• 무역상무연구
• /
• 제76권
• /
• pp.49-76
• /
• 2017

Lex arbitri, a law that regulates arbitration procedures at arbitral seat, can be viewed as an additional procedural law. In addition, the lex arbitri refers to mandatory provision imposed by each country on arbitrators in their own territory. The reason is that the lex arbitri often relates to matters of public policy of the place of arbitration. In Korea, the LMAA terms is frequently mentioned in the shipping industry in Korea, and the LMAA terms clause is often set up in the contract between Korean companies. However, the study of the UK Arbitration Act 1996, which regulates the LMAA arbitration, is not so much in Korea. On the other hand, Lex Arbitri, a corporation that regulates mediation procedures in arbitration, can be viewed as an additional procedure. There may also be procedures that must be followed compulsorily by the Arbitration Act of Arbitration. The reason is that Lex Arbitri seems to be related to the public policy of the arbitration. Therefore, the arbitration law of the country of arbitration seat may be the most important regulations in relation to the legality of the arbitration procedure. If the proceedings of the arbitration violate the Lex Arbitri, the arbitral award may be nullified. The purpose of this study is to analyze the arbitration theory, international arbitration and Lex Arbitri, focusing on the UK Arbitration Act 1996.

• 무역학회지
• /
• 제48권4호
• /
• pp.67-92
• /
• 2023

국제상사중재에서 중재판정을 효율적으로 집행하기 위해 중재판정부가 중재판정을 내리기 전에 분쟁 당사자의 권리 혹은 재산을 즉각적으로 보호해주는 임시적 처분조치는 반드시 필요한 제도이고 많은 국가에서 중재판정부가 임시적 처분조치를 내릴 수 있도록 하고 있다. 중국상사중재에서도 임시적 처분조치를 인정하고는 있으나 중국의 경우에는 그 절차상 법원의 개입이 반드시 필요한데 이는 국제중재의 발전 방향과 맞지 않는다는 비판이 있다. 하지만 최근 중국도 중재활성화 측면에서 주요 중재기관들의 규칙을 개정함으로써 임시적 처분조치 부분에서 법원의 간섭을 최소화하는 방향으로 변화를 추구하고 있다. 이에 본 논문은 상사중재에서 임시적 처분의 국제적 추세를 먼저 살펴보고 중국 상사중재에서 임시적 처분조치가 어떤 방향으로 발전해 나가는지를 관련 사례와 법규를 분석하여 살펴보고자 한다. 이러한 연구를 통하여 한국 기업이 중국기업과 상사중재로 분쟁을 해결하고자 할 때 어떤 방식으로 임시적 처분 제도를 활용해야 하는지에 대한 실무적인 시사점을 제시하고자 한다.

• 무역상무연구
• /
• 제64권
• /
• pp.99-128
• /
• 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
• /
• 제25권2호
• /
• pp.3-17
• /
• 2015

For many years commentators have requested more active regulation of attorney ethics in international arbitration. Gradual deterioration of ethical standards in international arbitration will bring disrepute and, once its reputation is lost, it could take decades to rebuild confidence. The first reason for increasing unethical behavior is that there is no ethical code generally applied to all lawyers participating in international arbitration. A second reason might be that nobody is actively regulating attorneys in international arbitration. The first step to solve this problem is that major arbitration institutions should cooperate to enact a uniform code of conduct to be generally applied to all attorneys representing parties in international arbitration. Recently, IBA and LCIA prepared guidelines on party representation in international arbitration, and the guidelines will help attorneys follow uniform standardsof ethics. However, this will not be sufficient. There should be a regulating body to monitor attorney ethics and take sanctions against unethical attorneys accordingly. Arbitrators, who can see unethical behavior by attorneys from the closest distance, are the most appropriate regulating force rather than courts of arbitration seat or an attorney's licensing country. Of course, arbitrators don't have powers to withdraw or suspend an attorney's license, but they have powers to control attorneys'behavior within arbitration proceedings such as an allocation of fees and costs, barring the assertion of claims or defenses, drawing adverse inferences, or precluding the submission of evidence or testimony. Furthermore, arbitrators should be provided with such obligation as active control of attorney ethics. Even arbitration institutions should participate by imposing on an attorney who is a repeat offender a suspension from appearing in future arbitrations. Unethical behavior will decrease through concerted actions among arbitrational institutions to introduce a uniform code of conduct and to empower arbitrators for more efficient regulation of attorney ethics.

• 무역상무연구
• /
• 제55권
• /
• pp.125-154
• /
• 2012

The International Chamber of Commerce (ICC) has published revised rules of arbitration, which come into force on 1 January 2012 (the ICC Rules 2012). The ICC Rules 2012 apply to all arbitrations commenced on or after 1 January 2012, unless the parties have agreed to submit their arbitration to the rules in effect on the date of their arbitration agreement (Article 6(1)). The ICC Rules 2012 explicitly require both the arbitrators and the parties to make every effort to conduct the arbitration in an expeditious and cost-effective manner. The changes will force participants to define more aspects of their claims and outline the merits of the dispute earlier on in the process. The Rules also contain new penalties for behaving in a way that undermines the process's efficiency. The new Rules permit the tribunal, when making allocating costs, to take into account the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner. Entirely new provisions relate to the emergency arbitrators, case management, and multi-party arbitrations. The ICC Rules 2012 take into account developments in arbitration practice and procedure, and in information technology, since the last revision of the rules in 1998, the aim being to provide modern and flexible procedures that promote efficiency in the arbitral process.

• 한국중재학회지:중재연구
• /
• 제13권2호
• /
• pp.211-234
• /
• 2004

When there is a dispute in international commercial contracts, the arbitration system, which is an ADR system, is often utilized. The Arbitration system can only be put to use when there is an arbitration agreement between the parties concerned, but even in this case, the one party of the contract tries to avoid the braking of the arbitration. In this case, separability doctrine and Kompetenz-Kompetenz doctrine can be used for the smooth operation of the Arbitration system. This paper reviews these two doctrines, taking a close look at UNCITRAL, ICC, America's FAA and case examples, and France's system and its case examples. U.S. has adopted separability doctrine for the Prima paint case but not the Kompetenz-Kompetenz doctrine. English has adopted separability doctrine for the Heyman case but not the Kompetenz-Kompetenz doctrine. However in France, both doctrines are adopted. France, which accords international arbitration the most highly favorable status of the three nations, has developed the legal framework that best promotes the public policy goal of encouraging the use of arbitration agreements in international commerce. In Korea, the above doctrines are prescribed in Article 17 of the arbitration law, as prescribed by the UNCITRAL Model law. However it takes the form of German laws. The adoption of the French system would have been wiser considering the promotion of the arbitration system.

• 한국중재학회지:중재연구
• /
• 제28권1호
• /
• pp.43-75
• /
• 2018

The Court of Arbitration for Sport (CAS) was created to focus on the procedural complexity in the resolution of sports-related disputes, confidentiality, the matter of expenses, and the necessity of prompt settlement in the field of international sports. The CAS had originally launched as one of bodies of International Olympic Committee (IOC), but later it became properly operational as an independent organization to facilitate sports-related disputes when the International Council of Arbitration for Sport (ICAS), which came into force in accordance with the Paris Agreement in 1984 and has acted in place of IOC, took responsibility for the administration and financing of the CAS. The CAS is composed of four divisions, the Ordinary Arbitration Division and the Appeals Arbitration Division, the Ad hoc Division created later in 1996 and the CAS Anti-Doping Division (CAS ADD) established as from 2016 only to conduct proceedings and to issue decisions on an alleged anti-doping rule violation, and two (Sydney and New York) permanent decentralized offices. The head office of the CAS is Lausanne, Switzerland. Since CAS ADD was established, CAS Ad hoc Division has had jurisdiction over the appeal case against a decision pronounced by the IOC, an NOC, an international Federation or an Organizing Committee for the Olympic Games. Although there are so many virtues of CAS as a resolution authority for sports-related disputes in terms of its organization, arbitration rules and procedures, it is also true that the CAS has not been showing the consistency. The CAS should overcome these issues through much more advanced system and its instant and fair decisions.

• 한국중재학회지:중재연구
• /
• 제33권1호
• /
• pp.3-22
• /
• 2023

The purpose of this study is to present implications by analyzing the Swiss Federal Court's annulment of the arbitration Awards in Court of Arbitration for Sport(CAS). As international interest in the sports sector increases, related disputes are also increasing. Therefore, the role of CAS specializing in sports disputes is becoming very important. In particular, the Swiss federal court's annulment of the arbitral awards made by the CAS could contribute significantly to the development of sports arbitration in the future. Looking at the case analyzed in this study, first of all, it is about the partiality of the arbitrator. The court judged that the arbitrator posted and shared racist articles on SNS, which could be sufficiently biased. Next, it is about the uncertainty of the arbitration clause. The arbitral award was finally canceled due to the issue of whether the CAS could make an arbitral award with jurisdiction over a clause that includes both dispute resolution through a sports organization and dispute handling in a national court. As a result of the analysis of this study, in the case of unclear arbitration provisions, it will be necessary to prepare an arbitration agreement. In addition, in the case of unclear arbitration provisions, it will be necessary to prepare a post-arbitration agreement. Finally, in order to revitalize sports arbitration, it will be necessary to train professional arbitrators in Korea, support them to work internationally, and establish specialized arbitration institutions.

• 통상정보연구
• /
• 제15권4호
• /
• pp.287-311
• /
• 2013

본 연구는 대위중재에서의 당사자적격성과 관련하여 복잡하게 전개될 수 있는 시비를 해결할 수 있는 방향의 설정에 대해 고찰하였다. 결함문제를 해결하기 위해 전례를 분석해 본 결과, 대위중재로 중재판정에 이른 사례는 찾아볼 수 있지만 대위중재 그 자체에 대한 판정이유는 불분명하다. 기존의 법원판례는 대위중재를 허용하는 듯 안 하는 듯 애매모호하고 대위중재의 허용여부에 대한 직접적인 법원의 판례는 찾아보기 힘들다. 또한 어느 한 국가의 판례로는 국제거래에서 발생하는 대위중재에 대해 단정할 수도 없다. 대위중재가 자동으로 허용되는지 아닌지 분명하지 않으면 전략적 차원에서 볼 때 분쟁해결절차의 경우의 수는 너무나 많아 수많은 사회적 비용을 치르게 된다. 따라서 향후 대위중재의 허용여부에 대한 국제적 통일지침의 확정이 긴요한 바, 본고에서는 자동차 대위중재제도, 공백과 상호주의 그리고 코즈정리의 관점에서 고찰한 결과 확정오퍼가설에 입각한 대위중재의 제도정립이 바람직하다는 결론에 이르렀다. 대위중재사건을 맡은 중재인들이나 판사들, 그리고 관련자들이 확정오퍼가설에 입각하여 대위중재에서의 당사자적격성을 판단한다면 본고에서 살펴본 대위중재와 관련한 문제점들을 대부분 해결할 수 있을 것으로 기대된다. 또한 국제적으로도 대위중재에 대한 확정오퍼가설이 확산됨으로써 대위중재의 일관된 해결원리가 확정오퍼가설로 수렴되기를 기대한다.

• 무역상무연구
• /
• 제55권
• /
• pp.63-93
• /
• 2012

The purpose of this paper is to examine the consideration factors, from both parties' perspective, to select the most appropriate arbitral institution when they inset an arbitration clause in their contract. Accordingly, the author analyzed the advantages of institutional arbitration compared to non-institutional arbitration. The typical advantages of institutional arbitration would include: $\bullet$ Benefits of using an established set of rules $\bullet$ Services provided by the institution $\bullet$ Low risks of obstruction $\bullet$ Enhancement of the possibilities of enforcement $\bullet$ Forecast of the estimated cost $\bullet$ Specially useful for existing disputes Next, this author examined the consideration factors when selecting the institution in respect of the following factors: $\bullet$ Institution's arbitration rules $\bullet$ Institution's rule regarding the appointment of arbitrators $\bullet$ Ability of administrators of each institution $\bullet$ Reputation of the arbitral institution and the likability of enforceability of its award $\bullet$ Cost $\bullet$ Choice of the arbitral institution in relation to the choice of place of arbitration Finally, this author reviewed Model Arbitration Clause of major international or local Institutions, including ICC, AAA, LCIA, KCAB, CIETAC, ICSID and WIPO. Further examination was given to the selection of the numbers of the arbitral tribunal, the seat of arbitration and the language of arbitration, according to the designated articles in each institution's arbitration rules.