• 국제학술발표논문집
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• The 9th International Conference on Construction Engineering and Project Management
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• pp.67-73
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• 2022

Construction bid documents contain various errors or discrepancies giving rise to uncertainties. The errors/discrepancies/ambiguities in the bid document, if not identified and clarified before the bid, may cause dispute and conflict between the contracting parties. Given the fact that bid document is a major resource in estimating construction costs, inaccurate information in bid document can result in over/under estimating. Thus, any questions from bidders related to the errors in the bid document should be clarified by employers before bid submission. This study aims to examine the pre-bid queries, i.e., pre-bid request for information (RFI), from state DoTs of the United States to investigate error types most frequently encountered in bid documents. For the study, around 200 pre-bids RFI were collected from state DoTs and were classified into several error types (e.g., coordination error, errors in drawings). The analysis of the data showed that errors in bill of quantities is the most frequent error in the bid documents followed by errors in drawing. The study findings addressed uncertainty types in construction bid documents that should be checked during a bid process, and, in a broader sense, it will contribute to advancing the construction management body of knowledge by clarifying and classifying bid risk factors at an early stage of construction projects.

• 한국중재학회지:중재연구
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• 제17권1호
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• pp.57-75
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• 2007

Ever since franchising emerged in the industry of distribution, it has been growing explosively in the U.S.A. and all other countries as well. It is a method of expanding a business by licensing independent businessman to sell the franchiser's products and/or services or to follow a format and trade style created by the franchiser using the franchiser's trade marks and trade names. Franchising is a form of business that touches upon many different areas of law including, but not limited to, general contract law, general principles of commercial law, law of intellectual property, competition law, fair trade practices law and other industry specific laws e.g., the Fair Practices in Franchising Act in Korea. Arbitration is a long established, legally recognized procedure for submitting disputes to an outside person(s), mutually selected by the parties, for a final and binding decision. Despite its merits as an alternative dispute resolution, it has been criticized, on the other hand, particularly by franchisees' attorneys on the ground that even though it is required to protect the franchisees against the enforcement of pre-dispute arbitration agreements because of the franchisees' paucity of bargaining power vis-a-vis the franchiser, arbitration cannot afford it. Until recently, however, little has been written about the legal issues pertaining to franchise agreement and arbitration clause contained therein in Korea. This treatise reviews the cases and arguments in relation to the subject especially of the U.S.A., which have been accumulated for decades. The issues addressed herein are the pre-emption by the FAA, the disputes to be arbitrated, the selection and qualification of arbitrators, the place of arbitration hearings and the evidentiary rules applicable, the expenses of arbitration, theory of fiduciary duty and the like, all of which are relevant to franchise agreement.

• 무역상무연구
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• 제77권
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• pp.69-89
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• 2018

The United States of America is one of the most favoring countries in which mandatory pre-arbitration clauses in the form of adhesion contract have been widely recognized and supported by courts and the Federal Arbitration Act. However, after the financial crisis in 2008 and the National Arbitration Forum scandal in 2009, in enacting the Dodd-Frank Wall Street Reform and Consumer Protection Act ('Dodd-Frank Act'), Section 1028(a) of the Act requires the newly created Consumer Financial Protection Bureau (CFPB) to provide Congress with a report on "the use of agreements providing for arbitration of any future dispute between covered persons and consumers". Section 1028(b) also grants the CFPB the authority to "prohibit or impose conditions or limitations on the use of an agreement between a covered person and a consumer for a consumer financial product or service providing for arbitration of any future dispute between the parties, if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers." Pursuant to the Dodd-Frank Act, the CFPB issued a report entitled "2015 Arbitration Study: Report to Congress 2015 (Report)" in March 2015. This paper examines some major legal issues of the Report and makes a few recommendations for Korean financial institutions which entered into the U.S. financial market or has a plan to do so in the near future.

• 한국건설관리학회:학술대회논문집
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• 한국건설관리학회 2004년도 제5회 정기학술발표대회 논문집
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• pp.629-633
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• 2004

근래의 국내 건설 산업은 IMF 이후로 악화된 수주여건과 발주자와 시공자의 입장 차이 등으로 인한 클레임과 분쟁이 늘어나고 있다. 이에 본 연구는 이들의 원활한 해결을 위한 방안과 전략 연구의 기초연구로 수행되었으며, 이를 위한 방법론으로 해외의 FIDIC, AIA, ECC 등의 계약문서와 국내 공사계약 일반조건과 서울특별시 공사계약 특수조건의 클레임과 분쟁관련 조항에 대한 벤치마킹을 수행하였다. 연구 결과, 국내의 계약 문건 상의 클레임과 분쟁관린 조항이 해외의 사례들과 비교해 클레임 및 분쟁의 정의, 제기와 해결절차 등의 명확한 제시 부분이 부족한 것으로 나타나 개선이 필요한 것으로 나타났다.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.157-179
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• 2004

Currently major countries, including the USA, have developed and contrived to activate ADR(Alternative Dispute Resolution) in order to both choose effective means for dispute resolution and establish the reformation of the judicial system; thus meeting people's revamped expectations due to the rapid increase of, and diversification in, civil disputes. This is why there has been some haste in many countries to organize systems for this, so called, 'the Fundamental ADR Act' which regulates the essential structure to accelerate the use of ADR and strengthen the links with trial procedures. For example, in 1999 Germany revised it Civil Procedure Act, to allow for a pre-conciliation process in cases involving only small sums of money. Whilst, with regard to the Civil Procedure Act in France, new regulations have been introduced with regard to actions before either a suit or return to conciliation. In the United Kingdom, as far back as 1988, additions to the legal structure allowed for expansion of regulations applying to ADR. By 1999 the new ADR regulations were part of the legal structure of the UK Civil Procedure Act. The USA passed the federal law for ADR in 1998. Since then the world has tried to enact this model in UNCITRAL on international conciliation. When we consider this recent trend by the world's major countries, it is desirable that the fundamental law on ADR should be enacted in Korea also. This paper traces the object, and the regulatory content required, for the fundamental ADR law to be enacted in Korea's future. Firstly, the purpose of the fundamental ADR law is limited only to the private sector, including administrative and excluding judicial sector and arbitration, because in Korea the Judicial Conciliation of the Civil Disputes Act, the Family Disputes Act and the Arbitration Act already exist. Secondly I will I examine the regulatory content of the basic ADR Act, dividing it into: 1)regulations on the basic ideology of ADR, 2)those on the transition to trial procedures of ADR, and 3)those on the transition to ADR from trial procedures. In addition I will research the regulatory limitations of ADR.

• 한국중재학회지:중재연구
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• 제21권1호
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• pp.239-257
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• 2011

This article examines the requirements of Article 37 of the ICDR International Arbitration Rules and issues that could arise if a party petitions a U.S. Federal Court to enforce an emergency arbitrator's Article 37 decision to grant pre-arbitration provisional relief. On May 1, 2006, ICDR introduced a new procedure for the granting of emergency arbitral relief under its ICDR Rules. The procedure enables a party to apply for emergency interim relief before the appointment of an arbitrator or tribunal to adjudicate the merits of the dispute. Instead, the application for emergency relief is considered by an emergency arbitrator appointed by the ICDR. In short, the ICDR has quickly appointed emergency arbitrator and resolved a challenge to an appointment within 36 hours. In addition, the emergency decisions have been issued within just a couple of weeks. In particular, we looked at what would happen after Article 37 emergency relief is granted. Based on my examination of U.S. cases on the enforceability of interim awards and orders, We conclude that U.S. courts would enforce Article 37 interim measures, whether they are characterized by the emergency arbitrator as an interim order or award. Where the situation warrants, arbitration executives should embrace and use emergency relief procedure of ICDR Rules.

• 국제학술발표논문집
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• The 2th International Conference on Construction Engineering and Project Management
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• pp.160-168
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• 2007

Conflicts of interest and independent agenda of the parties brought together for implementation of a construction project often leads to dispute in Contract and claim situations. Construction Industry is notorious for claim that is managed on its arising and there lacks an endeavor to minimize the breeding grounds through efficient planning and alignment to purpose, of all contract-documents. There failure of a concerted effort entails wastage of resources, delayed completion of facilities and stained relationships of parties when collide in mistrust in contract to win over the other. There needs a focus on the claim breeding issue and establish an effective mechanism to deal with disputes in urgency. Claim occurs mostly during the construction phase. But the seeds of claim and nutrients essential for development are contained in the contract documentation and the information supplied or not in pre-contract phase. Opportunity to prevent nutrients for seed of Claim comes to an end once tender-documents are finalized, the contract is awarded and established or not a mechanism for dealing with claim situation. The processes presented here would help in minimizing the breeding grounds and emergence of disputes during progression of works and dealing with eventualities in forceful manners for finding a resolution most effectively in relevant time.

• 대한전기학회:학술대회논문집
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• 대한전기학회 2006년도 제37회 하계학술대회 논문집 A
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• pp.388-389
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• 2006

Systematic studies on the dispatch scheduling algorithm and related constraints can enhance the effectiveness of electricity market operation. Moreover, since various decision-making matters connected to dispatch schedule in competitive electricity market directly affect the market participants' profit, the dispatch scheduling procedure should be reasonable and systematic to convince them. Therefore, to prevent a dispute among the participants, these studies are indispensible requisites for the effective electricity market operation. In this paper, we develop unconstrained/constrained dispatch schedule algorithm applicable to Korean wholesale electricity market.

• 한국중재학회지:중재연구
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• 제29권2호
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• pp.239-282
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• 2019

The importance of ADR(Alternative Dispute Resolution), which has the advantage of expertise, speed and neutrality due to the increase of arbitration cases due to domestic and foreign construction disputes, has emerged. Therefore, in order for the nation's arbitration system and the arbitration Organization to jump into the ranks of advanced international mediators, it is necessary to research the characteristics and advantages of these arbitration Organization through a study of prior domestic and foreign research and operation of international arbitration Organization. As a problem, First, education for the efficient promotion of arbitrators (compulsory education, maintenance education, specialized education, seminars, etc.). second, The effectiveness of arbitration in resolving construction disputes (hearing methods, composition of the tribunal, and speed). third, The issue of flexibility and diversity of arbitration solutions (the real problem of methodologies such as mediation and arbitration) needs to be drawn on the Arbitration laws and practical problems, such as laws, rules and guidelines. Therefore, Identify the problems presented in the preceding literature and diagnosis of the defects and problems of the KCAB by drawing features and benefits from the arbitration system operated by the international arbitration Institution. As an improvement, the results of an empirical analysis are derived for "arbitrator" simultaneously through a recognition survey. As a method of improvement, First, as an optimal combination of arbitration hearing and judgment in the settlement of construction disputes,(to improve speed). (1) A plan to improve the composition of the audit department according to the complexity, specificity, and magnification of the arbitration cases - (1)Methods to cope with the increased role of the non-lawyer(Specialist, technical expert). (2)Securing technical mediators for each specialized expert according to the large and special corporation arbitration cases. (2) Improving the method of writing by area of the arbitration guidelines, second, Introduction of the intensive hearing system for psychological efficiency and the institutional improvement plan (1) Problems of optimizing the arbitration decision hearing procedure and resolution of arbitration, and (2) Problems of the management of technical arbitrators of arbitration tribunals. (1)A plan to expand hearing work of technical arbitrator(Review on the introduction of the Assistant System as a member of the arbitration tribunals). (2)Improved use of alternative appraisers by tribunals(cost analysis and utilization of the specialized institution for calculating construction costs), Direct management of technical arbitrators : A Study on the Improvement of the Assessment Reliability of the Appraisal and the Appraisal Period. third, Improvement of expert committee system and new method, (1) Creating a non-executive technical committee : Special technology affairs, etc.(Major, supports pre-qualification of special events and coordinating work between parties). (2) Expanding the standing committee.(Added expert technicians : important, special, large affairs / pre-consultations, pre-coordination and mediation-arbitration). This has been shown to be an improvement. In addition, institutional differentiation to enhance the flexibility and diversity of arbitration. In addition, as an institutional differentiation to enhance the flexibility and diversity of arbitration, First, The options for "Med-Arb", "Arb-Med" and "Arb-Med-Arb" are selected. second, By revising the Agreement Act [Article 28, 2 (Agreement on Dispute Resolution)], which is to be amended by the National Parties, the revision of the arbitration settlement clause under the Act, to expand the method to resolve arbitration. third, 2017.6.28. Measures to strengthen the status role and activities of expert technical arbitrators under enforcement, such as the Act on Promotion of Interestments Industry and the Information of Enforcement Decree. Fourth, a measure to increase the role of expert technical Arbitrators by enacting laws on the promotion of the arbitration industry is needed. Especially, the establishment of the Act on Promotion of Intermediation Industry should be established as an international arbitration agency for the arbitration system. Therefore, it proposes a study of improvement and differentiation measures in the details and a policy, legal and institutional improvement and legislation.

• 무역상무연구
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• 제61권
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• pp.93-111
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• 2014

In this article, I have reviewed the validity of the Retla Clauses in bills of lading. In Tokio Marine(1970), US courts have permitted carriers to include Retla Clauses in their bills of lading that essentially disclaim all responsibility for the required statement. Simon J in The Saga Explorer(2012) disagreed with the decision of no representation in Tokio Marine and held that the statement with the Retla Clauses made on the bills of lading as to the cargo's apparent condition was a fraudulent misrepresentation. Simon J also requested a strong carriers' honest conduct. However, because the shippers always request the clean bill of lading for trade purpose and never call for a substitute bill of lading showing the true condition of goods, carriers will inevitably continue to clause bills of lading if they have no other better way of protecting themselves in the situation of Tokio Marine or The Saga Explorer. For the present, the decision of misrepresentation in The Saga Explorer might be helpless to change the position of the assignees of the bills of lading. And it seems that the debate on the validity of the Retla Clauses in bills of lading will be continued for the time being. In these circumstances, if the buyers hope to void the potential dispute, they may have a special agreement in the sale of goods contract, for example, requiring a pre-shipment inspection of the goods so as to know the actual condition of the goods on shipment.