• Journal of Arbitration Studies
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• v.18 no.2
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• pp.103-127
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• 2008

This paper is to research the powers and interim measures of the arbitral tribunal in the arbitral proceedings of the international commercial arbitration under arbitration legislation and arbitration rules including the UNCITRAL Model Law and Arbitration Rules. The powers of the arbitral tribunal may be found within the arbitration agreement or any arbitration rules chosen by the parties, or the chosen procedural law. The power of the arbitral tribunal to decide its own jurisdiction is one of the fundamental principles of international commercial arbitration. It is a power which is now found in nearly all modern arbitration and rules of arbitration. Where an arbitral tribunal has been appointed then it will usually have the power to proceed with the arbitration in the event that a party fails to appear. It cannot force a party to attend but it may sanction the failure. While the arbitral tribunal can direct the parties to attend and give evidence the arbitral tribunal has no power to compel a party to give evidence. The arbitral tribunal may continue the arbitration in the absence of the party or its failure to submit evidence and make an award on the evidence before it. Under most of arbitration legislation and arbitration rules, the arbitral tribunal has the power to appoint experts and obtain expert evidence. The power to order a party to disclose documents in its possession is a power given to the arbitral tribunal by many national laws and by most arbitration rules. The arbitral tribunal cannot, however, compel disclosure and in the case where a party refuses to disclosure documents then the sanctions that the arbitral tribunal can impose must be ascertained from the applicable rules or the relevant procedural law. A number of arbitration rules and national laws allow for the arbitral tribunal to correct errors within the award. Most of arbitration legislation and arbitration rules permit the arbitral tribunal to grant orders for interim measure of protection. Article 17(1) of the Revised UNCITRAL Model Law of 2006 states: Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures. Interim measures of protection usually take such forms as (1) conservatory measures intended to prevent irreparable damage and maintain the status quo; (2) conservatory measures intended to preserve evidence or assets. Orders for interim measures by the arbitral tribunal are not self-enforcing. However, the arbitral tribunal must have the powers necessary to make interim measures effective. The Article 17 B of the Revised UNCITRAL Model Law of 2006 provides applications for preliminary orders and conditions for granting preliminary orders. And the Article 17 H provides recognition of enforcement of interim measures. In conclusion, the revised articles with regard to interim measures of the UNCITRAL Model Law of 2006 would contribute significantly to the security of the effectiveness of interim measures in international commercial arbitration. Therefore, Korean Arbitration Law and Arbitration Rules would be desirable to admit such revised articles with regard interim measures.

• Journal of Arbitration Studies
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• v.19 no.2
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• pp.3-26
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• 2009

This paper is to research on the role of party autonomy in the decision of applicable law for the arbitral proceeding, arbitral award and arbitration agreement, in the decision of the place of arbitration, in the composition of arbitration tribunal, and the choice of arbitral proceedings. The principle of party autonomy is fundamental to arbitration in general and to international arbitration in particular. Generally the tenn of party autonomy is used as the autonomy of the parties to decide all aspects of an arbitration procedure subject only to certain limitations of mandatory law. Party autonomy permits the parties to a commercial arbitration to choose the laws and make the rules which govern the arbitral proceedings. Party autonomy allows the parties freedom to choose the applicable laws for the arbitral proceeding and the place of arbitration. Party autonomy is recognized in relation to the choice of law for the merits of the dispute as well as for the arbitration agreement and the arbitration procedure. On the basis of the recognition of party autonomy in international treaties, national legislation and court decisions, arbitral practice has generally accepted and enforced party autonomy both regarding the procedure and the applicable substantive law. All modern institutional rules of arbitration follow that line. Today it is recognized by national legislators all over the world to the effect that the jurisdiction of national courts can be excluded by arbitration agreement and that the parties may choose the law applicable to arbitral proceedings. Limits on party autonomy are imposed by mandatory provisions of international or national law or of institutional arbitration rules regarding the procedure. Mandatory laws at the place of the arbitration or under any procedural law chosen by the parties may restrict party autonomy. These mandatory laws usually take the form of public policy considerations in the arbitration. Limitations on party autonomy have been reduced more and more, and the trend of modern national as well as international legislation on arbitration leans clearly in the direction of a maximum of party autonomy.

• International Commerce and Information Review
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• v.8 no.1
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• pp.357-369
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• 2006

All over the country tries to clarify the content of 'Public Policy' in recognition and implementation of Foreign Arbitral Awards : it makes comments of the international consensus of Geneva Convention(1927), New York Convention(1958) and the UNCITRAL Model Law on Public Policy, and it takes a general view of domestic laws how they deal with Public policy and Foreign Arbitral Awards. Foreign Arbitral Awards should be appropriately respected and implementation by the courts of countries encourage parties in a legal procedure to refuse enforcement by invoking "Public Policy." In order to cope with such invocations, the purport of the above recommendation on Foreign Arbitral Awards should be internationally recognized and the exceptional circumstances should be restricted unless the International Court of Arbitral Awards is not established a Dr. Holtzmann/Schwebel brought forward. In this paper suggests the list of the exceptional circumstances. Korean Arbitration Law stipulates as the Civil proceeding Law did, "good morals and the social order of the Republic of Korea" as a ground for refusing enforcement of Arbitral Awards. Studies on counteraction against invocations of Public Policy to refuse enforcement of Foreign Arbitral Awards should be developed.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.41
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• pp.135-165
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• 2009

It is not difficult to understand from laws and practices in arbitration area that arbitrators appointed have as many rights as their duties to do their performing duties especially to participate in the proceeding and deliberations of the arbitral process. However, sometimes can be happened that an arbitrator who was appointed by a party, refuses to participate in the proceeding or resign during the arbitral process. Generally, in the case, it is provided that the arbitrator who fails to act can be replaced by a substitute arbitrator. When it is decided to change an arbitrator, the appointment of an substitute arbitrator is likely to cause time delay, high cost with inconvenience. And also it is to be considered for additional cost and delay from possible need for repeating the hearings that were held at former arbitral tribunal. Sometimes, a party want to delay intentionally the arbitration process by using right for challenging arbitrator or designing with an arbitrator who was appointed by the party. That is why the reason it has been discussed for allowing the truncated tribunal that the remaining arbitrators that is named as truncated tribunal are permitted to complete the proceeding and issue decisions or arbitral awards. Unfortunately there are uncertain views on the validity of arbitral proceeding or recognitions and enforcement of truncated tribunal decisions in international commercial arbitration. In this article it is focusing on discussing truncated tribunal's benefits or barriers and problems through comparing with famous arbitral rules of international arbitral institutes including rules of UNCITRAL, LCIA, KCAB and the revising draft arbitration rule of UNCITRAL.

• 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.31 no.1
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• pp.107-127
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• 2021

Vietnam is an important country with many trade transactions with the Republic of Korea. Arbitration is a method of resolving disputes that can arise with the increase in trade transactions. It is essential to study the legal system and precedents of Vietnam on the approval and enforcement of foreign arbitral awards. Such is the case because the law in Vietnam and the court's position on the approval and enforcement of foreign arbitration awards issued by the courts depend on the possibility of realizing the parties' rights concerning their disputes. Therefore, it is of great value both theoretically and practically to analyze the exact differences between approval and the denial of approval. Vietnam has enacted the Commercial Arbitration Act, which replaces the previous Commercial Arbitration Decree and creates an arbitration-friendly environment that meets international arbitration standards. Regarding the approval and execution of foreign arbitration awards, the Commercial Arbitration Act, the Civil Procedure Act, the Civil Execution Act, and the Vietnam Foreign Arbitration Awards Approval and Enforcement Ordinance are regulated. Following these laws and regulations, the reasons for the approval, enforcement, and rejection of the arbitral award are specified. In accordance with these laws and inappropriate arbitration agreements, an arbitral award beyond the scope of its right of disposition, an arbitral tribunal, or the concerned parties could not be involved in a proceeding or an arbitral award if the involved party does not have an opportunity to exercise its rights lawfully. If the state agency in the forum does not recognize the arbitral award, the dispute is not subject to arbitration under Vietnamese law, or the arbitral award does not conform to the basic principles of Vietnamese law, the parties are not bound, and the foreign arbitration award is rejected for approval and execution.

• Journal of Arbitration Studies
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• v.15 no.1
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• pp.113-146
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• 2005

Bankruptcy proceedings serve the purpose of the collective satisfaction of the debtor's creditors through the realisation of the debtor's assets and the distribution of the proceeds therefrom. Upon the adjudication bankruptcy, the debtor's right to administer and dispose of the property belonging to the bankruptcy estate shall be vested in the administrator. If a mutual contract was not or not completely fulfilled by the debtor and the other party at the time of the adjudication of bankruptcy, the administrator has right to choose wether to fulfil or terminate the contractual relation. Legal acts that have been conducted prior to the adjudication of bankruptcy and that are detrimental to the debtor's creditors may be contested by the administrator. However, these effects of bankruptcy will have not great influence on the arbitration agreement between the debtor and another party. An arbitration agreement that has been conducted prior to the adjudication of bankruptcy is binding the administrator as an universal legal successor of debtor. Only the arbitration agreement directly disadvantageous to the debtor's creditors may be contested by the administrator. Furthermore, it is not at the discretion of administrator whether or not to submit the dispute to arbitration because an arbitration agreement does not belong under the category of Art. 50 Korean bankruptcy Act which demands a mutual contract. Arbitral proceeding upon the property of the bankruptcy estate and pending for the debtor as plaintiff or against the debtor as defendant at the date of the adjudication of bankruptcy may be taken up at the given status by the administrator. This leads to a change of the party. If a duly summoned party fails to appear in arbitration court, the arbitrator, if satisfied there is no valid excuse, may continue the proceedings and make the award as if all the parties were present. This may be disadvantagious to the debtor's creditors because the arbitral award have the same effects on the participants as the final and conclusive judgement of the court. Even if there is a change of party on side of debtor to the administrator in bankruptcy, the arbitral proceedings will not be automatically postponed or suspended. The matter of how to proceed is at discretion of administrator, when the parties haven't agree on the arbitral proceedings. He can continue the arbitral proceedings without to grant an adjournment of hearing. However, an arbitration award may be challenged by a party dissatisfied and set aside by the court based upon the misconduct that violates the basic rights of the parties to a fair hearing. The arbitrator must treat the parties equally in the arbitral proceedings and give each party a full opportunity to present his case. The arbitrator, therefore, will carefully exercise his discretion in determining whether to continue the arbitral proceedings or to grant a postponing. In the practice, the arbitral proceedings may be usually postponed to grant due process.

• Journal of Arbitration Studies
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• v.16 no.1
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• pp.187-217
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• 2006

This study has the purpose to investigate other countries' arbitrator systems to compare with the current KCAB's system and to find their merits and demerits so that we can make up for the demerits of KCAB's arbitrator system and to make the most use of its merits. The most important factor of arbitral procedure is the arbitrator. If we compare clauses related with the arbitrator to KCAB's arbitration rules, expand the merits of it and apply the merits of other arbitrating organs, KCAB's arbitration can avoid criticism which it has got so far while it was handling the international cases. Also, we may need to grow up the role of the executive office in the range of respecting the self-government of the concerned party for the rapid proceeding of arbitral procedure. According to the foreign countries' international arbitration rules, they go with the process that they firstly give the concurrence period to the concerned parties, especially related with the arbitral procedure such as selection of arbitrator or filling the vacancy of the arbitrator, and as for the concerned party who doesn't fulfill within that period, the arbitrating organ or the other one corresponding to the pertinent arbitrating organ in case of the ad-hoc arbitration rules fulfill instead.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.3-24
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• 2009

Arbitration is the system of resolving disputes not by the adjudication of a national court but by the award of an arbitrator or arbitrators. To settle disputes by arbitration, it should be concluded that the arbitration agreement which is implied that the parties agree to submit to the arbitral award about all or certain disputes which have arisen or which may arise between them in respect of defined legal relationships. It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. Therefore, the parties may agree to arbitrate disputes relating to the rights that they freely dispose of. Besides, they may have the freedom to choose arbitration as the form of a dispute resolution. Because arbitration is a private proceeding with public consequences that some types of dispute are reserved for national courts, whose proceedings are generally in the public domain. It is this sense that they may not be the object of arbitration. After all, it could be the object of arbitral proceedings that disputes which are capable of a settlement by arbitration.

• Korea Trade Review
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• v.45 no.1
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• pp.203-219
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• 2020

The parties shall perform all actions necessary for the proper and expeditious conduct of arbitral proceedings. This includes complying without delay with any determination of the tribunal as to any and all procedural or evidential matters, or with any order or directions of the tribunal, and where appropriate, taking without delay any necessary steps to obtain a decision of the court on a preliminary question of jurisdiction or law. The parties are free to agree on the powers of the tribunal in case of a party's failure to do something necessary for the proper and expeditious conduct of the arbitration. The parties' general duty may be based on agreements, such as the duty not to ask the court for a dispute, the duty to carry out arbitral awards, and the duty of confidentiality. In this study, as a premise, after confirming the discussion related to Article 40 (general obligations of the parties) of the law, the arbitral tribunal will analyze the authority to execute it based on Article 41. As a matter of fact, in LMAA Terms 2017, the parties want to analyze what is required in order to proceed effectively.