• Journal of Arbitration Studies
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• v.25 no.3
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• pp.91-111
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• 2015

This paper discusses the problem of extraordinary delay in the commercial arbitration process, increased arbitration fees, and denial of the benefits of arbitration to other parties due to the abuse of procedural rights by relevant parties in commercial arbitration process. This paper proposes measures to reduce abuse of process in commercial arbitration, such as statutory modification, judicial supervision, amendment of arbitration rules and the intervention of disciplinary bodies.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.26
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• pp.225-253
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• 2005

Nowadays we does not hesitate to definite answer that the arbitration is the most developed dispute settlement out of court in the international commercial transaction. Online arbitration is desirable for the reasons of speed and cost effectiveness to settle the dispute about the international commercial transaction. Online arbitration is fast because it uses the communication technologies that allow information to be sent fast and efficiently. But in online arbitration too much speed and efficiency may lead to a violation of due process rights and consequently the online arbitration awards run a risk to be set aside or refused its enforcement under the international commercial arbitration mechanism. Speed and efficiency may conflict with the procedural guarantee characterizing each adversary dispute resolution process. As arbitration is exclusive of recourse to courts, a state must guarantee that arbitral proceeding should be satisfied with the claim rights requirement. The main question regarding the sources of regulation is particularly for the due process whether or not this is provided by the availability of grounds to set arbitral award aside. In other words, does it respect due process in the arbitration proceeding including information communication and technology under the online arbitration. In this paper it is discussed about how the main issue in arbitration should be implemented in online arbitration proceedings to cope with the due process requirements in national and international.

• 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.

• Journal of Arbitration Studies
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• v.26 no.3
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• pp.149-173
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• 2016

This study vindicates similarities and differences of hybrid process of arbitration and mediation between China and Malaysia. Both countries develop hybrid processes combining arbitration with mediation in their own cultural soils. The Chinese dispute resolver plays the dual role of arbitrator and mediator during the proceedings of hybrid process of arbitration and mediation. On the other hand, a different arbitrator plays the role of mediator, if conciliation fails in Malaysia. On the other hand, judges are allowed to act as mediator during the proceeding in China and Malaysia.

• Journal of Arbitration Studies
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• v.22 no.1
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• pp.23-41
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• 2012

Arbitration provides quicker resolution and may also limit the erosion of business relationships that is often the result of prolonged litigation. The process of arbitration typically involves four phases: 1) selection of arbitrator(s) and opening statement of positions by the parties; 2) rebuttal of opposing positions; 3) interviews, hearings, and information gathering; and 4) rendering of a decision and issuance of the arbitrator's award. A distinctive feature of arbitration is the party's ability to select the arbitrator and the process and rules that will be followed at the hearing. Once that process has been completed, the parties are in the hands of the arbitrator or tribunal. The arbitrator's duty goes on the arbitration procedure efficiently and renders arbitration award. This article discussed various ways the arbitrator leads to a shorter, less risky arbitration, which benefits the parties. We recommend the arbitrator the following comments; Before the hearing the arbitrator decides to whether an arbitration agreement is valid, and a scope of authorities of him in advance. In the hearing, the arbitrator gives both parties a sufficient opportunity to produce evidence, witnesses, and make their arguments. Lastly, the arbitrator need to be cautious in guiding the parties toward an amicable settlement.

• Journal of Arbitration Studies
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• v.31 no.4
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• pp.51-70
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• 2021

Chinese courts seem to be indifferent or ignorant of truncated arbitration. In other words, the Chinese court canceled the arbitration award made by truncated arbitration except for the Pingdingsan Case among the four arbitration cases related to the domestic arbitration award reviewed in this paper on the ground that it violated the composition of the arbitral tribunal or the arbitration procedure. A Chinese court has canceled the arbitration award by judging only based on the composition of the arbitral tribunal and the legal process of the violation of the arbitration procedure not by determining whether the domestic arbitration award made by the truncated arbitration meets the conditions for the application of truncated arbitration as stipulated in the Arbitration Rules. Moreover, it seems that the Chinese court made a serious error in the application of the relevant regulations in the Pingdingsan Case, which ruled that the truncated arbitration did not violate the legal process. In this case, the Chinese court admitted truncated arbitration under logic process that it was not necessary to wait until the final hearing to apply the truncated arbitraion because one arbitrator was absent before the final hearing, but the truncated arbitrator had already formed his/her opinion before the absence. However, in the case of Marshall Investment Corporation, a case related to foreign arbitration, the Chinese court rejected the approval and execution of the truncated arbitration award by strictly applying the laws and timing of the truncated arbitration. Since only one case has been identified in the main text, it is difficult to make a definitive judgment, but considering these cases, it seems to be that the Chinese courts apply different standards to domestic and foreign arbitration awards to determine the legality of truncated arbitration.

• 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.27 no.3
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• pp.3-31
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• 2017

Legal tech is commonly considered as the use of software and technology in the process of providing legal services. It is disrupting the method in which legal services are traditionally rendered, and under the buzz word "e-arbitration" also extends to the area of international commercial arbitration. This article aims to give an introduction into the most pertinent issues in "e-arbitration", starting with an attempt at defining the term "e-arbitration" and with an overview of some of the service providers. It goes on to address the use of information technology in international arbitration and concludes with an analysis of key legal issues arising when various aspects of the arbitral process are commenced, conducted or concluded in digital form.

• Korea Trade Review
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• v.43 no.1
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• pp.25-45
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• 2018

International commercial arbitration is an inseparable part of today's international commerce. International transactions are becoming increasingly complex. Problems brought by multi-party and multi-contract arbitration pose problems for traditional arbitration systems. The Korean Commercial Arbitration Board(KCAB) has released updated International Arbitration Rules(2016 Rules) and has adopted innovations similar to those introduced in the rules of major international arbitration institutions in recent years. The changes in the 2016 Rules are intended to increase the efficiency of the arbitral process, and introduce the process for consolidation of claims. For international commerce contracts, it would be appropriate, and necessary, to adopt a multi-party arbitration clause, as consolidated arbitration provides effective resolutions for multi-party disputes.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.125-154
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• 2012

The International Chamber of Commerce (ICC) has published revised rules of arbitration, which come into force on 1 January 2012 (the ICC Rules 2012). The ICC Rules 2012 apply to all arbitrations commenced on or after 1 January 2012, unless the parties have agreed to submit their arbitration to the rules in effect on the date of their arbitration agreement (Article 6(1)). The ICC Rules 2012 explicitly require both the arbitrators and the parties to make every effort to conduct the arbitration in an expeditious and cost-effective manner. The changes will force participants to define more aspects of their claims and outline the merits of the dispute earlier on in the process. The Rules also contain new penalties for behaving in a way that undermines the process's efficiency. The new Rules permit the tribunal, when making allocating costs, to take into account the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner. Entirely new provisions relate to the emergency arbitrators, case management, and multi-party arbitrations. The ICC Rules 2012 take into account developments in arbitration practice and procedure, and in information technology, since the last revision of the rules in 1998, the aim being to provide modern and flexible procedures that promote efficiency in the arbitral process.