• 한국중재학회지:중재연구
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• 제32권1호
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• pp.43-69
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• 2022

In the case of the United States, which has the same provision as Article 10 of the Federal Arbitration Act, a contract may be exceptionally validated if the parties have clearly concluded the contract to expand the grounds for vacating awards in an arbitration agreement. It is possible that the parties create the grounds for vacating that is not stipulated in the statue by clear agreement. However, it remains the issues when this contract is valid. If we investigate the grounds for setting aside as discussed in this paper, in cases ① where an arbitrator failed to apply the substantive law expressly designated by the parties without a good reason; ② where there was a serious error in the application of the substantive law; ③ where an arbitrator decided under ex aequo et bono despite the parties explicitly designated the substantive law, the parties may bring an action for annulment of arbitral awards in court according to their agreement to expand the grounds for vacating the awards. It is important enough to change the rights and obligations of the parties for them whether or not the substantive law of the arbitration was applied. With Regard to the contract to expand the grounds for setting aside the awards in arbitration agreement, there are still issues how to handle the case where the parties have not designated the substantive law, and the validity of a contract to expand the grounds for vacating on reasons other than violation of law application, and relations with Article 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, where the misapplication of the law does not stipulated as the grounds for refusal to recognize and enforce the foreign arbitral award, and so on.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.103-122
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• 2004

Recognition and enforcement of the arbitral award play an important role in the settlement of the international commercial disputes. The New York Convention makes it a duty for the courts of signatories to recognize and enforce the foreign arbitral awards not taking the nationality of the party concerned into consideration. Recognition and enforcement of the arbitral award may be refused if the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. The arbitral award has the same force as an irrevocable judgement including effect of excluding further litigation, its execution and formation. But the effect of set aside arbitral award made abroad in arbitral place was denied by France court for the interest of his people. There is no arbitral act but arbitral procedure is regulated by New Code of Civil Procedure in case of France. An appeal against the decision which grants recognition or enforcement is open if the recognition or execution is contrary to international pubic policy in virtue of Art. 1502. Arbitrator may consider compulsory provisions in arbitral place to assure to recognition and enforcement of the arbitral award.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.87-122
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• 1998

This study reports on the Arbitration system in the China International Economic and Trade Arbitration commission (CIETAC) and the International Arbitration problems of Korea and China. The Chines laws including Arbitration laws are influenced by the civil Code system Particulary the German system. China is contracting state of the U N Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958 New York Convention), which became effective in the China April 22, 1987. International Commercial Arbitration is popular in China. CIETAC is the sole International Commercial Arbitration body in China. CIETAC has two sub-commissions, on is shen zhem S E Z and the other in shanghai. The CIETAC rules, are similar to the rules in effect in Countries using a civil Code system. Both an agreement to submit an existing dispute to Arbitration and an Arbitration clause in a contract relating to future disputes are recognizeal as valiad Arbitration agreements. CIETAC has the power to make a decision on disputes concering the validity of the Arbitration agreements, or jurisdiction over a specicific case.

• 한국중재학회지:중재연구
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• 제15권2호
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• pp.197-224
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• 2005

The purpose of this paper is to make research on the party's autonomy principle and the applicable law to the arbitration agreement, the applicable law to the validity of the arbitration agreement, the applicable law to the arbitrability of the arbitration agreement, the applicable law to the contracting ability of the arbitration agreement, and the applicable law to the method of the arbitration agreement. If no choice of law is made by the parties with respect to the arbitration agreement-which is the stand situation-the validity of the agreement may have to decided under its proper law, or under the law of the place of arbitration, or the law of the place of enforcement. If the subject matter is not arbitrable, the arbitration agreement remains without effect. The rules determining arbitrability may differ from one country to another, from one legal system to another. If a party is lacking capacity to enter into an arbitration agreement, the recognition and enforcement of the arbitral award may be refused at the request of the party against whom it is invoked. This principle is laid down in the New Yark Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The validity of an arbitration agreement sometimes also depends on the form in which it is made. Article II. 2 of the New York Convention states that the term 'agreement in writing' shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties of contained in exchange of letters or telegrams.

• 한국중재학회지:중재연구
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• 제16권1호
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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.

• 통상정보연구
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• 제16권5호
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• pp.67-86
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• 2014

상사중재는 문제를 해결하고 사업 파트너간 분쟁에 대한 해결책을 찾는 신속하고 효과적인 방법이다. 상사중재 발전을 위해 이론 뿐 만 아니라 실무차원에서 중재연구의 접근이 필요하다. 본 논문은 파키스탄 국내 중재법과 파키스탄에서 적용되는 국제상사중재제도에 대한 상황과 접근방법 등을 제시하였다. 파키스탄에서 새롭게 정비된 2009년 중재법은 국내중재, 국제상사중재, 외국 중재판정의 집행뿐 만 아니라 국제투자분쟁의 해결에 관한 법률을 통합하는 것을 목표로 한다. 더 나아가 2011년에 파키스탄 투자자의 신뢰를 회복하기 위해 외국인 투자자를 보호할 수 있는 법을 도입하기도 하였다. 본 논문은 파키스탄의 중재법의 과거부터 현재까지 진전된 관계를 설명하고 새로운 법령에 의해 적용된 변경사항을 설명하고 중재계약 및 판정을 다루는 파키스탄 중재 법률, 규칙 및 절차를 실무차원에서 포괄적으로 제시하였다. 잠재시장인 파키스탄관련 통상정보가 부재한 상황에서 한국무역학자들에게 파키스탄 상사중재제도에 관한 실무적 이해를 돕기 위하여 작성되었다.

• 무역학회지
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• 제45권3호
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• pp.147-166
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• 2020

As the volume of trade between Korea and Vietnam increases, the number and amount of commercial disputes between Korean and Vietnamese companies are increasing. In the case of Vietnam, due to differences in the arbitration system and norms due to the socialist state system, foreign companies lack confidence in the settlement of disputes through commercial arbitration in Vietnam. At this point, it is necessary to not only discuss commercial disputes and settlements, but also to closely review and understand Vietnam's commercial dispute settlement system. Therefore, this study examines the current status and characteristics of Vietnam's commercial disputes and analyzes the actual problems of Vietnam Commercial Arbitration System that arise through the arbitral award of the Vietnam International Arbitration Center (VIAC), Vietnam's representative arbitration agency, and precedents on the recognition and enforcement of foreign arbitration awards in Vietnamese courts. In the end, this study seeks to revitalize the Vietnam Commercial Arbitration so that each disputed party may quickly deal with the commercial disputes, and seeks a more smooth solution through commercial arbitration in future trade claims between Korean and Vietnamese companies.

• 한국중재학회지:중재연구
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• 제27권3호
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• pp.95-107
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• 2017

Mongolian government enacted the Foreign Trade Arbitration Law to modernize the practice of commercial arbitration. Nevertheless, the Foreign Trade Arbitration Trade Law fell short on a number of fronts and arbitration itself remained a distant second option to litigation within Mongolia. Law on Arbitration of 2003 aimed to modernize the Mongolian arbitration framework so that it would mirror the UNCITRAL Model Law on International Commercial Arbitration. At the same time, the Law on Arbitration 2003 made a conscious decision to deviate from international norms with respect to certain aspects in order to accommodate for the unique circumstances and characteristics of Mongolia. For example, unlike its UNCITRAL counterpart, the Law on Arbitration of 2003 did not include an exhaustive list of grounds for refusing the recognition and enforcement of arbitral awards. In that sense, the Law on Arbitration of 2003 was a resounding success and a drastic improvement on the Foreign Trade Arbitration Law. These factors convinced the Mongolian government to once again revise its arbitration law. This process, which started in 2008 with the help of foreign law firms and institutions, ultimately culminated in the Law of Arbitration of 2017. The chief objective of the Law of Arbitration of 2017 was to more closely adhere to preexisting international norms on arbitration such as the Model Law on International Commercial Arbitration, and there is no question that Mongolia has succeeded in doing so. This article thus concludes by explaining some of the noteworthy improvements made by the 2017 revisions, and by noting that Mongolia is now equipped with a truly international legal framework for arbitration.

• 한국중재학회지:중재연구
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• 제21권1호
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• pp.259-277
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• 2011

In 2008, North Korea revised its Foreign Economic Arbitration Act. To some extent, the new Act reflected such international standard of arbitration as UNCITRAL Arbitration Rules. In this paper, the said Act will be evaluated, and then cooperation ways of South-North Korea on Inter-Korean Commercial Arbitration will be suggested. In 2007, the Ministry of Unification has designated the Korean Commercial Arbitration Board as Inter-Korean Arbitration Committee and has made efforts to prepare follow-up measures on the two Agreements of Inter-Korean Commercial Arbitration. In 2008 however, the follow-up measures has in fact been suspended. In order to revitalize the Inter-Korean commercial arbitration, some prerequisites must be satisfied. First, Inter-Korean Arbitration Committee for Inter-Korean commercial arbitration should re-open as soon as possible. Second, as North Korea recently shows interest in joining the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards(now so called New York Convention), Governmental Authority of Rep. of Korea should also actively assist and support their joining in New York Convention. Third, both Korean governments should carry out joint study on raising the efficiency of the arbitration system which they will use. Fourth, comparative study on arbitration systems used in both countries should be conducted. Also, it may is very timely to discuss the issue in international arbitration community such as "North-East Asia International Arbitration Conference" or other similar events. In conclusion, continuous study on prevention of commercial disputes between South-North Korea and ways to resolve disputes when they arise should be conducted.

• 한국중재학회지:중재연구
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• 제30권2호
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• pp.91-120
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• 2020

The Scope of Application of North Korea's Foreign Economic Arbitration Act and Foreign Investment Act This article examines whether the Foreign Economic Arbitration Act and the Foreign Investment Act of North Korea apply to South Korean parties or companies. This article analyzes laws and agreements related to economic cooperation between South Korea and North Korea. Furthermore, this article compares and evaluates laws related to foreign investment and enacted in North Korea. Now, North Korea's door is closed due to economic sanctions against it, but it will be opened soon. Thus, this article prepares for the future opening of North Korea's markets. Is there a rule of laws in North Korea or just a ruler? Are there laws in North Korea? North Korea has enacted a number of legislation to attract foreign investors, referring to those Chinese laws. For example, North Korea enacted the Foreigner Investment Act, the Foreigner Company Act, the Foreign Investment Bank Act, the Foreign Economic Arbitration Act, the Foreign Economic Contract Act, the International Trade Act, and the Free Economy and Trade Zone Act, among others. Article 2 (2) of the Foreign Investment Law of North Korea states, "Foreign investors are corporations and individuals from other countries investing in our country." It is interpreted that South Korea is not included in the "other countries" of this definition. According to many mutual agreements signed by South Korea and North Korea, the relationship between the two Koreas is a special relation inside the Korean ethnic group. An arbitration between a South Korean party and a North Korean party has the characteristics of both domestic arbitrations and international arbitrations. If the South Korea and North Korea Commercial Arbitration Commission or the Kaesong Industrial Complex Arbitration Commission is not established, the possibility of arbitration by the Chosun International Trade Arbitration Commission, established under North Korea's Foreign Economic Arbitration Act, should be examined. There have been no cases where the Foreign Economic Arbitration Act is applied to disputes between parties of South Korea and North Korea. It might be possible to apply the Foreign Economic Arbitration Act by recognizing the "foreign factor" of a dispute between the South Korean party and North Korean party. It is necessary to raise legislative clarifications by revising the North Korea's Foreign Economic Arbitration Act as to whether Korean parties or companies are included in the scope of this Act's application. Even if it is interpreted that South Korean parties or companies are not included in the scope of North Korea's Foreign Economic Arbitration Act, disputes between South Korean companies and North Korean companies can be resolved by foreign arbitration institutes such as CIETAC in China, HKIAC in Hong Kong, or SIAC in Singapore. Such arbitration awards could be enforced in North Korea pursuant to Article 64 of North Korea's Foreign Economic Arbitration Act. This is because the arbitration awards of foreign arbitration institutes are included in the scope of North Korea's Foreign Economic Arbitration Act. The matter is how to enforce the North Korean laws when a North Korean party or North Korean government does not abide by the laws or their contracts. It is essential for North Korea to join the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and the ICSID Convention (Convention on the Settlement of Investment Disputes Between States and Nationals of Other States).