• Journal of Arbitration Studies
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• v.14 no.1
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• pp.273-314
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• 2004

There is a belief in the construction industry that the traditional court system may not be an ideal forum to effectively and efficiently resolve construction disputes due to the protracted proceedings and the three tier appeal system resulting in a long delay in the final and conclusive settlement of the dispute, relatively high costs involved, the lack of requisite knowledge and experience in the relevant industry, etc. Hence, they assert that certain alternative dispute resolution ('ADR') methods, such as mediation, conciliation, arbitration or a new system for dispute settlement in the form of any combination thereof should be developed and employed for construction disputes so as to resolve them more promptly and efficiently to the satisfaction of all the disputants concerned. This paper discusses certain merits of such assertions and the need for additional considerations for effective resolution of the construction disputes in light of the complexity of the case, importance of expert witnesses, parties' relationship and non-level playing field of the construction industry and so on. At the same time, however, given the inherent nature of disputes rendering the parties involved in an adversarial position, it would rather be difficult, if not practically impossible, to satisfy all the parties concerned in the dispute. Accordingly, in this study, it is also purported to address the demerits of such assertions by studying the situation from a more balanced perspective, in particular, in relation to the operation of such ADRs. In fact, most of such ADRs as stipulated by special acts, such as the Construction Industry Basic Act of Korea, in the form of mediation or conciliation, have failed to get support from the industry, and as a result, such ADRs are seldom used in practice. Tn contrast, the court system has been greatly improved by implementing a new concentrated review system and establishing several tribunals designed to specialize in the review and resolution of specific types of disputes, including the construction disputes. These improvements of the court system have been warmly received by the industry. Arbitration is another forum for settlement of construction disputes, which has grown and is expected to grow as the most effective ADR with the support from the construction industry. In this regard, the Korean Commercial Arbitration Board ('KCAB') has established a set of internal rules end procedures in operation to efficiently handle construction disputes. Considering the foregoing, this paper addresses the most important elements of the arbitration, i.e., arbitration agreement and arbitral award, primarily focusing on the domestic arbitrations before the KCAB. However, since this parer is prepared for presentation at the construction disputes seminar for the public audience, it is not intended for academic purposes, nor does it delve into any specific acadcmic issues. Likewise, although this paper addresses certain controversial issues by way of introduction, it mainly purports to facilitate the understanding of the general public, including the prospective arbitrators on the KCAB roster without the relevant legal education and background, concerning the importance of the integrity of the arbitration agreement and the arbitral award. In sum, what is purported in this study is simply to note that there are still many outstanding issues with mediation, conciliation and arbitration, as a matter of system, institutional operation or otherwise, for further study and consideration so as to enhance them as effective means for settlement of construction disputes, in replacement of or in conjunction with the court proceeding. For this purpose, it is essential for all the relevant parties, including lawyers, engineers, owners, contractors and social activists aiming to protect consumers' and subcontractors' interests, to conduct joint efforts to study the complicated nature of construction works and to develop effective means for examination and handling of the disputes of a technical nature, including the accumulation of the relevant industrial data. Based on the foregoing, the parties may be in a better position to select the appropriate dispute resolution mechanism, a court proceeding or in its stead, an effective ADR, considering the relevant factors of the subject construction works or the contract structure, such as the bargaining position of the parties, their financial status, confidentiality requirements, technical or commercial complexity of the case at hand, urgency for settlements, etc.

• Journal of the Korea Society of Computer and Information
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• v.19 no.4
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• pp.139-147
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• 2014

Medical disputes the problem that occurs essentially among the rapidly increasing of the demand for health care and the attention of the public health. The subject of dispute is mostly criminal penalties and civil redress due to a physician's medical malpractice, resolved by agreement was prioritized. They trying to solve through the litigation and exercise the skills. But, the lack of clear standards and related legislation make difficult to solve the problem. for this, "The Act of Medical Malpractice Damage's Relief and Mediation for Medical Dispute Resolution" (Medical Disputes Adjustment Act) was enacted in April 7, 2011 and performed in Apr. 8, 2012. To solve the problem autonomously between the parties. It is the legislative intent such as mediation or arbitration to solve the conflict between the parties. But there are some problems that examined from the perspective of constitutional review with the criminal and civil problems. Therefore, this paper will find out the legal issues about Medical Dispute Adjustment Act and the constitutional and civil issues. And want to expect to be prepared the more stable and efficient solution of medical disputes.

• Journal of Arbitration Studies
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• v.30 no.3
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• pp.137-167
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• 2020

As arbitration is widely used as an alternative dispute resolution mechanism, third-party funding, which is a person or entity with no prior interest in the legal dispute providing non-recourse financing for one of the parties, has become more prevalent with increasing costs of international arbitration. In particular, Hong Kong and Singapore are the first jurisdictions to adopt and implement legislations to specifically permit third-party funding of international arbitration. Thus, in this article, relevant issues with respect to third-party funding of arbitration, such as, conflicts of interest, disclosure, privilege and confidentiality of information, cost allocation, security for costs, and control over arbitral proceedings by the third-party funder are examined with pertinent provisions of the recent legislations. While the respective legislations of Hong Kong and Singapore may not directly address every issue raised by third-party funding of arbitration, as they make it clear that such is no longer prohibited by the old common law doctrines of champerty and maintenance, they have clarified conflicting case law as well as proactively promoted themselves as leading seats of international arbitration.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.77
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• pp.43-67
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• 2018

Arbitration is one of alternative dispute resolution systems which settle a dispute by arbitrators(private persons) based on a contract between contracting parties without a judicial litigation system involved. As a valid arbitration agreement is an essential requirement for commencement of arbitration, the first thing to be determined is whether there is a valid arbitration agreement or not when a dispute is submitted. A consumer arbitration agreement usually exists as an arbitration clause in an adhesive contract between consumers and a seller. When consumers buy a product from a seller, they are requested to agree on a general terms and conditions which are unilaterally drafted by a seller in advance. These terms and conditions are not negotiable because it is an adhesive contract and consumers are placed in "take-it-or-leave-it" position. Therefore, even though there is an arbitration agreement between consumers and a seller, it has to be carefully considered whether it has a legal effect or not. In this respect, a court will examine if an arbitration agreement has procedural unconscionability and substantive unconscionability. Therefore, as U.S is a well-advanced and arbitration-friendly country, this paper analyzes four U.S cases to find out (i) what a court considers, (ii) how a court examines and interprets procedural and substantive unconscionability and (iii) if there has been a change in regard to a court's decision. By doing so, it will provide some suggestions and guidelines for a consumer arbitration in Korea.

• Korea Trade Review
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• v.43 no.5
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• pp.139-158
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• 2018

As trade volume increases and the business environment becomes more complex and competitive, international trade disputes are also increasing and becoming more complex. Parties need to become more aware of alternatives to costly and time consuming arbitration and litigation. The ADR (Alternative Dispute Resolution) can encompass all dispute resolution processed and can act as a substitute for traditional litigation. Mediation, a type of ADR, offers an amicable dispute settlement mechanism between concerned parties through a natural mediator. There are several strong points of mediation compared with litigation or arbitration. First of all, mediation can take place without having to complete time-consuming and expensive discovery processes associated with litigation. In addition, since mediation is considered a private process, the dispute can remain out of the public eye. It can be embarrassing and disrupt business when customer or suppliers learn that a company is involved in litigation. Lastly, mediation is less adversarial than litigation or arbitration, so the parties often can salvage their relationships. Often the parties to mediation find themselves continuing to conduct business. In spite of such benefits of mediation, it is less used in Korea and therefore, this article aims to promote the mediation system in international trade disputes. However, this paper has limitation, for example, why ADR is not used well in Korea and need to suggest how ADR can work best in international trade disputes.

• Journal of Arbitration Studies
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• v.17 no.2
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• pp.3-21
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• 2007

Arbitration is a private and contractual means of dispute resolution. As a creature of contract, any particular arbitration owes its existence-and attendant limitations-to an arbitral agreement. This means that, in practice, the parties select their own judges, forum, and rules. By agreeing to arbitration, parties hope to achieve several goals. And arbitration has proven to be quicker, cheaper, and more predictable than litigation as a means of resolving many types of claims. As a primary method of conflict resolution, it is now worthwhile to consider carefully any procedural mechanism designed to promote the central aims of this alternative to litigation. It is helpful to frame any particular analysis according to (1) the type of decision for which preclusive effect is sought (arbitral award or court judgment) and (2) the type of subsequent proceeding in which preclusion is sought (an arbitration or a litigation). Res judicata may well bar litigation of that claim between the parties, but non-parties (affiliates or individuals) will not benefit from this bar unless the arbitral tribunal makes findings sufficient to satisfy the elements of collateral estoppel. The final permutation to be considered involves an arbitral award's preclusive effect on a subsequent arbitration. Whether a prior court decision should preclude issues or claims in a subsequent arbitration presents the easiest case for analysis. It is the easiest primarily because there is generally little room to debate whether adequate procedures were followed in a litigation. That is, one can safely assume that the rules of evidence and the rules of civil procedure were followed and that formal records sufficiently memorialize both the proceeding itself and the ultimate decision. Procedural regularity is mentioned not necessarily because it is an analytic tool, but because so many jurists and scholars see it as an impediment to the application of preclusionary doctrines.

• 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.

• Proceedings of the Korean Institute Of Construction Engineering and Management
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• 2004.11a
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• pp.629-633
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• 2004

The number of claims and disputes among project participants has been steadily increasing last a few years and it creates numerous conflicts and problems in the domestic construction industry. One of the root causes of claims and disputes can be explained by the fact that project objectives of participants are offer different and not aligned. This research is considered as a pre-study of developing a strategy to mitigate conflicts such as claims and disputes in the domestic construction industry by utilizing Alternative Dispute Resolution (ADR) techniques. This research focused on improving standard contrast documents to establish a systematic dispute resolution process which emphasize the ADR method. To do so, several well-recognized contract documents developed by FIDIC, AIA, ECC were throughly investigated and analyzed using a benchmarking process. Result of the research propose needs of improving the domestic construction document's some clauses and the details will be further Investigated through surveys and expert's opinions.

• Journal of Arbitration Studies
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• v.34 no.1
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• pp.3-26
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• 2024

"Arbitration" is a procedure to settle a dispute over property rights or disputes based on non-property rights that the parties can resolve through a reconciliation, not by a judgment of a court, but by an award of an arbitrator, and is a kind of Alternative Dispute Resolution(ADR). Arbitration is the most representative and efficient ADR system in many fields, so by activating it, disputes can be resolved smoothly and ultimately, and social costs caused by a heavy increase in lawsuit can be reduced. Arbitration costs are often evaluated as 'cheap', but in reality, they can be similar to or exceed litigation costs. Nevertheless, unlike the Civil Procedure Act, which stipulates the litigation aid system for those who are hard to pay litigation costs, the Arbitration Act or the Arbitration Industry Promotion Act does not have the arbitration aid system for those who are hard to pay arbitration costs. However, considering ① the utility of arbitration compared to other dispute resolution procedures, such as litigation, ② the possibility of resolving trial delays through vitalizing arbitration, ③ the need to guarantee access to arbitration, ④ the feasibility of revitalizing arbitration by the arbitration aid system, it is necessary to introduce the Arbitration Aid System. To explain the details of the Arbitration Aid System, a person who intends to apply for arbitration or a party who continues arbitration could be the applicant. Regarding the judge, this paper suggests the establishment of a council for arbitration aid to prevent the possibility of prejudgment by the arbitral tribunal. Also, if the council accepts the application for arbitration aid, it would be appropriate for the arbitral tribunal to determine the allocation of arbitration costs considering the decision of the council and to include it into arbitral awards.

• Health Policy and Management
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• v.1 no.1
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• pp.72-94
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• 1991

The number of disputes between physicians and patients caused by medical malpractice are showing a sharp increasing over the past several years. The disputes on medical malpractice may be resolved either in court or by direct negotiation between both sides concerned. There are no special acts relating to the civil or penal liability of the physicians in Korea. The medical disputes are decided merely through legal technicalities and without reference to actual medical practice. The current system which does not compensate injured patients adequately or equitably leads to taking a long time consuming for dispute resolution processes. The things make worsed, the problem is due to not being of insurance system or a proper funds for compensation. This research proposes a outline of new and comprehensive alternative for these problems and failure of conventional resolution of medical disputes. So far, we have learned lessons from the excperiencies of resolving medical malpractice disputes of Japan and the United States. The proposal first calls for an administrative arbitration and pretrial screening panels as a condition precedent to trial. The proposal also includes to facilitate with the funds for compensating the injured.