• 한국중재학회지:중재연구
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• 제7권1호
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• pp.247-293
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• 1997

• 한국중재학회지:중재연구
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• 제18권3호
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• pp.23-50
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• 2008

In a global economy where, private parties increasingly favour arbitration over litigation, many foreigners are unfortunately reluctant to arbitration with China's parties because the China national courts do not scrutinize the merits when deciding whether to recognize and enforce foreign awards. As a result, the finality of arbitral awards hangs in uncertainty. Overseas concern is that China's courts may abuse "Public Policy" grounds provided for in the New York Convention to set aside or refuse to enforce foreign awards. The purpose of this article is to examine the distrust to enforcement of arbitral awards whether that is just an assumption. In spite of the modernize and internationalize her international arbitration system and many reforms provided in the related law and rules, the most vexing leftover issues are caused of the lack of "rule of law" in China. This situation imply the risk of pervert 'Public Policy' as the ground for refusing enforcement of arbitral awards. Some cases reflect the fear. But it is unclear whether those cases caused from the lack of "rule of law" in China. Same uncertainty present between Hon Kong-China under th one country-two legal system after the return of Hong Kong to China on 1 July 1997. While China is striving to improve its enforcement mechanism in regard to the enforcement of arbitral awards, it can only be expect following the establishment of rule of law in the future.

• 한국중재학회지:중재연구
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• 제29권4호
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• pp.101-120
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• 2019

This study examines the development strategies of the arbitration industry in Singapore and Hong Kong, and its purpose is to provide implications for the development of the arbitration industry in South Korea. The main strategies implemented by Singapore and Hong Kong to develop the arbitration industry are as follows: first, improvement of the arbitration law system; second, active support of the government for promoting the arbitration industry; third, build up of an effective arbitration expert training system; and fourth, an arbitration-friendly attitude of the court. In order for South Korea to become an international arbitration hub in Northeast Asia, it is necessary to refer to the above-mentioned strategies. In addition, South Korea needs to develop marketing strategies that can differentiate itself from Singapore and Hong Kong, such as the development of an arbitration system in connection with the 4th Industrial Revolution, differentiation of the disputes sector, use of geographical advantages and a penetration pricing strategy, and support of the Korean Commercial Arbitration Board. In terms of marketing strategy, there are few studies on the development strategy of the arbitration industry in South Korea. In this respect, this study has academic value and differentiation.

• 한국중재학회지:중재연구
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• 제23권4호
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• pp.191-209
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• 2013

The amount of international trade conducted through Hong Kong (HK) is increasing, thus rendering the legal framework governing contracts of sale between Mainland China (China) and HK is of particular importance. The status of HK under the CISG is currently unclear, however. First, the CISG entered into force in China in 1988. This important development had no legal effect for HK though as China lacked the power to enter into international conventions for HK. Second, the "Letter of Notification" deposited to the Secretary-General of the UN referred a list of treaties to be applied to HK, taking effect from July 1, 1997. This list, however, made no mention of the CISG. Third, China made a reservation in Article 95 of the CISG. Pursuant to Article 1(1)(b) of the CISG, the CISG cannot apply to HK. As a result, the Chinese Arbitral Tribunal apply the Chinese law according to the closest connection principle with the contract. In this case, attention must be given to the different result to which the CISG is applied. Liability for damages pursuant to the Chinese Contract Law (CCL) is just the same as Article 74 CISG, but CCL does not govern the case with substitute transaction and without substitute transaction when the contract is avoided. Therefore, the contract should be governed by the CISG from a business perspective when a contract is concluded between China and HK; otherwise, a promisee could not be fully compensated for all loss incurred.

• 한국중재학회지:중재연구
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• 제29권1호
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• pp.53-70
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• 2019

This study analyzed some cases of the China International Economic and Trade Arbitration Commision (CIETAC) related to the application of the Contracts for the International Sale of Goods (CISG). As a contracting party of the CISG, China has accumulated a considerable amount of experience in applying CISG through commercial arbitrations. This study sought to understand how CISG is operated in commercial arbitration in China. By analyzing actual cases in China, Korean commercial arbitration can avoid mistakes and further improve. This study of Chinese cases will give some useful information for Korean companies. As defined by the CISG, the applicability can be divided into direct application and indirect application. When China joined the CISG, it made a reservation out of Article 1(1)(b). Korea and China are contracting parties to CISG and CISG is, therefore, directly applied. It is beneficial for Korea to understand how CIETAC is indirectly applied in China then. Some of the results of this study are as follows: First, CIETAC made a correct judgment most of the time on the direct application of CISG. However, there were mistakes in the judgment of the nationality of the parties in a few cases. The parties must clearly define applicable laws when entering into a contract. Secondly, the 2012 "CIETAC Arbitration Rules" was revised so that the "party autonomy" was introduced into Chinese commercial arbitration concerning indirect application. Therefore, the principle of autonomy of the parties was not fully recognized in the past judgments. Instead, the domestic law of China was applied in accordance with the reservation of Article 1(1)(b). Thirdly, China did not explain the application of CISG in Hong Kong, which led to ambiguity in concerned countries. Therefore, it is necessary to confirm the status of CISG in Hong Kong. In addition, Korean companies should clearly define the applicable laws when dealing with Hong Kong companies.

• 한국중재학회지:중재연구
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• 제30권1호
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• pp.67-86
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• 2020

In the case of multiple commerce contracts in commerce, as well as multiple contracts related to it, a solution for the merging of arbitration proceedings is necessary in order to ensure uniformity of dispute resolution. Since the arbitration proceedings are based on the parties' agreement, no merging of two or more arbitration proceedings may transpire unless all parties agree. Claims of merging in arbitration proceedings lead to problems such as lack of party autonomy, resulting from lack of consent of the parties to merging, and how to appoint an arbitrator in a multilateral arbitration proceeding. Many of the major arbitration bodies have recognized the significant benefits of the terms of consolidation, and have recently revised the Arbitration Rules to include or extend existing clauses to reflect the needs of the parties. This study introduces the merging provisions of several selected major arbitration rules, such as the ICC, Switzerland, SCC, LCIA, SIAC, HKIAC, ACICA, and UNCITRAL rules, and looks at the main similarities and differences among the rules.

• 한국중재학회지:중재연구
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• 제29권4호
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• pp.121-140
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• 2019

China, Hong Kong, Macao, and Taiwan have a singular political relationship. This distinctive relationship creates a unique impact on the nationality of the arbitral awards among the said countries. Each of these regions does not adopt the arbitral award of the other party as either a foreign arbitration award or a domestic arbitration award, but separately adopts the arbitral award in different jurisdictions within the same country. Therefore, in order to approve and enforce their arbitral awards in other areas, they have no choice to apply special laws or the conventions concluded between them, neither the New York Convention nor the individual arbitration laws in those areas. Therefore, this paper reviewed the convention and self-established laws among China, Hong Kong, Macao, and Taiwan regarding the approval and execution of the other arbitral awards. In addition, the domestic laws in China, Hong Kong, Macao, and Taiwan are compared with the New York Convention to ascertain the criteria for distinguishing domestic and foreign arbitral awards. This study also compared and analyzed what criteria were established for the determination of the nationality of the arbitral awards in the domestic law or the convention concluded in pan China. Through the analysis of these contents, the characteristics and problems of criterion for the determination of nationality among China, Hong Kong, Macao, and Taiwan were identified. Based on the results, this study examined the precautions Korean companies entering these regions should use in the arbitration system in these areas.

• 한국중재학회지:중재연구
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• 제18권1호
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• pp.121-145
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• 2008

Northeast Asia is increasingly making a transition to distinctive and crucial region in the 21st Century and growing into one of world's top three economic spheres along with the EU and NAFTA. In 2003, Korean government announced the Northeast Asian economic hub country plan as an important agenda. As a means of coping with the changing global environment, Korean government designated Incheon in 2003 as the country's first Free Economic Zone ahead of Busan and Gwangyang Bay in the south of the country because Incheon has a geographical advantage linking North America and Europe with Incheon International Airport and Incheon Seaport. The purpose of this paper is to make research on establishment and operation of an arbitral body entitled ${\ulcorner}International Arbitration Center{\lrcorner}$ (IAC) within Incheon Free Economic Zone(IFEZ). For the purpose of this, the writer in this paper, reviewed the necessity of the IAC's establishment and its legal basis as well as the role and function of the Center. Also, the writer presented plans for how to operate the IAC and how to cooperate with the key arbitral organizations of foreign countries for the settlement promotion of commercial disputes including trade and investment. With development of the IFEZ, world-renowned enterprises will invest in the Incheon economic bloc and conduct economic activities, business operation, marketing, logistics, financing, etc. In this connection, diverse types of commercial disputes are expected to occur between foreign companies entering the IFEZ and Korean firms. In this connection, the Korean Commercial Arbitration Board(KCAB) has been operating its liaison office in the IFEZ since 2004. However, in view of the increasing arbitration demand, the IAC should be set up in the IFEZ in the near future by the positive support of the government in the respect of both administration and finance because the free economic zone-related law provides for the installation of arbitration organization. For the success of the IAC, the Center will have to provide not only good quality of arbitral services that can satisfy arbitration parties but also need to conduct researches and make efforts so that arbitration can be utilized well in the IFEZ. If the IFEZ can provide advantageous business environments to those multinational enterprises intending to the Incheon economic bloc, the IAC will also contribute to the settlement of commercial disputes arising from the Gaeseong Industrial Complex in North Korea in view of the geographical advantage and logistic benefit of the IFEZ. Finally, this paper also suggests a new model for a joint dispute resolution system by the initiative of Korean government and Korean arbitral organizations for the settlement of commercial disputes within Northeast Asia, for which the CAMCA(Commercial Arbitration and Mediation Center for the Americas) of NAFTA can be a good example.