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A Study on the Draft and Issues for the Revision of UNCITRAL Arbitration Rules (UNCITRAL 중재규칙 개정안의 내용과 쟁점에 관한 연구)

  • Lee, Kang-Bin
    • Journal of Arbitration Studies
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    • v.17 no.2
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    • pp.43-70
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    • 2007
  • The purpose of this paper is to make research on the contents and discussions of the draft of revised UNCITRAL Arbitration Rules that have been discussed and considered by the Working Group. At its thirty-ninth session (New York, 19 June-7 July 2006), the Commission agreed that, in respect of future work of the Working Group, priority be given to a revision of the UNCITRAL Arbitration Rules (1976). At its forty-fifth session (Vienna, 11-15 September 2006), the Working Group undertook to identify areas where a revision of the UNCITRAL Arbitration Rules might be useful. At that session, it was considered that the focus of the revision should be on updating the Rules to meet changes that had taken place over the last thirty years in arbitral practice. The largely amended provisions of the draft of revised UNCITRAL Arbitration Rules are as follows : Notice of arbitration and response to the notice of arbitration (Article 3), Designating and appointing authorities (Article 4 bis), November of arbitrators (Article 5), Appointment of arbitrations (Article 6), Appointment of arbitrators in multi-party arbitration (Article 7 bis), Challenge of arbitrators (Article 9), Replacement of an arbitrator (Article 13), Pleas as to the jurisdiction of the arbitral tribunal (Article 21), Interim measures (Article 26), Form and effect of the award (Article 32), and Liability of arbitrators (Proposed additional provisions). There are some differences between the draft of revised UNCITRAL Arbitration Rules and the KCAB Arbitration Rules. In order to jnternationalize the Korea's commercial arbitration system, it is desirable that the main articles of the draft of revised UNCITRAL Arbitration Rules should be admitted to the KCAB Arbitration Rules. In conclusion, the Commission was generally of the view of any revision of the UNCITRAL Arbitration Rules should not alter the structure of the text, its spirit, its drafting style, and should respect the flexibility of the text rather than make it more complex. The Working Group agreed that harmonizing the provisions of the UNCITRAL Model Law should not be automatic but rather considered only where appropriate.

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A Study on the Revised UNCITRAL Arbitration Rules 2010 - Focus on the Main Revised Provisions - (UNCITRAL 개정 중재규칙에 관한 연구 - 주요 개정내용을 중심으로 -)

  • Yu, Byoung-Yook
    • The Korean Research Institute of International Commerce and Law
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    • v.55
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    • pp.33-62
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    • 2012
  • Arbitration is an essential methods of settlement for disputes in international commercial transaction. UNCITRAL Arbitration Rules have been in force after adoption in 1976. Over the 30 years, UNCITRAL Arbitration rules have been modeled for domestic and international arbitration institutes for setting and revision on their arbitration rules. UNCITRAL Committee has published the revised Arbitration Rules which entered into force after 15 August 2010. Therefore new version of arbitration rules are substituted for the previous version of UNCITRAL Arbitration Rules 1976 since its enforcement. The revised arbitration rules of UNCITRAL have been changed in various items for convergence with new trends and modern practices on arbitration including information communication and technology. The revision of arbitration rules focused on resolving problems in practice and codifying best practice to enhance the efficiency of arbitration conducted under the rules. There are considerable in a number of important respects on the removing the restricted in writing requirement for information technology, adapting the multiparties arbitration, joinder arbitration, truncated arbitral tribunal and adjustment in terms and condition and construction simply. Also a number of provisions have been refined, varied and clarified with new articles included. Conclusively the new revised arbitration rules fill a number of gaps which became apparent in the UNCITRAL Arbitration Rules 1976 to bring into line with new modern practices of international arbitration rules in international commercial disputes. This paper focus on the study the problems and inspired points on significant revised provisions and its considerable points in arbitration environment. This paper is approaching to the comparisons of UNCITRAL revised Arbitration Rules 2010 with previous Arbitration Rules 1976 of UNCITRAL and International Arbitration Rules 2011 of KCAB.

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A Study on the UNCITRAL's Preliminary Draft Instrument on the Carriage of Goods by Sea (UNCITRAL의 해상화물운송협약의 예비초안에 관한 연구)

  • Choi, Myung-Kook
    • The Korean Research Institute of International Commerce and Law
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    • v.20
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    • pp.267-292
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    • 2003
  • UNCITRAL considered a proposal to include in its work program a review of current practices and laws in the area of the international carriage of goods by sea, with a view to establishing the need for uniform rules where no such rules existed and with a view to achieving greater uniformity of laws. And UNCITRAL Working Party, as of April, 2003, is reviewing the UNCITRAL's Preliminary Draft Instrument which was originally prepared by CMI. As said above, the Preliminary Draft Instrument has a lot of improved provisions in relation to the scope of application, period of responsibility, obligations and liability of carrier, obligations of shipper and so on, but it has also some provisions which should be reconsidered in light of changed environments. Therefore, UNCITRAL Working Party has to prepare more complete and widely adoptable new uniform rules under the sufficient discussion.

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Recent Developments : The Third Reading of the Revised Version of the UNCITRAL Arbitration Rules of 1976 (UNCITRAL의 최근 동향 : 1976년 UNCITRAL 중재규칙 개정안의 제3회독을 중심으로)

  • Kang, Pyoung-Keun
    • Journal of Arbitration Studies
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    • v.20 no.2
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    • pp.3-26
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    • 2010
  • In 2006, the UNCITRAL Working Group II started a new project on the revision of the UNCITRAL Arbitration Rules of 1976. Ever since that time, 9 sessions of the Working Group II were devoted to the discussions on such topic. The Arbitration Rules has been acknowledged to be used for settling international disputes involving various disputing parties. In recent years, many treaty-based arbitrations have been subject to the Arbitration Rules. This article focuses on the discussions made in the 52nd session of the Working Group II where the third reading of the revised draft of the Arbitration Rules was completed except for a few provisions. Among the draft rules, the delegations were hardly able to reach an agreement with regard to Articles 2(2), 34(2), 41(3), (4), and (6). It is expected that those provisions would be agreed in the coming 43rd plenary session of the UNCITRAL. The use of the Arbitration Rules is dependent on the agreement by the disputing parties. It is not like the UNCITRAL Model Law on International Commercial Arbitration which was adopted in Korean legal system in 1999. However, the proper functioning of arbitration rules is essential for the efficient and successful operation of the arbitration system in a particular country. That is the reason why we should keep close attention on the discussions of the UNCITRAL with regard to the revision of the Arbitration Rules.

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Analysis of Deliberations by UNCITRAL Working Group on the Draft Revised Version of UNCITRAL Arbitration Rules (UNCITRAL 중재규칙(仲裁規則) 개정초안(改正草案) 내용(內容)의 분석(分析)과 방향검토(方向檢討))

  • Kang, Pyoung-Keun
    • Journal of Arbitration Studies
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    • v.18 no.2
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    • pp.3-31
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    • 2008
  • At its thirty-ninth session(New York, 19 June - 7 July 2006), United Nations Commission on International Trade Law(hereinafter referred to as the Commission) agreed to give priority to the topic of revising the UNCITRAL Arbitration Rules. From the forty-fifth through the forty-seventh session, the Working Group checked various issues based on the draft revised version of the UNCITRAL Arbitration Rules prepared by the Secretariat. At its forty-eighth session, the Working Group is going to finish its first reading of articles 38 to 41 of the draft revised version of the UNCITRAL Arbitration Rules, and to commence its second reading of the draft revised version of UNCITRAL Arbitration Rules. Korea is keen on enticing foreign direct investment into its territory. From the 1960s, Korea has concluded more than 80 BITs. Korea is making efforts to conclude FTAs with its trading partners. As of January, 2008, 3 FTAs have taken into effect with respect to Korea. According to provisions on dispute settlement found in such BITs and FTAs involving Korea, the Rules can be chosen for Investor-State Arbitration. Furthermore, the Rules is followed by the arbitration rules for domestic and international arbitrations administered by the Korean Commercial Arbitration Board. If the Commission adopts the revised version of UNCITRAL Arbitration Rules, the Rules will be able to give impact on the arbitration law and practice around the world of arbitration. That is the reason why we should keep attention to the development of the deliberations of the Working Group.

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The Revision Guideline of Interim Measures of Protection under UNCITRAL Model Law on International Commercial Arbitration (UNCITRAL 모델중재법상 임시적 보호처분의 개정방향)

  • Lee Kang-Bin
    • Journal of Arbitration Studies
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    • v.14 no.2
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    • pp.73-106
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    • 2004
  • The UNCITRAL Arbitration Working Group began its deliberations on the topic of interim measures of protection at its thirty-second session (Vienna, 21-30 March 2000), when the Working Group expressed general support for a legal regime governing enforcement of interim measures of protection ordered by the arbitral tribunal. Also the Working Group took a preliminary analysis of whether there was a need for a uniform rule on court-ordered interim measures of protection in support of arbitration. The Working Group agreed, at its thirty-third session (Vienna, 20 November-1 December 2000), that the proposed new article to the UNCITRAL Model Law on International Commercial Arbitration on enforcement of interim measures of protection (tentatively numbered article 17 bis) should include an obligation on courts to enforce interim measures if prescribed conditions were met. At its thirty-fourth session (New York, 21 May-1 Jun 2001), in addition to continuing its review of draft article 17 bis, the Working Group proceeded to consider a text revising article 17 of the UNCITRAL Model Law, which defined the scope of an arbitral tribunal's power to order interim measures and included an additional provision on the granting of interim measures on an ex parte basis. Discussions in relation to revised drafts of article 17 and 17 bis of the UNCITRAL Model Law have continued at the fortieth session ( New York, 23-27 February 2004). Article 17 of the UNCITRAL Model Law provides that the arbitral tribunal may order any party to take such interim measure of protection as the arbitral tribunal may consider necessary in respect to the subject matter of the dispute. However it may be noted that the article does not deal with enforcement of such measures.

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A Comparative Study on Certain Procedural Issues of ICSID and UNCITRAL Arbitrations (ICSID중재와 UNCITRAL중재의 중재절차에 관한 비교연구)

  • Seo, Kyeong
    • The Korean Research Institute of International Commerce and Law
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    • v.43
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    • pp.481-507
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    • 2009
  • Along with continuous increase in international investments encouraged by wide spread bilateral investment treaties (BIT) including free trade agreements (FTA), international investment disputes have been also increasing. This means that a host State, an importer of foreign investments, and a investor who exports its investment to foreign State, need to take measures to prevent international disputes arising from international investment or to prepare for the arbitration for resolving the disputes. Under these circumstances, this paper compares ICSID arbitration rules and UNCITRAL arbitration rules in respect of (i) the institution of arbitration, (ii) the appointment of arbitrators and the composition of arbitral tribunal, and (iii) the procedures for, and the form of, arbitral awards. On base of this comparison, this paper further suggests certain practical issues that the host State's government and the foreign investors should be aware of in order to be ready for the resolutions of disputes by ICSID or UNCITRAL arbitrations.

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A Study on Problems and Implication of Obligations and Responsibilities in Electronic Funds Transfer -Focused on the UCC and the UNCITRAL Model Law- (전자자금이체상의 당사자의 권리와 의무상의 문제점 및 시사점 -UCC와 UNCITRAL Model Law 중심으로-)

  • Kim, Jong-Chill;Lee, Byeong-Ryul
    • International Commerce and Information Review
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    • v.6 no.2
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    • pp.339-358
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    • 2004
  • This article discusses the critical issues on obligations and responsibilities in electronic funds transfer(EFT) between Article 4A of the UCC and the Model Law on International Credit Transfers of UNCITRAL. The electronic fund transfers begin with the issue of the payment order by the originator to the receiving bank for the beneficiary. All obligations and responsibilities of parties concerned occur when the receiving bank accept the originator's payment order to executes. So far, some the most compelling studies have focused on the legal obligations and responsibilities of electronic fund transfer in Korea. Therefore, In this paper, we would like to examine some problems of obligations and responsibilities in electronic fund transfer from Article 4A of UCC and the Model Law on International Credit Transfers of UNCITRAL. And also we present some Implications to reform EFT Law for the efficient application.

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Discussion and Evaluation in UNCITRAL Regarding Procedural Rules for Disputes in International e-Commerce - Focused on the Discussion in the 26th Session of Working Group III - (국제전자상거래 분쟁해결을 위한 절차 규칙에 관한 UNCITRAL의 논의와 그 평가 - 제26차 실무작업반의 논의를 중심으로 -)

  • Lee, Byung-Jun
    • Journal of Arbitration Studies
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    • v.23 no.1
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    • pp.133-152
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    • 2013
  • Recently, the United Nations Commission on International Trade Law (UNCITRAL) has made progress toward resolving low value, high volume disputes in international e-commerce. At the Working Group's 26th session, two draft procedural rules were addressed. The first discussed the draft of Article 9, entitled "Decision by a neutral party." This is based on the suggestion in 26th session to have a "two track" system of ODR, one including negotiation, facilitated settlement, and arbitration phrases, and the other not including an arbitration phase. The second draft procedural rule, draft Article 10, regards the language of proceedings. In most cases of international e-commerce, the decision of language of an ODR proceeding is a matter of importance, for the language parties could differ from each other. This paper examines several implications of UNCITRAL for Korea, which has unstable ODR system.

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A Study on the Interim Measures by Arbitral Tribunal in International Commercial Arbitration -Focus on the Korean Revised Arbitration Law and UNCITRAL Model Law - (국제상사중재에서 중재판정부에 의한 임시적 처분에 관한 고찰 -우리나라 개정 중재법과 UNCITRAL 모델중재법을 중심으로-)

  • YU, Byoung-Uk
    • The Korean Research Institute of International Commerce and Law
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    • v.76
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    • pp.21-47
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    • 2017
  • Interim measures by an arbitral tribunal aim to protect the parties' rights before or during arbitral proceedings for avoiding frustration of the final award in international commercial disputes. Even though decisions of the interim measure are expected to be performed by parties directly during the arbitral processing, it is not easy to be provided by the arbitral tribunals cause of lack the power to enforce their decisions directly against the parties. Particular court supports mechanism for enforcement directly to assistance to arbitral tribunal's decisions. Decisions on interim measures are provisional. Even though the arbitration is ongoing to request interim measure directly to the arbitral tribunal, relevant courts are able to ensure effective relief cause by the difficulty of limited rights of the arbitral tribunal. In this time both revised Korean Arbitration Act in 2016 and UNCITRAL 2006 revised Model Law are complemented to attach articles for recognition and enforcement of interim measures by arbitral tribunal during the arbitration processing. It could be possible to enforcement of decisions of interim measures by arbitral tribunal on the revised arbitration law. In this paper it is considered the problems and alternatives on related applicable articles and articles of recognition and enforcement for the interim measures by arbitral tribunal under the revised UNCITRAL Model law and Korean Arbitration Act.

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