• 통상정보연구
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• 제8권3호
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• pp.207-227
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• 2006

An Arbitration agreement is one kind of contracts between two or more contracting parties; any possible disputes that arise concerning a contract will be settled by arbitration. The parties are free to agree on the number of arbitrators. The role of the arbitrator is so significant in the arbitration system that its success or failure may depend on the credibility of the arbitrator. The purpose of this paper is to examine the specific elements of the Arbitration Clause through arbitration laws, arbitration rules and the related cases, to introduce the standard clause which are recommended by the international institution and the individual countries, and to make the parties of international commercial contracts reflect them in their contracts. Thus this author would like to recommend the famous and well known the Standard Clause which were drafted by international institution such as ICC and UNCITRAL or individual countries.(LCIA, AAA, CIETAC, KCAB)

• 한국중재학회지:중재연구
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• 제20권1호
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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.

• 한국중재학회지:중재연구
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• 제18권3호
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• pp.117-138
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• 2008

This study lies on building the International Standardization of China Arbitration System for improving a relationship of mutual trust and the safety trade between China and other worldwide countries, especially, South Korea as their one of the biggest trading partners through the comparative analysis of China and UNCITRAL Arbitration Law. In this analysis, the differences from China and UNCITRAL in arbitration law are like belows ; lack of arbitrator's international mind, the limitation of private property right, prohibition of Ad. hoc arbitration, arbitrator's biased nationalism, localism, and their short specialties. a deficiency of the objectiveness for arbitrator's election, a judgement rejection of claimants by using nonattendance and walkout, impossibility of prior and temporary property custody for execution of arbitration award. etc. For the improvement of the International Standardization of China Arbitration, this paper propose as follows: 1) Extension of private property right, reorganization of tax system, realization of open competition, exclusion of 'Sinocentrism', globalization of arbitration system 2) The abolition of old fashioned bureaucracy with approval for ad.hoc arbitration 3) An education for arbitrator's internationalization, specialty, and to promote legal knowledge 4) A settlement of the third country arbitrators' selection for reflecting interested party's decision by the court in a selection system of arbitration committee. 5) Institutionalization of arbitration judgment that prevent for claimant's avoidance by using a withdrawal and an intentional absent 6) A permission of the right of claimant's court custody directly before the begging of arbitration request for the prevention for destruction of evidence and property concealment 7) Grant of the arbitration tribunal's interim measures of protection for private property preservation to the third party, proof security, prevention from the loss that selling the corruptible goods 8) Improvement of arbitration's efficiency from the exclusion of the obstacles that are forgery, concealed evidence, and arbitrator's bribe taking Lastly, I hope that this study will serve to promote friendly economic relationship between China and South Korea and strive for international equilibrium through the achievement of China Arbitration's International Standardization. I will finish this paper with a firm belief that this will lead to more advanced studies.

• 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.

• 한국중재학회지:중재연구
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• 제17권1호
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• pp.33-55
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• 2007

Parties to national or international disputes use arbitration because they think it is faster than litigation or affords privacy. But it is very important for the parties that the decision of arbitrators is made impartially and independently. For the parties to accept the outcome of an arbitration, it is essential that the final outcome be the result of an impartial process, especially because arbitration is a form of adjudication, albeit a private one. The success of arbitration resides in the conduct of arbitrators. The more independent and impartial arbitrators are, the more trustworthy arbitration will be. Just as court procedures allow for the recusal of judges under certain circumstances, the arbitral process provides means to remove arbitrators from a tribunal if arbitrator can no longer be considered impartial or independent. This is blown as the disqualification or challenge of arbitrators. An arbitrator can also be challenged when he or she does not fulfill the contactually agreed and stipulated qualifications required by the arbitral agreement. An arbitrator's inability to act impartially could give rise to a challenge to the arbitrator, and even to the award. However, deciding whether an interest or relationship could give rise to an apprehension of bias is a difficult issue for every arbitrator. The standard of arbitrator's impartiality and independence is not commensurable to that of judge, because the parties are permitted considerable autonomy in selecting arbitrators. Particularly it may be expected for the party-appointed arbitrator to act as the advocate of the party in the deliberations of the tribunal. Doubts that could give rise to a challenge to the arbitrator should be justifiable. That is the case if a reasonable, informed third party would conclude that the arbitrator's decision making might be influenced by factors other than evidence presented by the parties. Consequently, for example, the mere fact that an arbitrator was to work in the same firm as one of the parties' counsel, this could not automatically be considered as grounds for challenge for lack of impartiality.

• 한국중재학회지:중재연구
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• 제15권3호
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• pp.113-137
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• 2005

In the provisions of 'the Arbitration Law of China, there are special provisions for international arbitration. When a court refuses the recognition and enforcement of foreign arbitral awards or cancel the domestic awards relating to international arbitration, they have to adopt the provisions of 'Chinese Civil Procedure Law'. These provisions are the same as the provisions of Korean Civil Procedure Law concerning the reasons of renewal. In the Korean Arbitration Act, those provisions disappeared when it was revised on December 31, 1999. Among the characteristics of the Chinese arbitration system, a serious question is that it provides only institutional arbitration and there is no ad-hoc arbitration in the Chinese Arbitration Law. On the other hand, when the parties appoint three arbitrators according to their agreement, the parties appoint the third arbitrator by mutual agreement and when they fail to agree, the Arbitration Committee appoints the third arbitrator. In practice, as the parties hardly agree on the third arbitrator or sole arbitrator, the Committee usually appoints them. And appointing an arbitrator from out of their panel of arbitrators is permitted these days only under examination by the Arbitration Committee in accordance with the arbitration rules of the China International Economic and Trade Arbitration Commission, Other arbitration committees except the China International Economic and Trade Arbitration Commission are still prohibited from making appointments from out of their panel of arbitrators. Accordingly, arbitration in China cannot be predicted and poses a question about legal stability as party autonomy is restricted in the appointment of arbitrators and arbitral procedure. Such being the case it is strongly recommended to select Korea as the place of arbitration in transactions with China. However it is better to arbitrate than to file a law suit in China.

• 한국중재학회지:중재연구
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• 제18권2호
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• pp.33-54
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• 2008

The KCAB enacted their new international arbitration rules(the KCAB rules) in 2007 wheres The CIETAC revised their arbitration rules(the CIETAC new rules) in 2005. This article investigates some practical problems on both rules respectively and helps trading companies to proceed arbitration by these rules. This study finds some problems as follows. There are the following problems in KCAB rules. First, application fee is too expensive fee. So KCAB should cut down their application fee. Second, if there is no agreement on number of arbitrators, the arbitration is processed by sole arbitrator. But it is very difficult for sole arbitrator to process international arbitration due to characteristics of international arbitration such as complexity of case and a large sum of claim. Third, a period of selection of arbitrator is long. In view of developing of communication means, this period is needed more short. In the meantimes, there are the following problems in CIETAC rules. First, though the CIETAC new rules enlarges the right of parties autonomy such as selection of arbitration rules or revise of it, China arbitration Act stipulates a institute arbitration which restrict partie's autonomy. Second, if there is no agreement on arbitrators, the CIETAC appoints chair of tribural in three arbitrators ion or sole arbitrators. is processed by sole arbitrator. Third, a draft of arbitral award is checked by the CIETAC in advance. Especially, the two latter problems is possible for foreigners to have doubts of fairness of CIETAC arbitration. Becuase the CIETAC is not a complete independent private institution. Consequently, I suggest that Korean trading companies should examine problems of these two arbitration rules carefully, and select a most appropriate rules for settlement of their disputes with Chines companies.

• 한국중재학회지:중재연구
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• 제18권1호
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• pp.31-47
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• 2008

An arbitrator's duty shall be independence and impartiality such as a judge who has procedurally absolute position. Independence is the freedom from others, impartiality is the status of having no-partial condition. Although these show relevance between independence and impartiality, in actuality, it is not easy to prove them. Therefore, arbitrator has to prove his or her position by opening the public of reality and by having an obligation of notification. Each country which applies Arbitration rules or Arbitration act stays the same as Korean Commercial Arbitration Board does. Hence, each country has the moral principles in order to establish a standard of judgement for essential factors and requests preferentially the impartiality and the publicity. In reality, court of justice in England excludes arbitrator who has the close relation to a person concerned. Justice in France cancelled an authorization of arbitrator because of having the economic interest to the person concerned. And also, In United States, Federal Court reverses an arbitration judgment without giving any partiality to a person concerned because of not opening a public about the relationship between arbitrator and a person concerned. Therefore, decision basis of the independence and the impartiality is standardized by the economic interest of a person concerned, professional relation, society connection, relationship between arbitrator and arbitration representative in the same case while in process of arbitration, arbitrator's nationality If arbitrator does not keep the independence and the impartiality by a position of judge, he or she has to make responsible. this duty is divided by two things: civil case and crime case. and if arbitrator does break this responsibility, he or she will get the cancellation of judge and compensation of damage. However, Korea is placed in the real circumstance without judge precedent and moral principles including the independence and impartiality. In order to getting the good reputation of international arbitration institution, this country will have to enact principles of the independence and impartiality for arbitrator.

• 무역상무연구
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• 제64권
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• pp.99-128
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• 2014

Last year, Seoul International Dispute Resolution Center(SIDRC) was set up to facilitate and promote international arbitration in Korea. This study was focused on the revision of arbitration rules such as ICC, SIAC, HKIAC and JCAA. As a leading arbitration institution in the world, ICC has tried continuously to provide more efficient service to their client by adopting emergency arbitrator(EA) & multi party arbitration. Other three institutions also introduced almost same mechanism to compete each other. These two new system is very innovative in international arbitration. First of all, EA was designed to provide interim measure service to preserve or protect parties' right before the constitution of arbitral tribunal. Arbitration institutions and arbitral tribunals should be careful to decide these requests are legitimate or not because too hasty approval on joinder or consolidation without full consideration such as parties' intention or argument may issue another serious problem - setting aside an award rendered after joined or consolidated.

• 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.