• Journal of Arbitration Studies
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• v.22 no.2
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• pp.53-77
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• 2012

Competence-competence refers to an arbitratorpower to determine whether he or she has jurisdiction to decide a controversy. Although arbitrators power to rule on their own jurisdiction is generally recognized throughout the world, in the United States, neither the courts nor legislative bodies have recognized its significance or the reasoning behind its widespread adoption. Section 3 of the Federal Arbitration Act (FAA) is notorious among arbitration statues for its failure to incorporate competence-competence. When courts rule on an issue of competence-competence, it is referred to as a question of who decides the arbitrability of the case. In the United States, the use of competence-competence as a term of art is still limited to scholarly writings. The answer to the competence-competence inquiry is found in an interpretation of section 3 of the FAA which empowers the courts to decide arbitrability issues. The cases of the Supreme Court and most commentators interpreted sections 2 and 3 of the FAA as conferring issues of arbitrability on the federal courts, including the ability to rule on the validity and scope of the arbitral agreement. Traditionally, United States courts have denied the competence-competence to arbitral tribunal. Recently, however, they have confounded the rules by placing primary importance on the arbitration agreement between the parties. The Supreme Court, in a series of cases, has underscored the necessity of giving full effect to the intentions of the parties as expressed in their agreement to arbitrate. The result of the Supreme Court's emphasis on contractualism in determining the issue of arbitrability is most evident in the Courtdecision in the First Options case. Under First Options, courts are to decide arbitrability issues unless there is a clear and unmistakable contractual assignment of these issues to the tribunal itself. The Court is appraised that it has attempted to compromise between contractual freedom in the arbitration setting and the rule of law that is necessary in a society that depends on the concept of ordered liberty. In the decision in Howsam, the Court clarified the definition of arbitrability by attempting to draw a clear line between questions of arbitrability that are to be decided by courts and those matters that bear on the allocation of decisions between courts and arbitrators but are not questions of arbitrability.

• Journal of Arbitration Studies
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• v.24 no.1
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• pp.3-24
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• 2014

The Arbitration Act of Korea entered into force on December 31, 1999. It was modeled after the UNCITRAL Model Arbitration Law to meet the goal of the internationalization of the arbitration system of South Korea mainly in terms of the System (Alternative Dispute Resolution) Act. In general, a hearing of arbitration is made up of an arbitrator, claimant, and respondent. This is accomplished in a single core. The advantages of arbitration are low cost and confidentiality. In addition, there is the participation of experts and rapidity with a single core agent. However, under the current Arbitration Act, there is no provision expressly relating to the qualifications of arbitrators. This should be accomplished by the arbitration act enforcement ordinance. Following specific details of the 'party' in conjunction with all the provisions of the Arbitration Act, Article 1 should be revised in a timely manner so that "conflict of private law" covers cases in which a dispute between the parties is desirable. In addition, in Article 3 the phrasing of "also dispute 'judicial'" should be revised to over disputes between parties. Furthermore, the provisions of Article 40 are described in the Supplement and so it is preferable to address Supplementary Delete. In addition, this study will analyze ADR in Japan and present a plan to establish a law to resolve disputes outside of court in that country. Therefore, the objective of this study is to assist in the study of legislating fundamental law for alternative dispute resolution. In spite of this, there are many in business and academia who would like to modify the arbitration system in South Korea to improve its function. There is much interest in accomplishing this,so proposals for legislation should continue to be made.In order to accomplish this, the arbitration systems of developed countries such as the United States can be used as a model. It can be seen that despite the idea that the parties involved engage in arbitration autonomously, many elements of the process from the selection of the arbitrator of the arbitral tribunal are specified in legislation and thus it is necessary to develop legislation that will allow arbitration to perform its intended function. Any given arbitral tribunal can be specialized, typically in a case an arbitrator who is an expert in the field is selected. This helps to avoid complaints concerning the results of the arbitration. In the case of international arbitration, however, this provision is often not employed and instead it is necessary to provide a Schedule and Supplement concerning international arbitration. Finally, the promotion of the enactment of the Arbitration Law Enforcement Ordinance must be a top priority in order to ensure proper implementation of the arbitration law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.39
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• pp.179-220
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• 2008

The notion of the 'court' is most unique to ICC arbitration. This paper focuses on what the court is and how it works and what the role and the duties of the Court under the ICC arbitration imply for the KCAB International Arbitration Rules. The Court is an administrative body that administers arbitrations taking place under the ICC Rules of Arbitration. The Court consists of 126 members from 88 countries around the world. Court members participate in decision-making process by way of attending the committee sessions and plenary sessions. At the Court's committee sessions, the Court fixes advance on costs; reviews the prima facie existence of arbitration agreements; fixes the place and language of arbitration, and the number of arbitrator(s); confirms and approves arbitrators; scrutinizes draft awards, determines the costs of arbitration; decides on extensions related to Terms of Reference, draft awards and correction and interpretation of the awards. At the Court's plenary sessions, the Court performs only two responsibilities: the challenge or replacement of arbitrators or the scrutiny of draft awards. The Court is required to scrutinize draft awards involving states or state entities, drafts with huge amounts in dispute or complex technical or legal questions, and as well as draft awards to which a dissenting opinion has been attached. Turning to the KCAB International Arbitration Rules, Article 1(3) provides that the KCAB shall establish an International Arbitration Committee. Further, it is provided that the KCAB shall consult with the said Committee with respect to challenge and replacement/removal of arbitrators pursuant to Article 1(3). The notion and role of the International Arbitration Committee was originally adapted from the Court to ICC arbitration, but its role was quite reduced in the process of enactment of its Rules. Accordingly, I examined the detailed roles of the Court to ICC arbitration in this paper and hereby suggest that the KCAB International Arbitration Rules shall be amended in the following ways: The Secretariat of the KCAB shall: fix advance on costs at the first stage and the costs of arbitration at the final stage of the proceedings; determine the number of arbitrators; review the prima facie of existence of arbitration agreement; confirm arbitrators; decide extensions related to time table, draft awards and correction and interpretation of the awards. I, also, suggest that the arbitral tribunals shall fix the place of arbitration and the language of arbitration and make a final decision on the validity of arbitration agreement. With regard to the International Arbitration Committee, it is desirable for its Rules to empower the Committee to recommend any prospective arbitrator and to review and decide challenge and replacement/removal of arbitrators.

• Journal of Korea Port Economic Association
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• v.23 no.3
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• pp.29-51
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• 2007

The purpose of this study aims to explore shipowner's lost profit and its claim resulted from delay in redelivery under time charter with the Achilleas case. In this case, the charterers submitted that there was an established prima facie measure of damages in cases of late delivery, namely the difference between the market rate and the charter-party rate for the period from the time when the vessel should have been delivered until the time of her actual redelivery. An award for lost profit in respect of a subsequent charter could only be made under the second limb because the charterers had not been told, at or before the making of the addendum, that the owners were going to enter into a subsequent fixture and that it was critical that redelivery take place on time. However, the owners said their losses that was a not unlikely consequence of the charterers' breach. There was no special rule that the first limb could only lead to damages calculated by taking the difference between the market and the charter-party rate for the overrun. To award damages in the Achilleas case on the basis of the difference between the market and the charter rate for the overrun would compensate the owners for only a fraction of the true loss caused by the breach.

• Korea Trade Review
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• v.41 no.5
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• pp.15-39
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• 2016

Over the past couple of decades, we can see the emergence of a new lex mercatoria. It consists of international conventions or treaty, model laws and international principles. And such new lex mercatoria is driven by the international institutions such as UNCITRAL, UNIDROIT and ICC. The international convention and international principles in the field of international commercial transaction are considered : UN Convention on Contracts for the International Sale of Goods(CISG) and The UNIDROIT Principles(PICC Principles). The former is the statue law for the latter, and the latter sometimes supports the former as an interpretation and supplementation of CISG. So, the purpose of this article is to evaluate and investigate the current status of CISG and PICC Principles in terms of application and interpretation principles. The results are as follows. First, PICC are used for the interpretation and supplementation of international law such as CISG, but CISG is a law, not a rule. Second, CISG and PICC Principles are not often chosen when parties chose the law governing their contract. The parties very often chose a national law ; the number of the parties choosing CISG and PICC Principles as a governing law was very low.

• The Korean Journal of Nuclear Medicine
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• v.39 no.6
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• pp.473-480
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• 2005

Purpose: Adenosine myocardial perfusion SPECT has proven to be useful in the detection of coronary artery disease, in the follow up the success of various therapeutic regimens and in assessing the prognosis of coronary artery disease. The purpose of this study is to define the reproducibility of myocardial perfusion SPECT using adenosine stress testing between two consecutive Tc-99m sestaMIBI (MIBI) SPECT studies in the same subjects. Methods: Thirty patients suspected of coronary artery disease in stable condition underwent sequential Tc-99m MIBI SPECT studies using intravenous adenosine. Gamma camera, acquisition and processing protocols used for the two tests were identical and no invasive procedures were performed between two tests. Mean interval between two tests were 4.1 days (range: 2-11 days). The left ventricular wall was divided into na segments and the degree of myocardial tracer uptake was graded with four-point scoring system by visual analysis. Images were interpretated by two independent nuclear medicine physicians and consensus was taken for final decision, if segmental score was not agreeable. Results: Hemodynamic responses to adenosine were not different between two consecutive studies. There were no serious side effects to stop infusion of adenosine and side effects profile was not different. When myocardial uptake was divided into normal and abnormal uptake, 481 of 540 segments were concordant (agreement rate 89%, Kappa index 0.74). With four-grade storing system, exact agreement was 81.3% (439 of 540 segments, tau b=0.73). One and two-grade differences were observed in 97 segments (18%) and 4 segments (0.7%) respectively, but three-grade difference was not observed in any segment. Extent and severity scores were not different between two studios. The extent and severity scores of the perfusion defect revealed excellent positive correlation between two test (r value for percentage extent and severity score is 0.982 and 0.965, p<0.001) Conclusion: Hemodynamic responses and side effects profile were not different between two consecutive adenosine stress tests in the same subjects. Adenosine Tc-99m sestaMIBI SPECT is highly reproducible, and could be used to assess temporal changes in myocardial perfusion in individual patients.

• The Korean Journal of Nuclear Medicine
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• v.33 no.3
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• pp.247-261
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• 1999

Purpose: The aim of this study was to evaluate the normal values of regional cerebral blood flow (rCBF) and cerebrovascular reserve (CVR) in normal children to aged volunteers using Tc-99m HMPAO, Materials and Methods: Thirty four right-handed normal volunteers (20 males, 14 females, mean age $40.3{\pm}24.9$ years, range 4 to 82 years) were underwent rost/acetazolamide (ACZ) brain SPECT using Tc-99m HMPAO and the sequential injection and subtraction method. rCBF was estimated on the basis of a semiquantitative approach by means of right/left ratio, region/cerebellum and region to whole brain ratios in (rental, parietal, temporal, and occipital lobes, basal ganglia, thalami, and cerebellum. CVR was measured by means of % perfusion increase calculated as % mean count change compared to rest rCBF in each regions. Results: Mean values of right to left ratios range from 1.004 to 1.018, rCBF was highest in cerebellum and lowest in basal ganglia and thalami. Frontal and temporal rCBF decreased while occipital and thalamic rCBF increased according to age. No sexual difference of rCBF was noted. Mean CVR was $29.9{\pm}12.9%$. Mean CVR significantly increased to late teens, and declined thereafter. After 6th decade, CVR in both frontal lobes, left parietal lobe and right basal ganglia decreased significantly with advancing age. There was no sexual difference of CVR. Conclusion: Quantitative assessment of CVR was possible by ACZ Tc-99m HMPAO brain SPECT. It revealed that rCBF and CVR changed according to age in normal Korean volunteers. There was no sexual difference.

• The Korean Journal of Pharmacology
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• v.25 no.1
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• pp.43-51
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• 1989

Responsiveness of muscarinic and alpha adrenoceptor activation on endothelial cells was studied in isolated canine renal artery rings. Ach (10-100 nM), dose dependently, relaxes endothelial intact rings precontracted with phenylephrine ($IC_{50}$ of Ach was 34.5 nM). Selective mechanical destruction of the endothelium transformed the activity of this substance from vasodilatation to vasoconstriction. Acetylcholine induced relaxations could be selectively inhibited competitively by atropine, but could not be inhibited by cyclooxygenase inhibitor. Methylene blue, however, an inhibitor of soluble guanylate cyclase activity, inhibited Ach as well as sodium nitroprusside (SNP) induced relaxation. Relaxation produced by prostacyclin was not modified by methylene blue. On the other hand, alpha adrenoceptor agonist did not relax but contract canine renal artery rings possessing an intact intima precontracted with U-46619. Clonidine, however, selective alpha-2 adrenergic agonist, is more susceptible than phenylepherine, selective alpha-1 adrenergic agonist, to the inhibitory effect of contraction. These results suggest that in canine renal artery rings, 1) muscarinic receptor is responsible for releasing endothelium dependent relaxation factor (EDRF). 2) alpha-1 and alpha-2 adrenergic receptors are present in canine renal artery. 3) relaxation via EDRF is antagonized by methylene blue, providing further evidence that EDRF acts through a cGMP mechanism.