• Journal of Arbitration Studies
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• v.8 no.1
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• pp.243-267
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• 1998

• Journal of Arbitration Studies
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• v.25 no.2
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• pp.97-118
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• 2015

As China has quickly emerged as a global economic power, the total number of international commercial disputes arbitrated by Chinese arbitral institutions has increased dramatically. Along with this, the annulment procedure of arbitral awards in China have been newly brought to the fore. In accordance with the historical background and the demand of the times, the Chinese annulment procedure of arbitral awards reveals distinctive Chinese features. Although it was enacted in the face ofof an unwarranted prejudice against the dispute settlement system by arbitration as well as a deep mistrust of domestic arbitral institutions, the annulment procedure of arbitral awards showed a certain degree of justification and rationality in its initial stages of legislation. However, it is also the case that it has not adapted well to new domestic or foreign arbitration circumstances in the last twenty years. At present, there is a keen interest in revisions to and debates on arbitration law of China. It is necessary to take an active part in the amendment discussion and process of arbitration law. Moreover, we need to reform the annulment procedure of arbitral awards in order to meet the global trend of arbitration law.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.161-184
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• 2020

In the process of the annulment of arbitral awards, the Swiss Federal Supreme Court contributes to keeping Switzerland as a venue for international arbitration. Challenges to an award rendered in Switzerland are handled by the Swiss Supreme Court only. Furthermore, the Swiss law provides extremely limited grounds (PILA 190) for the potential challenge of the award and those are different from what model law countries have. For example, violations of the parties' agreed procedural arrangements will not be grounds for the annulment of an award in Swiss. In arbitration, the intervention of a national court is necessary to protect justice but at the same time, it can impede the process of arbitration, even making it useless. Limited intervention of the Swiss Supreme Court protects the efficiency, autonomy, and justice of international arbitration. International Arbitration has to be simple and fast to solve complex international commercial problems and to promote trade. Therefore, the process and technique to be applied on an Arbitration-friendly Swiss court should be considered.

• Journal of Arbitration Studies
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• v.21 no.2
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• pp.3-25
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• 2011

국제상사중재를 다루는 중재판정부의 중재인은 당사자들 간의 유효한 합의를 통하여 구속력 있는 중재판정을 행사할 권한을 가진다. 중재계약에 다른 정함이 없는 한 중재인의 판정권에 대한 결정은 중재인 자신이 내린다. 중재인은 중재합의에 의하여 그 권한이 부여된 사건에 대해서만 권한을 갖게 되나, 명시적으로 그 권한에 따라야 하는 사건 외에 당해 사건을 해결하기 위하여 처리하지 않으면 안 될 모든 문제, 즉 당해 사건과 절단될 수 없는 형태로 연계되어 있는 문제 또는 그 부차적인 조건의 문제를 해결하여야 하는 책임을 지게 된다. 중재판정부는 그 자율적인 권한범위를 규율하는 권한을 가지며, 그 권한 속에는 중재합의의 존부 또는 효력에 관한 것도 포함된다. 중재인의 판정권에 이의가 있는 당사자는 법원에 중재계약의 부존재 무효 확인을 청구할 수 있고, 중재판정이 이미 내려진 경우에는 중재판정취소의 소를 제기하거나, 집행판결에서 이의를 제기할 수 있다. 우리 중재법의 입장에서 국제중재판정의 판정기준에 대해 는 중재판정부는 당사자들이 지정한 법에 따라 중재판정을 내려야 하며, 특정 국가의 법 또는 법체계가 지정된 경우에 달리 명시되지 아니하는 한 그 국가의 국제사법이 아닌 분쟁의 실체법을 지정한 것으로 보고 있다. 국제중재의 법적 안정성, 예측가능성의 관점에서 실정법을 그 판단의 규준으로 삼는다. 한국의 국제중재의 특성은 국제성 중립성, 보편성을 보장받는 점이다. 중재인 구성원은 세계 각국의 국적을 가진 전문 중재인들이 참가하고 있다. 중재절차에 있어서도 중재인은 실체법이나 절차법, 또는 법률의 상충에 관계없이 어느 특정법률을 적용하도록 강요받지 않고 각각의 경우에 가장 적합한 법률에 따르며 중재판정부의 진행절차는 국제중재규칙에 의해 규율된다.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.51-70
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• 2020

The Mediation-Arbitration hybrid is becoming more popular since it makes an amicable relationship and thorough statement possible. The Mediation-Arbitration hybrid has been used to take advantage of both dispute resolution methods. In a Med-Arb process, negotiating a resolution to disputes is attempted with a mediator's help. If the mediation ends in an impasse or issues remain unresolved, parties can move on to arbitration. Med-Arb can also be cost-effective when disputants hire one person to serve as mediator and arbitrator (Med-Arb-Pure). However, it can disturb the fairness and neutrality of arbitrators, and awards can be annulled. Indeed, "Award by Consent" is different from the "Med-Arb-Pure" process. Arbitrators easily confuse them. Only the parties settle on the arbitral proceedings' course, and the arbitrator can help them (award by consent). The role and skill of a mediator are different from an arbitrator's. Disputants have the right to use a mediator who specializes in mediation. Moreover, mediation communication confidentiality is the essential value of mediation, and this should be protected. Therefore, in the process of "Med-Arb," separation between mediating and arbitrating is a better choice to specialize in each expertise. In this process, "Med-Arb" can be an affordable, expeditious, proper, and effective method of resolving international commercial disputes and continuing ADR prime time.

• Journal of Arbitration Studies
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• v.27 no.1
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• pp.59-84
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• 2017

The effects of an arbitration agreement depend on the legislative policy of the nation where arbitral awards are made and where awards are worked out in the private procedures. According to the main body of Article 35 of the Korean Arbitration Act, arbitral awards have the same effects on the parties as the final and conclusive judgment of the court. This is only possible if the awards are formed by satisfying all the legal requirements, have gone into effect, and have become final and conclusive. It is for the legal stability and the effectiveness of the settlement of disputes that the Act grants arbitral awards. While investigating the effects of an arbitral award, the character of the arbitration in which the party's autonomy applies should be considered, along with the substance of the disputes which parties intend to resolve by an arbitration agreement. The proviso of Article 35, which was added in the 2016 Act, says that the main body of the Article shall not apply if recognition or enforcement of arbitral awards is refused under Article 38. Two stances have been proposed in interpreting the proviso. One of them is that there are grounds for refusing the recognition and enforcement of the awards. The other one is that the ruling of the dismissal of a request for enforcement has been final and conclusive. According to the former, it is really unexplained as to its relations with the action for setting aside arbitral awards to court and the distinction between nullity and revocation, and so on. Therefore, its meaning must be comprehended on the basis of the latter so that the current Act system with revocation litigation could be kept. The procedures of setting aside, recognizing, and enforcing arbitral awards are independent of one another under the Act. It is apprehended that the duplicate regulations may lead to the concurrence or contradiction of a court's judgment and ruling. Thus, we need to take proper measures against the negative sides by interfacing and conciliating these proceedings.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.3-20
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• 2010

Traditionally, finality has been regarded as one of virtues of arbitration. However in many cases absence of appeal process in arbitration is also a factor deterring people from choosing arbitration. Even though unsatisfied party may resort to a court for annulment of an award, it is allowed only when there are procedural defects. When there are substantive defects in matters of fact or matters of law, it is not easy or almost impossible to bring the case on the table again. The introduction of arbitration appeal process has been discussed in international arbitration fora, and some countries have already been adopting appeal process. Realizing this trend, it is time for us to consider adopting similar appeal process. Arbitration being based on the party autonomy, there's no good reason to prohibit appeal when the parties agree to do so. Arbitration appeal should be allowed within arbitration system itself, rather than resorting to a court, so that many virtues of arbitration can be maintained in the appeal. In designing an arbitration appeal system, following measures should be considered: minimum amount in dispute to trigger the right of appeal should be set in order to reduce the volume of appeal; losing appellant should be responsible for the legal cost of his opponent in order to deter non-meritorious appeals; time limits on initial appeal application and subsequent briefs should be set in order to accelerate appeal process; and, appeal tribunals should be composed of more experienced arbitrators in order to provide more accurate award. If we are equipped with a well designed appeal process within arbitration system, Korea will be able to emerge as an attractive international arbitration forum.