactment of the South-North Arbitration Rules. To realize the spirit of the South-North Joint Declaration of June 15, 2000, the Authorities concerned of the South and the North of Korea have reached an agreement titled 'Agreement on Settlement Procedure of Commercial Disputes' on December of the same year. As the follow-up measures of the said Agreement, the South-North Authorities have signed an another agreement called 'Agreement on Organization and Administration of the South-North Arbitration Commission' on October, 2003, which is becoming vital importance for settlement of the commercial disputes between south and north Korea including the Gaeseong Industrial Complex. Gaeseong, a city surrounded by the North Korean military and a symbol of inter-Korean tensions, is now turning into a peace zone where thousands of North and South Koreans are working side by side. The Gaeseong Industrial Complex project, driven by the logic and economic necessity of cooperation, has been steadily moving forward since the North designated it as a special economic zone and has enacted related laws and regulations for its development. Under the situation, the matter of primary concern is how to organize and conduct the Arbitration Commission for the prompt and effective settlement of the south-north commercial disputes. First of all, the South-North Authorities should recognize that the availability of prompt, effective and economical means of dispute resolution such as arbitration and mediation to be made by the Arbitration Commission would promote the orderly growth and encouragement of the south-north trade and investment. In this connection, the Korean Commercial Arbitration Board(KCAB) should be designated as the arbitral institution of the south Korean side under the Agreement on Organization and Administration of the South-North Arbitration Commission. The KCAB is the only authorized arbitral organization in South Korea to settle all kinds of commercial disputes at home and abroad.

• Journal of Arbitration Studies
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• v.26 no.1
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• pp.3-27
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• 2016

There is a need for disputes in sports to be settled by arbitration rather than a court ruling, taking the unique characteristics of sports into consideration. Arbitration is a form of alternative dispute resolution (ADR). A dispute resolution system is regarded as: an arbitrator is selected by the agreement between the parties, and a binding decision is made, which the parties obey, consequently resulting in a final resolution. To resolve a dispute upon arbitration, there must be an arbitration agreement upon the free will of the parties. In relation to the arbitration agreement, however, there are some cases in which sports organizations have an arbitration clause in the articles of association, regulations or player registration application that call for settling disputes by arbitration. In such cases, the validity of the arbitration agreement may create doubt whether or not this sort of arbitration has been made by mutual agreement. Consequently this is required to be legally examined. The activities of a sports organization are recognized as part of private autonomy, and they include even the rights that establish regulations or rules. Nonetheless, the powers that such sport organizations are able to establish are not allowed without limit. However, sports activities and autonomy shall be protected as themselves. Therefore, if we give priority to arbitration upon the independent arbitrator and fair process by establishing an independent arbitral organization in charge of sports disputes to handle the effective resolution of disputes and protect sports autonomy and ask for a court decision if one party disobeys the arbitration, or the sports arbitration prepositive principle, it seems helpful to resolve the unfairness of compulsory jurisdiction and the clause for sports arbitration and protect the player's right of choice and of claims for trial.

• Journal of Arbitration Studies
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• v.17 no.3
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• pp.31-56
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• 2007

The purpose of this thesis lies on building the foundation for the further activation of trade among the Northeast Asian countries such as South Korea, Japan, China, Russia, and North Korea through an analytical comparison of their arbitration systems. Further activation of trade cannot be reached without previously building safety measures on the negotiation of exports, the control on defective imported merchandise, the returns on investments, and the stable management of businesses. Throughout this thesis an analytical comparison of these five countries' most important areas on arbitration will be carried out. These areas are the arbitration laws and organizations; the structures of the laws; scope of arbitration; form of arbitration agreement, appointment of arbitratiors, place of arbitration, hearing, court assistance in taking evidence, governing law, decision making by panel of arbitrators, form and contents of awards, effective of award, recourse against award, recognition and enforcement of awards. etc. It was found in each of the areas cases to be identical, similar or verydifferent; also, cases unable to arbitrate. This phenomenon was found to occur due to the differences in political and economic systems and perception of arbitration among these countries. Additionally, this thesis points out what should each country do for its integration. It is also suggested the organization of a common arbitration research body to continue the efforts for raising the awareness, building trust, and mutual recognition among the countries to ultimately create a common arbitration system. Lastly, it is a personal will that this thesis will serve as the starting point for in depth researches in each of the presented areas.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.3-46
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• 2004

To realize the spirit of the South-North Joint Declaration of June 15, 2000, the competent authorities of the South and the North of Korea have reached two Agreements to settle commercial disputes as well as to set up an arbitral organization called 'South-North Commercial Arbitration Commission'. The Commission is an institutional organization for settlement of commercial disputes arising from trade and investment between south and north Korea. Under the situation, it is becoming a problem of vital importance how to manage and control the Commission for prompt and effective settlement of south-north commercial disputes. While analyzing the above two Agreements for dispute-settlement mechanism, the author proposes desirable ideas and directions in connection with the Commission as follows: 1. First of all, the Commission should become a central common system for settlement of commercial disputes which meets the demand of capitalistic market economy. 2. The Authorities of south and north Korea should recognize that the availability of prompt, effective and economical means of disputes resolution such as arbitration and conciliation to be made by the Commission would promote the orderly growth and encouragement of south-north trade and investment. 3. The Korean Commercial Arbitration Board(KCAB) should be designated as the Arbitration Commission of South Korea because the KCAB is the only authorized institution in South Korea, statutorily empowered to settle any kind of commercial disputes at home and abroad.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.25-46
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• 2012

China instituted arbitration law on September 1, 1995, after having legislated the law under the UNCITRAL Model Law. However, Chinese arbitration law has some problems related to the effectiveness of its arbitration agreement, unlike the UNCITRAL Model Law. Thus, parties in dispute who want to settle a dispute based on Chinese arbitration law as governing law have more to take into consideration because there could be serious problems related to the effectiveness of the arbitration agreement. Therefore, this paper attempted to analyze the classification of jurisdiction related to the authorization of effectiveness in arbitration agreement of arbitral organization and Chinese, verify the problems, and suggest the solutions. Moreover, the author tried to verify the problems in applying the law related to the authorization of effectiveness in Chinese arbitration agreements and suggest some improvements. This paper also suggests improvements and problems related to the selection of arbitral organizations among several conditions for effective arbitration agreement in Chinese arbitration law. Finally, the author suggests some cautions and countermeasures related to arbitrations agreement for domestic investors and traders dealing with the Chinese.

• Journal of Arbitration Studies
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• v.21 no.3
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• pp.89-114
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• 2011

Environmental disputes not only possess the special characteristics of collectivity and plural value relativity but it also possesses the unique features of difficulty to prove cause and effect as well as the structural maldistribution of evidence and information. Therefore, the positive resolution of an environmental dispute can be brought about more easily with the Alternative Dispute Resolution (ADR) which can take the form of talks, compromises, as well as arbitration or mediation rather than through a trial process. Such being the case, this paper first looks into the problems and effectiveness of the arbitration system of environmental lawsuits and then takes an even closer look at Korea's environmental dispute arbitration system and finally offer some reform methods. In Korea, the environmental dispute arbitration system was implemented in 1991 and has been executed since then. Although this system does have positive features such as the high rate of coming to an agreement between the involved parties but unfortunately, most of the cases rely on decisions based on right and wrong which cannot but be far away from the intentions of the ADR system. It is heavily centered around claims regarding psychological compensation regarding noise and vibrations and the ratio of the actual amount of compensation is comparatively lower than the requested amount. In addition, with the limits in organization and manpower, it leads to a lack of professionalism as well as the problem of low usage with the low awareness rate. As reform measures against the aforementioned problems, this paper suggests the following. First, in order to activate the arbitration process more fully, it proposes aggressive usage of compulsory arbitration as well as submission to arbitration, while at the same time raising ADR professionals to fill in the missing gaps. Secondly, in order to overcome the problem of concentration of related cases, making representative lawsuits of environmental organizations would be a good idea. It also states that in order to make the compensation amount more realistic, it should go out of the across-the-board decision making process and reach a decision about the compensation amount that takes the individual situation's dispute into consideration. In order to boost the professionalism of the environmental dispute arbitration, it is necessary to reform the organization and manpower such as expanding the number of members of full standing, and increasing the professionalism of the examiners. Also, to increase the usage rate of the ADR system, the paper suggests stationing a civilian consultant regarding environment, or activating the compulsory arbitration which is the premise for public participation on the part of the residents.

• Journal of Arbitration Studies
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• v.14 no.1
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• pp.103-132
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• 2004

This paper suggests the establishment of construction arbitration tribunal in The Korean Commercial Arbitration Board or the construction arbitration institution under the Ministry of Construction for effective system of Construction Arbitration. Our conclusion tells that it is desirable to establish construction arbitration institution under the Ministry of Construction upon the result of analyzing some factors such as participation of construction workers, sophistication of construction field. In contrast, it is more desirable to establish the construction arbitration tribunal in The Korean Commercial Arbitration Board when we consider the feasibility, sophistication of ADR, organization, rules, arbitrator availability, internationalization Therefore, our final suggestion is to establish construction arbitration tribunal in The Korean Commercial Arbitration Board for effective system of Construction Arbitration. More detailed are as follows: . Establishment of the committee for resolution of construction disputes consisting of experts and specialists from construction-related institution, union, law firm and universities. 1 The committee manages finance, rules on construction arbitration and arbitrator members. 1 Establishment of intermediation team, construction arbitration team, housing arbitration team, real estate arbitration team under the construction arbitration tribunal . Establishment of a committee of arrangements consisting of experts and specialists from The Korean Association of Arbitration Studies, Korea Arbitrators Association, The Korean Commercial Arbitration Board, The Construction Association of Korea in order to accomplish effective system for construction arbitration.