• International Commerce and Information Review
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• v.9 no.4
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• pp.141-158
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• 2007

The purpose of this paper is to examine the validity or effectiveness of the Arbitration Clause such as Model Clause I, and to confirm how other issues such as arbitrable "investment", appointment of arbitrators and law governing the agreement be reflected in the agreement. However, the parties should be sure that the arbitration clause is valid if they have checked whether, for their particular situation, the ICSID Centre has jurisdiction. For the validity of the Arbitration Clause, first the host country and the country which the investor belong to must be "contracting states" to the ICSID Convention. Second, the specific consent to arbitrate must be expressed in writing in the investment contract or in a national investment law or in an investment protection treaty. The issue of "nationality" of an other contracting state is determined by the place of incorporation or the location of the head office. In case the parties have doubts about a valid consent to arbitrate, Art. 41 of the ICSID Convention provides, regarding ICSID jurisdiction, that the tribunal shall be the judge of its own competence. It follows that ICSID Arbitration has an autonomous and exclusive character. As a consequence, domestic courts may not interfere with the question of ICSID's jurisdiction, which is called as "rule of abstention".

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.45-66
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• 2018

Two years ago, an emergency arbitrator procedure in accordance with the international arbitration rule has been finally adopted in Korea?a decade after its introduction. Arbitral institutions provide interim measures in the course of tribunal proceedings to avoid litigation in open court that is often expensive and time-consuming. An emergency arbitrator procedure offers an urgent relief prior to the constitution of an arbitral tribunal, thus enhancing the speed and effectiveness of the arbitration procedure even further. Although most of the arbitral institutions interpret that the emergency arbitration rulings are binding on the parties, enforcing the emergency arbitration provisions have some difficulties in practice, and it is not clear whether or not arbitral interim measures will be enforceable under the newly adopted provisions in Korea. In this study, experiences in other countries are explored in seeking for the possible problems and solutions of enforcing the emergency arbitration rulings. For example, Singapore and Hong Kong insert terms such as "finality," "enforceable in the same manner as an order or direction of the Court," "same effect as an arbitral tribunal or interim measures" in their emergency arbitrator legislation to enhance enforcement. Moreover, "urgency inherent" are considered.

• Journal of Arbitration Studies
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• v.31 no.2
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• pp.23-46
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• 2021

Sports disputes have specific characteristics compared to disputes that arise in the field of commerce. One particularity is the judicial system in which the CAS plays a key role as the International Supreme Court for sports-related matters. The CAS Code applies whenever the parties agree to submit a sports-related dispute to the CAS(Art. R27). Once the parties to the arbitration agreement have decided that the CAS Code should govern their proceedings. The parties' autonomy is, however, limited to the provisions of the CAS Code that provide for such a corresponding autonomy. The application of the mandatory rules contained in the CAS Code cannot be excluded. In CAS appeals arbitration proceedings, the Panel shall decide the dispute according to the applicable sports regulations and, subsidiarily, to the rules of law chosen by the parties(Art. R58). In international sports disputes, the uniform application and interpretation of the relevant regulations are essential. Therefore, Art. R58 should be applied as a mandatory rule without any changes. Regulations of the sports organizations are to be qualified as valid rules of law. CAS panels may also apply the so-called lex sportiva to the merits before considering statutory provisions of national jurisdictions. In this way, the specificities in (international) sports disputes can be taken into account without the need to further examine the application of national legal standards.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.141-163
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• 2012

In Korea, although nearly all maritime arbitration cases are dealt with by the Korean Commercial Arbitration Board (KCAB), the total number of cases that are referred to the KCAB is relatively small compared with the total number of maritime cases that occur in Korea. There may be reasons why maritime arbitration is not utilized more in Korea. However, of the above reasons, the superseding one may be that there is still a lack of confidence in the credibility and foreseeability of maritime arbitration in Korea. To expand the use of maritime arbitration in Korea, it is essential that the base surrounding maritime arbitration be expanded. In addition, it is also necessary that specialists receivetraining in maritime law. In this context, it is strongly recommended that maritime and admiralty law be taught in law schools and be included as a regular subject on the Korean bar exam. Additionally, to promote maritime arbitration, a rule should be introduced allowing for shortened arbitration proceedings in Korea. Although Chapter 8 of the KCAB Arbitration Rules provide for "Expedited Procedure," this process alone is not because the rules for Expedited Procedure generally apply in arbitration cases where both parties have agreed in a separate agreement to follow the procedures provided or in any domestic arbitration valued atless than 100,000,000 Korean won. Therefore, the KCAB Arbitration Rules for Expedited Procedure must be reformed to encompass international arbitrations. Additionally, experts who are experienced in the maritime sector should be elected as arbitrators. Given the factthat a fair number of arbitration cases can be characterized as international, it is important that businesspersons who are very fluent in English be appointed as arbitrators in order to increase the reliability of maritime arbitration in Korea and save costs. Meanwhile, because lawyers and scholars constitute a considerable portion of KCAB arbitrators, commercial persons from relevant industries should be enlisted as arbitrators. Even though there are arguments for the establishment of an independent maritime arbitration board in Korea, establishment of a separate maritime arbitration board will not directly guarantee the prosperity of maritime arbitration in Korea. Instead of instituting a new maritime arbitration board, it is better that a reorganized KCAB modify existing arbitration proceedings to make them faster and more economical if maritime arbitration is to prosper. In this regard, ad-hoc arbitration would be an option for speedy and thrifty maritime arbitration. Finally, to gain the confidence of domestic and foreign parties, we cannot ignore the importance of advertising the specialties and qualifications of the KCAB and its personnel among business entities.

• Journal of Arbitration Studies
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• v.28 no.1
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• pp.77-97
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• 2018

The Court of Arbitration for Sport (CAS) has been adjudicating on sports-related disputes since 1984. CAS can be regarded as world supreme court for sports settling down about 4200 cases including doping issues. Doping disputes are generally processed by CAS Appeals division and Anti-Doping Division. An appeal against the decision by sports-related bodies may be filed with CAS Appeals Division. Doping issues concerning Olympic games are on Anti-Doping Division, introduced from 2016 Olympic games and invested with complete authority by IOC. The Award of Maria Sharapova finds a player is responsible if found to have committed any Anti-Doping Rule Violation regardless of his/her intention or fault. It offers detailed jurisprudence on imposing such a specific period of ineligibility in view of the totality of the circumstances. The award of Xinyi Chen also confirms the Strict Liability Rule on anti-doping disputes. The player appealed there could be either accidental contamination of drinks, or doping laboratories' mistakes that affected the test results. But, all of them were rejected. Though dealing with doping disputes in a timely manner is important for seasonal sports events like Olympic games, it is necessary to prepare the acceptable and fair process for the players in the future.

• Journal of the Institute of Electronics Engineers of Korea TC
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• v.46 no.5
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• pp.78-87
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• 2009

In the IEEE 802.16 Wireless MAN standard, the best effort service class is ranked on the lowest position in priority and is assisted by a MAC scheme based on reservation ALOHA. In such a MAC scheme, a collision among the requests is unavoidable so that the standard adopted a binary exponential back-off rule to arbitrate a collision. Aiming at improving throughput performance, we present two generic collision arbitration rules based on p-persistence rule, (identified as pristine and metamorphosed rules), as alternatives in a wireless MAN. For each of these rules, we then develop an analytical method to calculate an approximate value of saturated throughput. In comparison with simulation results, we confirm the high accuracy of the analytical method. Also, the pristine and metamorphosed rules are observed to exhibit higher saturated throughput compared with the binary exponential back-off rule.

• Journal of Arbitration Studies
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• v.28 no.4
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• pp.153-172
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• 2018

In solving international commercial disputes, arbitration has a unique advantage. Therefore, when most parties sign a charter party, they contain arbitration clauses. Whether the arbitration clause in the charter party can be effectively incorporated into the bill of lading and bind to the third party-bill holder becomes an important issue. Based on the problem above, this paper compares the arbitration system between Korea and China, and discusses the composition of the Chinese Maritime Court and the Chinese court's adjudication of arbitration for foreign countries, which are recognized and enforced in China. What is most important in this study is observing the Chinese case from the beginning of 2000 to the present in order to rule whether the Chinese court can effectively incorporate the arbitration clause in the charter party into the bill of lading, as well as whether it constitutes an effective binding force for third parties and changes in standard of recognition. Finally, through comparative analysis, the study concludes that in China, the arbitration clause in the charter party can be effectively incorporated into the bill of lading, and that the conditions for the third parties can be effectively restrained. There must be several points to be noted when recording the bill of lading. This would then help reduce the legal risks and promote the sustainable development of international transactions.

• Journal of Arbitration Studies
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• v.23 no.1
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• pp.133-152
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• 2013

Recently, the United Nations Commission on International Trade Law (UNCITRAL) has made progress toward resolving low value, high volume disputes in international e-commerce. At the Working Group's 26th session, two draft procedural rules were addressed. The first discussed the draft of Article 9, entitled "Decision by a neutral party." This is based on the suggestion in 26th session to have a "two track" system of ODR, one including negotiation, facilitated settlement, and arbitration phrases, and the other not including an arbitration phase. The second draft procedural rule, draft Article 10, regards the language of proceedings. In most cases of international e-commerce, the decision of language of an ODR proceeding is a matter of importance, for the language parties could differ from each other. This paper examines several implications of UNCITRAL for Korea, which has unstable ODR system.

• Journal of Arbitration Studies
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• v.9 no.1
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• pp.115-137
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• 1999

The UNCITRAL, during its thirty-two session in 1999 discussed certain issues and problems identified in interactional commercial arbitration practice. The issues discussed include certain aspects if conciliation proceedings ; the legislative requirement of a written form for the arbitration agreement ; arbitability ; soverign immunity ; consolidation of more than one case into one arbitral proceedings ; confidentiality of information in arbitral proceedings ; rasing claims in arbitral proceedings for the purpose of set-off ; decisions by "turncated" arbitral tribunals liability of arbitrators ; power by the arbitral tribunal to award interest ; costs of arbitral proceedings ; enforceability of interim measures of protection ; and discretion to enforce an award that has been set aside in the state of origin. Among those issues discussed, most of States agreed that the issues relating to certain aspects of conciliation proceedings ; the legislative requirement of a written form for the arbitration agreement ; enforceability of interim measures of protection ; and discretion to enforce an award that has been set aside in the State of origin should have priority over other issues. The UNCITRAL may wish to consider the desirability of preparing uniform provisions on any of those issues, possibly indicating whether further work should be towards a legislative text (such as a model legislative provision or a treaty) or a non-legislative text (such as a model contractual rule).

• Journal of Arbitration Studies
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• v.26 no.3
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• pp.93-119
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• 2016

Park Tae-hwan, the Korean Olympic gold medal swimmer, was suspended for eighteen months by the International Swimming Federation (FINA) in September 2014. Park completed his suspension in March 2016, but the Korea Olympic Committee (KOC), relying on its Article 5.6, then prohibited him from joining the national team for an additional three years for the same doping violation. The KOC's penalty exceeded that provided by the World Anti-Doping Code, which governs the Olympics and most international sports federations, and contravened well-established precedent from the Court of Arbitration for Sport (CAS). The KOC, along with the Korea Swimming Federation, maintained the suspension until decisions by the Seoul Eastern District Court and CAS forced them to retract the penalty. We describe the sports regulations and arbitration decisions governing the Park case, how each side used the law to support their positions, the flaws in the KOC's legal analysis, and the case's resolutions by the Korean court and CAS. Finally, because this legal conflict has damaged the KOC's reputation, created uncertainty over the committee's doping penalties, and undercut the authority of the World Anti-Doping Code and the CAS in Korea, we recommend institutional changes in Korea's sports jurisprudence.