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Admissibility of Subrogation Arbitration in the view of Firm Offer Hypothesis (확정오퍼가설 관점에서 바라 본 대위중재의 허용여부)

  • Cho, Chung-Kon
    • International Commerce and Information Review
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    • v.15 no.4
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    • pp.287-311
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    • 2013
  • The arbitration parties may disagree with the arbitrator's award about whether they are eligible for the dispute case. While lots of disputes cases relating to subrogation are arising, it is not easy to find subrogation arbitration system to handle them clearly. The main issue is an availability of subrogation arbitration in case of the dispute which the insurer requests the arbitration against the carrier according to the arbitration clause of Bill of Lading. The direct parties of arbitration clause of the B/L are the carrier and the holder of the B/L. Could the insurer get the position of the arbitration party in stead of the holder of the B/L after compensation if there was an accident of insurance on the way of carriage? Even though there are a few arbitral awards of subrogation, the reason of the eligibility of subrogation arbitration is not enough. This paper scrutinized precedent research papers, arbitration awards, judicial precedents, and the Automobile Subrogation Arbitration System. Vague dispute resolution system which burden corporations with so many costs must be not good for business. In the view of economic efficiency, blank of contract, reciprocality, and Coase Theorem, it is recommended that subrogation arbitration system for the international trade would be better focus on the hypothesis of "Firm Offer Character of Arbitration Clause."

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A Study on Grounds for Challenging Arbitral Awards in Korea and China (우리나라와 중국 중재법에서 중재판정의 취소사유에 관한 연구)

  • Shin Chang-Sop
    • Journal of Arbitration Studies
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    • v.16 no.2
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    • pp.51-88
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    • 2006
  • The obligation on a national court to recognize and enforce arbitral awards as provided in Article III New York Convention, which both Korea and China have ratified, is subject to limited exceptions. Recognition and enforcement will be refused only if the party against whom enforcement is sought can show that one of the exclusive grounds for refusal enumerated in Article V(1) New York Convention has occurred. The court may also refuse enforcement ex officio if the award violates that state's public policy. This article explores the circumstances where arbitral awards may be refused enforcement under the Korean and Chinese arbitration laws. It first analyzes the relevant statutory provisions. In Korea and China, which have adopted the UNCITRAL Model law, the grounds of challenge are exhaustively defined within their respective arbitration laws. According to their arbitration laws, an arbitral award may be set aside if a party making the application proves that (i) a party to the arbitration agreement was under some incapacity or the agreement is not valid under the applicable law, (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case, (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration, or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. An arbitral award may also be set aside ex officio by the court if the court finds that (i) the subject-matter of the dispute is not capable of settlement by arbitration under the applicable law or (ii) the award is in conflict with the public policy. This article then reviews relevant judicial decisions rendered in Korea and China to see how the courts in these countries have been interpreting the provisions specifying the grounds for challenging arbitral awards. It concludes that the courts in Korea and China rarely accept challenges to arbitral awards, thereby respecting the mandate of the New York Convention.

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Recognition and Enforcement of Arbitral Awards under England Arbitration Act

  • Sung, Joon-Ho
    • Journal of Arbitration Studies
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    • v.31 no.3
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    • pp.3-23
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    • 2021
  • England is a significant base for international trade in Europe, and dispute resolution through arbitration is active. Therefore, due to the geographical relationship with the European continent, the settlement of trade transactions and disputes with European countries is one of the most essential tasks. In this regard, arbitration procedures in England have been actively used for a long time. In England, dispute resolution methods through arbitration have been developed centered on merchant groups such as guilds from the 16th century and have been actively used until today. However, the arbitration procedure also had the characteristics of the common law because there was no legislation related to arbitration. Therefore, arbitration based on common law was carried out until the first half of the 19th century. In the 'Arbitration Act 1889', two types of arbitration systems, 'common law arbitration' and 'statutory arbitration' coexisted. However, in the arbitration procedure, according to the newly enacted 'Arbitration Act 1889', the arbitration agreement was binding from the time the arbitration agreement was reached. There was a way to select an arbitrator even if it was not explicitly stipulated in the arbitration agreement, and the arbitration award was quickly enforced. Arbitration under contract was preferred over common law arbitration, where withdrawal and revocation of awards were possible. However, in response to these provisions, the England courts considered the arbitration system to deprive the courts of jurisdiction, while a strengthened judicial review of arbitration procedures was done. In particular, England unified the arbitration-related laws, which had been scattered for a long time, adopted the model law, and enacted the 'Arbitration Act 1996'. Under the recognition and enforcement of arbitral awards in 'Arbitration Act 1996', Section 66 deals with the recognition and enforcement of arbitral awards and foreign arbitral awards. Section 2 of the 'Arbitration Act 1950' is inherited and used as it is. Second, it deals with the execution of arbitral awards under the New York Convention: Article 100 (New York Convention), Section 101 (Approval and Enforcement of Awards), Section 102 (Evidence Presented by a Party Seeking Recognition and Enforcement), and Section 103 (Provides Matters Concerning Rejection Recognition and Enforcement).

Basic Direction for the South and North Korea's Aybitration Rules (남북중재규정 제정의 기본방향)

  • Kim Yeon-Ho
    • Journal of Arbitration Studies
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    • v.15 no.1
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    • pp.3-26
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    • 2005
  • Since the Agreement on Commercial Arbitration was signed by the Governments of South and North Korea last year, there has been quite a few discussions on the way for implementing the Agreement in both public and private sectors. The Department of Justice of South Korea was quite active in making the draft of arbitration rules representing the South Korean views in alliance with the Department of Reunification of South Korea and recently held an informal seminar to preview their draft. On the other hand, the Korea Arbitration Association, a main body of commercial arbitration which are composed of professors and lawyers, were carefully watching the steps and the draft made by the Department of Justice. The reasons are to assure that not only shall the commercial arbitration rules comply with comment norms of international arbitration but shall it be made to meet the needs of enterprises investing in the Special Economic District of Kaesung City in North Korea. The concerns of the Korea Arbitration Association can be accomplished if the Department of Justice would modify the provisions pointed out in the seminars. Five general principles shall be brought into the attention in promulgating the commercial arbitration rules. First, it should comply with the Agreement on Commercial Arbitration signed by South and North Korea. Second, it should accept common rules contained in UNCITRAL arbitration rules. Third, it should boost the promptness of proceedings when a case was filed. Fourth, it should feature unique aspects of trade between South Korea and Korea by differentiating it from purely international trade between a country and a country. Lastly, it should combine the respective rules of both South and North Korea, currently in effect. With the above five principles accomplished, it should be noted that the Agreement on Commercial Arbitration the upper authority of arbitration rules, mandates the following features. It declared that arbitration be processed by three arbitrators. Single arbitrator is not permitted. Arbitration can be adopted even if an arbitration clause does not exist in an agreement by the parties, provided that the dispute arose out of the scope of the Agreement on investment Guarantee signed by South Korea and North Korea. It excluded quick and simplified procedures even if the amount of claim in arbitration is minimal. All the procedures should take a formal procedure. It let the double administration offices operate. One is to sit in Seoul of South Korea and the other is to sit in Pyongyang of North Korea. This would intimidate the fastness of procedures. With the above principles and the features considered, each provision in the draft by the Department of Justice should be reviewed and suggested for change.

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The International Arbitration System for the Settlement of Investor-State Disputes in the FTA (FTA(자유무역협정)에서 투자자 대 국가간 분쟁해결을 위한 국제중재제도)

  • Lee, Kang-Bin
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.38
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    • pp.181-226
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    • 2008
  • The purpose of this paper is to describe the settling procedures of the investor-state disputes in the FTA Investment Chapter, and to research on the international arbitration system for the settlement of the investor-state disputes under the ICSID Convention and UNCITRAL Arbitration Rules. The UNCTAD reports that the cumulative number of arbitration cases for the investor-state dispute settlement is 290 cases by March 2008. 182 cases of them have been brought before the ICSID, and 80 cases of them have been submitted under the UNCITRAL Arbitration Rules. The ICSID reports that the cumulative 263 cases of investor-state dispute settlement have been brought before the ICSID by March 2008. 136 cases of them have been concluded, but 127 cases of them have been pending up to now. The Chapter 11 Section B of the Korea-U.S. FTA provides for the Investor_State Dispute Settlement. Under the provisions of Section B, the claimant may submit to arbitration a claim that the respondent has breached and obligation under Section A, an investment authorization or an investment agreement and that the claimant has incurred loss or damage by reason of that breach. Provided that six months have elapsed since the events giving rise to the claim, a claimant may submit a claim referred to under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings; under the ICSID Additional Facility Rules; or under the UNCITRAL Arbitration Rules. The ICSID Convention provides for the jurisdiction of the ICSID(Chapter 2), arbitration(Chapter 3), and replacement and disqualification of arbitrators(Chapter 5) as follows. The jurisdiction of the ICSID shall extend to any legal dispute arising directly out of an investment, between a Contracting State and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the ICSID. Any Contracting State or any national of a Contracting State wishing to institute arbitration proceedings shall address a request to that effect in writing to the Secretary General who shall send a copy of the request to the other party. The tribunal shall consist of a sole arbitrator or any uneven number of arbitrators appointed as the parties shall agree. The tribunal shall be the judge of its own competence. The tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. Any arbitration proceeding shall be conducted in accordance with the provisions of the Convention Section 3 and in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. The award of the tribunal shall be in writing and shall be signed by members of the tribunal who voted for it. The award shall deal with every question submitted to the tribunal, and shall state the reason upon which it is based. Either party may request annulment of the award by an application in writing addressed to the Secretary General on one or more of the grounds under Article 52 of the ICSID Convention. The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each Contracting State shall recognize an award rendered pursuant to this convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. In conclusion, there may be some issues on the international arbitration for the settlement of the investor-state disputes: for example, abuse of litigation, lack of an appeals process, and problem of transparency. Therefore, there have been active discussions to address such issues by the ICSID and UNCITRAL up to now.

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An Design of Analyzing Process by Construction Extension of Time (공기연장 분쟁의 공사기간 분석 프로세스 설계에 관한 연구)

  • Kim, Beop-su;Seong, Gi-gang;Bae, In-ho;Bang, Hong-soon;Choi, Hyeong-jin;Kim, Ok-kyue
    • Korean Journal of Construction Engineering and Management
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    • v.20 no.4
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    • pp.104-113
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    • 2019
  • Construction dispute about Extension of Time are complexly intertwined with various issues. The duration delay analysis defines the impact the issue has on the duration variation. And The international court and the arbitrator use the results of the analysis as a basis for reasonable duration judging. However, most of the domestic Construction sites have not established a business process for Extension of Time litigation. Therefore, Analysis data are collected after the occurrence of the dispute, there is not enough basic data of analysis almost. This study sought to improve the management efficiency by organizing information requirement for delay analysis and suggesting a reasonable business process. As a result of applying the proposed process to actual construction duration extension disputes, about 33% of practitioners, 46% of contractors, and 48% of legal advisors were satisfied with the process application site And Matrix validation was 91% identical. This study suggests that it is possible to increase the efficiency of the construction duration analysis work used as a basis in the construction dispute. Finally, the Computer based system design for this process should continue in the future.