• 한국중재학회지:중재연구
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• 제25권2호
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• pp.97-118
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• 2015

As China has quickly emerged as a global economic power, the total number of international commercial disputes arbitrated by Chinese arbitral institutions has increased dramatically. Along with this, the annulment procedure of arbitral awards in China have been newly brought to the fore. In accordance with the historical background and the demand of the times, the Chinese annulment procedure of arbitral awards reveals distinctive Chinese features. Although it was enacted in the face ofof an unwarranted prejudice against the dispute settlement system by arbitration as well as a deep mistrust of domestic arbitral institutions, the annulment procedure of arbitral awards showed a certain degree of justification and rationality in its initial stages of legislation. However, it is also the case that it has not adapted well to new domestic or foreign arbitration circumstances in the last twenty years. At present, there is a keen interest in revisions to and debates on arbitration law of China. It is necessary to take an active part in the amendment discussion and process of arbitration law. Moreover, we need to reform the annulment procedure of arbitral awards in order to meet the global trend of arbitration law.

• 한국중재학회지:중재연구
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• 제26권4호
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• pp.3-41
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• 2016

This paper reviews the problems on the arbitral awards enforcement in the 2016 Korean Arbitration Act. In order to get easy and rapid enforcement of the arbitral awards, the new arbitration act changed the enforcement procedure from an enforcement judgement procedure to an enforcement decision procedure. However, like the old arbitration act, the new act is still not arbitration friendly. First of all, there are various problems in the new act because it does not approve that an arbitral award can be a schuldtitel (title of enforcement) of which the arbitral award can be enforced. In this paper, several problems of the new act are discussed: effect of arbitral award, approval to res judicata of enforcement decision, different trial process and result for same ground, possibility of abuse of litigation for setting aside arbitral awards and delay of enforcement caused by setting aside, infringement of arbitration customer's right to be informed, and non-internationality of enforcement of interim measures of protection, inter alia. The new arbitration act added a proviso on article 35 (Effect of Arbitral Awards). According to article 35 of the old arbitration act, arbitral awards shall have the same effect on the parties as the final and conclusive judgement of the court. The proviso of article 35 in the new act can be interpret two ways: if arbitral awards have any ground of refusal of recognition or enforcement according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court; if arbitral awards have not recognised or been enforced according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court. In the case of the former, the parties cannot file action for setting aside arbitral awards in article 36 to the court, and this is one of the important problems of the new act. In the new act, same ground of setting aside arbitral awards can be tried in different trial process with or without plead according to article 35 and 37. Therefore, progress of enforcement decision of arbitral awards can be blocked by the action of setting aside arbitral awards. If so, parties have to spend their time and money to go on unexpected litigation. In order to simplify enforcement procedure of arbitral awards, the new act changed enforcement judgement procedure to enforcement decision procedure. However, there is still room for the court to hear a case in the same way of enforcement judgement procedure. Although the new act simplifies enforcement procedure by changing enforcement judgement procedure to enforcement decision procedure, there still remains action of setting aside arbitral awards, so that enforcement of arbitral awards still can be delayed by it. Moreover, another problem exists in that the parties could have to wait until a seventh trial (maximum) for a final decision. This result in not good for the arbitration system itself in the respect of confidence as well as cost. If the arbitration institution promotes to use arbitration by emphasizing single-trial system of arbitration without enough improvement of enforcement procedure in the arbitration system, it would infringe the arbitration customer's right to be informed, and further raise a problem of legal responsibility of arbitration institution. With reference to enforcement procedure of interim measures of protection, the new act did not provide preliminary orders, and moreover limit the court not to recognize interim measures of protection done in a foreign country. These have a bad effect on the internationalization of the Korean arbitration system.

• 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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• 제19권2호
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• pp.3-26
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• 2009

This paper is to research on the role of party autonomy in the decision of applicable law for the arbitral proceeding, arbitral award and arbitration agreement, in the decision of the place of arbitration, in the composition of arbitration tribunal, and the choice of arbitral proceedings. The principle of party autonomy is fundamental to arbitration in general and to international arbitration in particular. Generally the tenn of party autonomy is used as the autonomy of the parties to decide all aspects of an arbitration procedure subject only to certain limitations of mandatory law. Party autonomy permits the parties to a commercial arbitration to choose the laws and make the rules which govern the arbitral proceedings. Party autonomy allows the parties freedom to choose the applicable laws for the arbitral proceeding and the place of arbitration. Party autonomy is recognized in relation to the choice of law for the merits of the dispute as well as for the arbitration agreement and the arbitration procedure. On the basis of the recognition of party autonomy in international treaties, national legislation and court decisions, arbitral practice has generally accepted and enforced party autonomy both regarding the procedure and the applicable substantive law. All modern institutional rules of arbitration follow that line. Today it is recognized by national legislators all over the world to the effect that the jurisdiction of national courts can be excluded by arbitration agreement and that the parties may choose the law applicable to arbitral proceedings. Limits on party autonomy are imposed by mandatory provisions of international or national law or of institutional arbitration rules regarding the procedure. Mandatory laws at the place of the arbitration or under any procedural law chosen by the parties may restrict party autonomy. These mandatory laws usually take the form of public policy considerations in the arbitration. Limitations on party autonomy have been reduced more and more, and the trend of modern national as well as international legislation on arbitration leans clearly in the direction of a maximum of party autonomy.

• 한국중재학회지:중재연구
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• 제14권1호
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• pp.213-244
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• 2004

This article studied on international trade dispute of enforcement procedure of foreign arbitral awards at Korean Supreme Court, which is especially related to New York Convention article 5, The key points of most enforcement procedure were about public policy according New York Convention article 5, 2, b and New York Convention article 5, 1. Particularly, Judgement of public policy from Supreme Court represented that the recognition and enforcement of foreign arbitral award is to present and protect basic moral conviction and social order from spoiling, and not only domestic situation but also international stability of transaction should be taken into consideration in judging on recognition and enforcement of foreign arbitral award, which is construed under certain limitation. In this point, you should be understand the concept on refusal reasons in enforcing of foreign arbitral awards

• 한국중재학회지:중재연구
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• 제30권2호
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• pp.43-68
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• 2020

The "arbitration" system resolves disputes through judgments on rights relations or claims between disputed parties by judging by private trial, but it does not have organizational and material bases to execute the contents of these judgments. Therefore, unless the parties succeed in voluntarily surrendering to the results of the arbitration award, the implementation of the award will be accomplished by the enforcement of the assistance of the National Court. However, unlike the court's ruling, the arbitration tribunal does not generate enforcement power from the judgment itself, and it must be filed with the court for execution. In this regard, Germany provides for arbitration proceedings in the Civil Procedure Act Volume 10. In particular, Article 1060 governs the approval and enforcement of domestic arbitral awards. Accordingly, the procedure for declaring the feasibility of domestic arbitration proceedings and the execution of forced execution are commenced. Regarding the enforceable declaration of a domestic arbitral award, it differs from the simpler process requirements compared to the procedure in a foreign arbitral award, and usually has the same effect as a final judgment between the parties without a separate approval procedure. However, the arbitration award does not constitute an enforceable power that can be implemented, but is enforced through the national court's declaration procedure. However, if there is a ground for cancellation as provided for in Article 1059 (2) of the German Civil Procedure Act, the arbitral award is canceled and the application for enforcement is dismissed.

• 한국중재학회지:중재연구
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• 제23권1호
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• pp.1-23
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• 2013

When a court recognizes an arbitral award, it acknowledges that the award is valid and binding, and thereby gives it a set of effects similar to those of a court's judgment, among which res judicata is the most important. The res judicata effect of an arbitral award generally forbids parties to an action from subsequently litigating claims that were raised in a prior arbitration. In common law countries, res judicata may also preclude re-adjudication of issues raised and decided in a prior arbitration. The Korean Arbitration Act acknowledges the rights of parties to an arbitral award to seek not only an enforcement judgment but also a recognition judgment on an arbitral award. Therefore, the question arises whether or not the winning party in an arbitration must acquire a recognition judgment on the arbitral award in order to enjoy the effects of a recognized award. However, according to the case law and generally accepted views, an arbitral award is automatically recognized without any additional procedure, as long as it satisfies the requirements for recognition. Therefore, in order to resolve this question, it is desirable to eliminate the statutory clause that stipulates the right to seek recognition judgment.

• 한국중재학회지:중재연구
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• 제16권1호
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• pp.187-217
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• 2006

This study has the purpose to investigate other countries' arbitrator systems to compare with the current KCAB's system and to find their merits and demerits so that we can make up for the demerits of KCAB's arbitrator system and to make the most use of its merits. The most important factor of arbitral procedure is the arbitrator. If we compare clauses related with the arbitrator to KCAB's arbitration rules, expand the merits of it and apply the merits of other arbitrating organs, KCAB's arbitration can avoid criticism which it has got so far while it was handling the international cases. Also, we may need to grow up the role of the executive office in the range of respecting the self-government of the concerned party for the rapid proceeding of arbitral procedure. According to the foreign countries' international arbitration rules, they go with the process that they firstly give the concurrence period to the concerned parties, especially related with the arbitral procedure such as selection of arbitrator or filling the vacancy of the arbitrator, and as for the concerned party who doesn't fulfill within that period, the arbitrating organ or the other one corresponding to the pertinent arbitrating organ in case of the ad-hoc arbitration rules fulfill instead.

• 한국중재학회지:중재연구
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• 제28권2호
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• pp.45-66
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• 2018

Two years ago, an emergency arbitrator procedure in accordance with the international arbitration rule has been finally adopted in Korea?a decade after its introduction. Arbitral institutions provide interim measures in the course of tribunal proceedings to avoid litigation in open court that is often expensive and time-consuming. An emergency arbitrator procedure offers an urgent relief prior to the constitution of an arbitral tribunal, thus enhancing the speed and effectiveness of the arbitration procedure even further. Although most of the arbitral institutions interpret that the emergency arbitration rulings are binding on the parties, enforcing the emergency arbitration provisions have some difficulties in practice, and it is not clear whether or not arbitral interim measures will be enforceable under the newly adopted provisions in Korea. In this study, experiences in other countries are explored in seeking for the possible problems and solutions of enforcing the emergency arbitration rulings. For example, Singapore and Hong Kong insert terms such as "finality," "enforceable in the same manner as an order or direction of the Court," "same effect as an arbitral tribunal or interim measures" in their emergency arbitrator legislation to enhance enforcement. Moreover, "urgency inherent" are considered.

• 한국중재학회지:중재연구
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• 제27권1호
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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.