• 한국중재학회지:중재연구
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• 제32권1호
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• pp.3-24
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• 2022

Today's society appears to be entering a hyper-connected society due to mental notions and information communication technologies being converged for advanced development. Trade between countries around the world is increasing amidst the digital economy and fourth industrial revolution, which is being accompanied by a growing number of trade disputes. Appropriately resolving disputes is crucial for corporate growth, and ADR is drawing attention as a more reasonable solution between interested parties compared to lawsuits. This also applies to international trade as there is growing movements to resolve disputes between parties more efficiently and feasibly through mediation. The adaptation of an international convention for implementation in a third country for settlement agreements drawn up through such international mediation is a new and unprecedented attempt. In other words, the Singapore Convention on Mediation looks to resolve international commercial disputes by granting executive force on the outcomes of mediations. However, a system to solve various legal issues must be put into place to execute the outcomes in the respective country or third country, and a variety of tools for this are necessary.

• 한국중재학회지:중재연구
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• 제25권1호
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• pp.65-86
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• 2015

Under current international investment law clear criteria to determine standards of indirect expropriation are absent. Arbitral tribunals determine on a case-by-case whether an indirect expropriation has occurred by conducting a fact-based inquiry. However, three common determination standards can be inferred by analyzing prior arbitration cases. The appropriate analytical framework that can be applied to determine whether a state's measure constitutes an indirect expropriation is as follows. i) the degree of economic invasion of the state's action into the foreign investor's property rights and durability of the period, ii) interference with the foreign investor's distinct and reasonable investment-backed expectations, and iii) the nature, purpose and character of the state's measure. Therefore, it is necessary to fully acknowledge and to utilize strategically this determination standard. However, derived standards cannot be applied to all disputes en masse. So, it is desirable to exclude ambiguity and to clearly define the determination standard of indirect expropriation in investment agreements, since arbitral tribunals can apply different determination standards on a case-by-case basis. And, based on the discussions until now, more developed standards and direction in response to demand should be established through consistent analysis and review of precedents related to indirect expropriation. Lastly, This study is expected to be a useful guideline to prepare a necessary countermeasure to prevent dispute related to indirect expropriation beforehand or in case of dispute occurrence.

• 한국중재학회지:중재연구
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• 제25권1호
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• pp.3-23
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• 2015

As the Internet rapidly emerges as a speedy and cost-effective way of purchasing goods from overseas websites, the number of disputes arising out of overseas direct purchases also increases. In such situations, a disgruntled consumer might be left without an effective remedy. Providing an alternative approach to redress such grievances might assist in resolving such disputes and in increasing consumer confidence in e-commerce. Online Dispute Resolution (ODR) will allow consumers to solve their disputes without going to court, in a quick, low-cost, and simple way. It also helps to eliminate complex jurisdictional and choice-of-law problems. On the other hand, it has many problems such as having inadequate confidentiality and security, not being able to meet the "writing" requirement for arbitration of disputes, having difficulty in enforcing online arbitration agreements, having difficulties in enforcing online decisions and so on. This article investigates relationship online disputes and ODR and suggests ways that ODR can work best in resolving disputes arising out of overseas direct purchases. To expand the ODR system in online disputes, it is very important for domestic consumers to recognize the concept and usefulness of the Alternative Dispute Resolution (ADR) and ODR systems. The Korean government must also help consumers recognize the ADR mechanisms of dispute resolution by public campaign advertisement of ADR systems. Further education of dispute resolution in higher educational institutions is also required as well as assisting the KCAB with funds and the establishment of ADR Law.

• 한국중재학회지:중재연구
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• 제31권2호
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• pp.77-98
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• 2021

International commercial mediation of intellectual property rights fully meets the interests of the parties in such disputes in terms of their needs for neutral forum of dispute resolution, cost-effective settlement, objective opinion of relevant experts, internationally enforceable solution. In addition, as a procedural flexibility, respected self-determination of the parties, exploration of possible creative business solutions, maintenance of business relationship and confidentiality of mediation are major characteristics which can be competitively differentiated from the lawsuit or arbitration. The settlement agreement as a result of the WIPO mediation has an effect of contract while the settlement agreement as a result of most domestic ones has an effect of judicial reconciliation which can be domestically enforced. The latter is not subject to the application of the Singapore Convention on Mediation which establishes a harmonized legal framework for the right to invoke settlement agreements as well as for their enforcement. The WIPO international mediation system and its experience may be a good reference for Korea to take an initiative to establish a globally competitive international mediation system in the area of intellectual property rights.

• 한국중재학회지:중재연구
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• 제32권3호
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• pp.3-27
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• 2022

Climate change is a man-made disaster that has become a major global concern today. With increasingly visible symptoms of climate change in recent years, it has become evident that climate action can no longer be dismissed as a mere matter of choice, but as a matter of survival for the human being. To address the impending climate change crisis in a collaborative and sustainable manner, the international community has been taking various measures including Kyoto protocol and the Paris Agreement. With respect to the private investor's project investment in line with international agreements on climate change, recently we have seen multiple legal judgments which clearly indicate the subject of judicial responsibility for investment in climate change related projects. However, in order to hold judicial responsibility occurring during the implementation of climate change related projects, a causal relationship between the responsible entities and clear responsibility must be demonstrated, and applicable institutional arrangements need to be arranged. It may be the right time for global community to consider shifting not only to human ethical obligations but also legal obligations. In this regard, concerned governments should consider legislating arbitration laws, regulations, and institutional arrangements in more specific and applicable manner.

• 무역학회지
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• 제45권1호
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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.

• 한국중재학회지:중재연구
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• 제11권1호
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• pp.3-35
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• 2001

$\ulcorner$The South-North Joint Declaration$\lrcorner$ of June 15, 2000 made by President Kim Dae Jung and National Defense Committee Chairman Kim Jong Il will contribute to the activation of economic exchange between south and north Korea. To realize the fundamental spirit of the South-North Joint Declaration, the authorities concerned of south and north Korea have reached an agreement titled $\ulcorner$Agreement on Settlement Procedure of Commercial Disputes$\lrcorner$ last December. In this connection, a speedy and reasonable settlement of commercial disputes arising therefrom is becoming a problem of vital importance between south and north Korea. Also, south and north arbitral institutions have to consider a possible arbitration agreement carefully to solve the disputes systematically under the Agreement, which will serve as an example for similar arrangements and possible harmonization in East-West commercial relations. A variety of dispute settlements including friendly consultations, conciliation and arbitration will be used more frequently within the framework of the bilateral agreements of governmental or non-governmental level which have been concluded in the past between socialist and capitalistic economy countries. There is a growing tendency that East-West trade parties recognize and accept the UNCITRAL Arbitration Rules in their contracts. So it is advisable to use the UNCITRAL Rules in arbitrations of south and north Korea in case that the interested parties fail to agree on applicable rules. Finally it should be noted that pre-arbitral settlement called ‘joint conciliation’ should be reflected in the settlement mechanism of commercial disputes between south and north Korean parties as proved to be successful between the U.S. and China trade in the past.

• 한국중재학회지:중재연구
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• 제15권2호
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• pp.225-261
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• 2005

Under Article IV of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), in order to obtain the recognition and enforcement of a foreign arbitral award, a party applying for recognition and enforcement of a foreign arbitral award shall supply (a) the duly authenticated original award or a duly certified copy thereof and (b) the original arbitration agreement or a duly certified copy thereof. In addition, if the arbitral award or arbitration agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language, and the translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. In a case where a Vietnamese company which had obtained a favorable arbitral award in Vietnam applied for recognition and enforcement of a Vietnamese arbitral award before a Korean court, the recent Korean Supreme Court Judgment (Docket No. 2004 Da 20180. 'Judgment') rendered on December 12, 2004 has alleviated the document requirements as follows : The Judgment held that (i) the party applying for recognition andenforcement of a foreign arbitral award does not have to strictly comply with the document requirements when the other party does not dispute the existence and the content of the arbitral award and the arbitration agreement and that (ii) in case the translation submitted to the court does not satisfy the requirement of Article 4, the court does not have to dismiss the case on the ground that the party applying for recognition and enforcement of a foreign arbitral award has failed to comply with the translation requirement under Article 4, and instead may supplement the documents by obtaining an accurate Korean translation from an expert translator at the expense of the party applying for recognition and enforcement of the foreign arbitral award. In this regard, the author fully supports the view of the Judgment. Finally, the Judgment held that, even though the existence of a written arbitration agreement was not disputed at the arbitration, there was no written arbitration agreement between the plaintiff and the defendant and wenton to repeal the judgment of the second instance which admitted the existence of a written arbitration agreement between the parties. In this regard, the author does not share the view of the Judgment. The author believes that considering the trend of alleviating the formality requirement of arbitration agreements under Article 2 of the New York Convention, the Supreme Court could have concluded that there was a written arbitration agreement because the defendant participated in thearbitration proceedings in Vietnam without disputing the formality requirement of the arbitration agreement. Or the Supreme Court should have taken the view that the defendant was no longer permitted to dispute the formality requirement of the arbitration agreement because otherwise it would be clearly against the doctrine of estoppel.

• 한국중재학회지:중재연구
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• 제22권3호
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• pp.187-213
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• 2012

The purpose of this article is to examine Fair and Equitable Treatment in International Investment Agreements. Most BITs and other investment treaties provide for FET of foreign investments. Today, this concept is the most frequently invoked standard in investment disputes. It is also the standard with the highest practical relevance: a majority of successful claims pursued in international arbitration are based on a violation of the FET standard. The concept of FET is not new but has appeared in international documents for some time. Some of these documents were nonbinding others entered into force as multilateral or bilateral treaties. Considerable debate has surrounded the question of whether the FET standard merely reflects the internationalminimum standard, as contained in customary international law, or offers an autonomous standard that is additional to general international law. As a matter of textual interpretation, it seems implausible that a treaty would refer to a well-known concept like the "minimum standard of treatment in customary international law" by using the expression "fair and equitable treatment." Broad definitions or descriptions are not the only way to gauge the meaning of an elusive concept such as FET. Another method is to identify typical factual situations to which this principle has been applied. An examination of the practice of tribunals demonstrates that several principles can be identified that are embraced by the standard of fair and equitable treatment. Some of the cases discussed clearly speak to the central roles of transparency, stability, and the investor's legitimate expectations in the current understanding of the FET standard. Other contexts in which the standard has been applied concern compliance with contractual obligations, procedural propriety and due process, action in good faith, and freedom from coercion and harassment. In short, meeting the investor's central legitimate concern of legal consistency, stability, and predictability remains a major, but not the only, ingredient of an investment-friendly climate in which the host state in turn can reasonably expect to attract foreign investment.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.121-145
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• 2009

South Korea has investment agreements such as FTAs, BITs with several countries. Up to now, no single case has been registered against the Korean government on breach of investment agreements, but it is likely that the number of such cases would increase. Therefore, an investor-state dispute settlement system, an arbitral procedure by which a foreign investor may seek compensation of damage against the host country, is gaining its importance. The provision of the ISDS has been one of the hottest issues in Korea while the Kor-US FTA was being signed. In this respect, with the growing number of regional agreements such as BITs and FTAs, a careful scrutiny on the ISDS is necessary for Korea. I have therefore studied theoretically subjects including the National Treatment(NT), the Most-Favored Nation(MFN), Fair and Equitable Treatment and Expropriation - those that have been the objects of protection on investors. And I have analyzed ICSID arbitral awards and provided implications. In the ICSID arbitral awards, the Fair and Equitable Treatment turned out to be the most recognized violation on investors by the host State in terms of investor protection. On the other hand, Indirect Expropriation - a matter of which public anxiety was shown led by civic groups - was not generally recognized in arbitral awards. This study is written for sake of governments, local autonomous entities and public enterprises that are in charge of FTAs and BITs.