• 한국중재학회지:중재연구
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• 제23권4호
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• pp.55-76
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• 2013

This study aims to analyze the main features of Mongolian arbitration system compared with Korean Arbitration Law which was revised under the UNCITRAL Arbitration Model Law. On the basis of this comparative study, certain differences are suggested: First, the environment of Mongolian arbitration is still insufficient in terms of its operation and usage at the international level. Second, the Mongol National Arbitration Court has established Ad-hoc Arbitration Rules and has promoted Ad-hoc Arbitration although it is an institutional arbitration organization. Third, the arbitration objects are defined as the types of tangible and intangible assets in Mongolia which are different from those of the Korean Arbitration Law. Accordingly, court and officer disputes, family disputes, labor-management relations, and criminal matters are covered by the arbitration objects. Fourth, Mongol Arbitration Law specifies the following persons disqualified for arbitrator appointment: the member of the Constitutional Court, judge, procurator, inquiry officer, investigator, court decision enforcement officer, attorney, or notary who has previously rendered legal service to any party of the disputes, and any officials who are prohibited by laws to be engaged in positions above the scope of their duties. Fifth, the arbitrator selection and appointment criteria should be documented, and the arbitrator should have the ability to resolve the disputes independently and fairly and achieve concord from both parties. Sixth, if there is no agreement between the parties, the arbitration language should be Mongolian, and the arbitral tribunal has no power to decide on it. Seventh, despite the agreement for a documentary hearing between the parties, there should be provided opportunities for an oral hearing if either of the parties requires it. Eighth, if the parties do not understand the language of the arbitration, the parties can directly ask the translation service. They should also keep secrets in the process of arbitration. Ninth, the cancellation of arbitral award is allowed by the application of the parties, not by the authority of the court. Except for the nine differences above, the Mongolian arbitration system is similar to that of the Korean Arbitration Law. This paper serves to contribute to the furtherance in trade relationship between Mongolia and Korea after the rapid and efficient resolution of disputes.

• 한국중재학회지:중재연구
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• 제24권4호
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• pp.49-97
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• 2014

This study is about the availability of Chinese internal arbitration institutions by Korean invested companies. Generally, Chinese internal arbitration institutions lack independence from government. However, because parties seeking an arbitration award have ways to get neutrality from internal arbitration institutions that guarantee party autonomy, these Korean companies can use Chinese internal arbitration institutions to resolve disputes in China. Special attention should be given to the following. First, because Korean companies invested in China are legally in the same position as Chinese companies, unless foreign-related factors intervene, when disputes occur with Chinese companies or individuals, the disputes correspond to internal dispute, and when it comes to choosing the arbitration institution, these Korean companies must choose either a Chinese internal arbitration institution or foreign-related arbitration institution. Second, most Chinese internal arbitration institutions still lack independence from government, which can influence the fairness of arbitration in the future. Therefore, Korean companies invested in China should think about alternative ways to get a minimum impartiality in arbitration cases. Third, the parties are allowed to choose arbitration rules freely in Beijing, Xian, Chongqing, Guangzhou, and Hangzhou arbitration commissions. Therefore, in arbitration cases, the parties can get impartiality by choosing arbitrators according to the arbitration rules which they agree on, or by choosing partially modified arbitration rules of those arbitration commissions. Fourth, in order to get an impartial arbitration award from Chinese internal arbitration institutions in China, it is important for Korean lawyers or arbitration experts -- fluent in Chinese -- to be registered in the List of Arbitrators of Chinese internal arbitration institution by way of signing a MOU between the Korean Commercial Arbitration Board, or the Korean Association of Arbitration Studies and arbitration commissions such as those of Beijing, Xian, Chongqing, Guangzhou, and Hangzhou which comparatively do guarantee party autonomy. Fifth, because application of the preservation of property before application of arbitration is not approved in China, in practice, in order to preserve property before application of arbitration, it is best to file another suit in China based on other legal issue (e.g., tort) independent from the contract which an arbitration agreement is applied to. Sixth, in arbitration commissions which allow different agreement regarding arbitration procedures or arbitration rules, it is possible to choose a neutral arbitrator from a third country as a presiding arbitrator via UNCITRAL arbitration rules or ICC arbitration rules. Seventh, in the case of Chinese internal arbitral award, because the court reviews the substantive matters to decide the refusal of compulsory execution, the execution rate could be relatively lower than that of foreign-related cases. Therefore, when Korean companies invested in China use Chinese internal arbitration institution, they should endure low rate of execution. Eighth, considering the operational experiences of public policy on foreign-related arbitration awards so far, in cases of Chinese internal arbitration award, the possibility of cancellation of arbitral award or the possibility to refuse to execute the award due to public policy is thought to be higher than that of foreign arbitral awards. Ninth, even though a treaty on judicial assistance in civil and commercial matters has been signed between Korea and China, and it includes a provision on acknowledgement and enforcement of arbitral award, when trying to resolve disputes through Chinese internal arbitration institution, the treaty would not be a big help to resolve the disputes, because the disputes between Korean companies invested in China and the party in China are not subject to the treaty. Tenth, considering recent tendency of conciliation by the arbitral tribunal in China and the voluntary execution rate of the parties, the system of conciliation by the arbitral tribunal is expected to affect as a positive factor the Korean companies that use Chinese internal arbitration institution. Finally, when using online arbitration, arbitration fees can be reduced, and if the arbitration commissions guaranteeing party autonomy have online arbitration system, the possibility of getting impartial arbitration award through them is higher. Therefore, the use of online arbitration system is recommended.

• 한국중재학회지:중재연구
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• 제29권3호
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• pp.53-74
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• 2019

Due to the increasingly popular dissatisfaction regarding the inefficiency of arbitral proceedings, the Rules on the Efficient Conduct of Proceedings in International Arbitration, also known as the Prague Rules, was launched in December 2018, with the purpose of increasing the efficiency of arbitral proceedings by encouraging arbitral tribunals to take a more proactive role in conducting their procedures. In this article, the provisions of the Prague Rules are examined, in light of those of the IBA Rules on the Taking of Evidence in International Arbitration, in order to determine the efficacy of the Prague Rules on enhancing the efficiency in arbitral proceedings. The author concludes that more specific and detailed provisions, with respect to what the Rules means by such a "proactive arbitral tribunal," should have been explicitly included in light of the Rules' repeated emphasis on such. Also, the prospective outlook on the Prague Rules is not entirely clear as the text does not appear to fill in the gaps in other widely utilized arbitration rules or to supplement them in a satisfying way. However, given that only a short amount of time has passed since the launch late last year, only time will reveal how effective the Prague Rules will be in increasing the efficiency of arbitral proceedings, in accordance with its intended effect.

• 한국중재학회지:중재연구
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• 제18권3호
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• pp.117-138
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• 2008

This study lies on building the International Standardization of China Arbitration System for improving a relationship of mutual trust and the safety trade between China and other worldwide countries, especially, South Korea as their one of the biggest trading partners through the comparative analysis of China and UNCITRAL Arbitration Law. In this analysis, the differences from China and UNCITRAL in arbitration law are like belows ; lack of arbitrator's international mind, the limitation of private property right, prohibition of Ad. hoc arbitration, arbitrator's biased nationalism, localism, and their short specialties. a deficiency of the objectiveness for arbitrator's election, a judgement rejection of claimants by using nonattendance and walkout, impossibility of prior and temporary property custody for execution of arbitration award. etc. For the improvement of the International Standardization of China Arbitration, this paper propose as follows: 1) Extension of private property right, reorganization of tax system, realization of open competition, exclusion of 'Sinocentrism', globalization of arbitration system 2) The abolition of old fashioned bureaucracy with approval for ad.hoc arbitration 3) An education for arbitrator's internationalization, specialty, and to promote legal knowledge 4) A settlement of the third country arbitrators' selection for reflecting interested party's decision by the court in a selection system of arbitration committee. 5) Institutionalization of arbitration judgment that prevent for claimant's avoidance by using a withdrawal and an intentional absent 6) A permission of the right of claimant's court custody directly before the begging of arbitration request for the prevention for destruction of evidence and property concealment 7) Grant of the arbitration tribunal's interim measures of protection for private property preservation to the third party, proof security, prevention from the loss that selling the corruptible goods 8) Improvement of arbitration's efficiency from the exclusion of the obstacles that are forgery, concealed evidence, and arbitrator's bribe taking Lastly, I hope that this study will serve to promote friendly economic relationship between China and South Korea and strive for international equilibrium through the achievement of China Arbitration's International Standardization. I will finish this paper with a firm belief that this will lead to more advanced studies.

• 한국중재학회지:중재연구
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• 제15권3호
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• pp.113-137
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• 2005

In the provisions of 'the Arbitration Law of China, there are special provisions for international arbitration. When a court refuses the recognition and enforcement of foreign arbitral awards or cancel the domestic awards relating to international arbitration, they have to adopt the provisions of 'Chinese Civil Procedure Law'. These provisions are the same as the provisions of Korean Civil Procedure Law concerning the reasons of renewal. In the Korean Arbitration Act, those provisions disappeared when it was revised on December 31, 1999. Among the characteristics of the Chinese arbitration system, a serious question is that it provides only institutional arbitration and there is no ad-hoc arbitration in the Chinese Arbitration Law. On the other hand, when the parties appoint three arbitrators according to their agreement, the parties appoint the third arbitrator by mutual agreement and when they fail to agree, the Arbitration Committee appoints the third arbitrator. In practice, as the parties hardly agree on the third arbitrator or sole arbitrator, the Committee usually appoints them. And appointing an arbitrator from out of their panel of arbitrators is permitted these days only under examination by the Arbitration Committee in accordance with the arbitration rules of the China International Economic and Trade Arbitration Commission, Other arbitration committees except the China International Economic and Trade Arbitration Commission are still prohibited from making appointments from out of their panel of arbitrators. Accordingly, arbitration in China cannot be predicted and poses a question about legal stability as party autonomy is restricted in the appointment of arbitrators and arbitral procedure. Such being the case it is strongly recommended to select Korea as the place of arbitration in transactions with China. However it is better to arbitrate than to file a law suit in China.

• 무역상무연구
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• 제38권
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• pp.155-180
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• 2008

The purpose of this paper is to examine the major elements of Arbitration Clause in international investment contracts and to help the investor, especially foreign investors, considering these elements when they draft the contracts. First of all, to describe the extent of the arbitrable issues broadly is very important by using the phrase such as "disputes in connection with". Furthermore in order to be enforceable, the issues must be a subject-matter to be submitted to arbitration in accordance with the laws of the place of arbitration and the law application to the merits of the disputes (N.Y. Convention, Art. II). Second, the appointment of the arbitrators usually shall be based on the principle of freedom of contract. If the parties do not agree on the appointment, it is decided in accordance with the arbitration rules of the institution by the tribunal. Third, the procedural rules of the arbitration are the arbitration rules of the arbitration institution in case of institution arbitration, unless otherwise agreed. Forth, what is the most importance element of Arbitration Clause is the place of arbitration. In this case, also the principle of freedom of contract has priority. Unless otherwise agreed, Washington is the place of arbitration in case of ICSID Arbitration, but in case of ICC Arbitration, neutral third country may be the place of arbitration. However in case of ad hoc arbitration, both parties should indicate the place. If not, the whole arbitration may be paralysed by an uncooperative party. Besides the major elements, I examined the relation between the arbitration clause and award enforcement in terms of sovereign immunity. The enforcement of awards in the field of state contracts many encounter the problem of the sovereign immunity, which means that the State itself or the State enterprise is the contract partner. To avoid the this problems, it is advisable for the parties insert the clause such as ICSID Model Clause XIX.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.43-70
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• 2007

The purpose of this paper is to make research on the contents and discussions of the draft of revised UNCITRAL Arbitration Rules that have been discussed and considered by the Working Group. At its thirty-ninth session (New York, 19 June-7 July 2006), the Commission agreed that, in respect of future work of the Working Group, priority be given to a revision of the UNCITRAL Arbitration Rules (1976). At its forty-fifth session (Vienna, 11-15 September 2006), the Working Group undertook to identify areas where a revision of the UNCITRAL Arbitration Rules might be useful. At that session, it was considered that the focus of the revision should be on updating the Rules to meet changes that had taken place over the last thirty years in arbitral practice. The largely amended provisions of the draft of revised UNCITRAL Arbitration Rules are as follows : Notice of arbitration and response to the notice of arbitration (Article 3), Designating and appointing authorities (Article 4 bis), November of arbitrators (Article 5), Appointment of arbitrations (Article 6), Appointment of arbitrators in multi-party arbitration (Article 7 bis), Challenge of arbitrators (Article 9), Replacement of an arbitrator (Article 13), Pleas as to the jurisdiction of the arbitral tribunal (Article 21), Interim measures (Article 26), Form and effect of the award (Article 32), and Liability of arbitrators (Proposed additional provisions). There are some differences between the draft of revised UNCITRAL Arbitration Rules and the KCAB Arbitration Rules. In order to jnternationalize the Korea's commercial arbitration system, it is desirable that the main articles of the draft of revised UNCITRAL Arbitration Rules should be admitted to the KCAB Arbitration Rules. In conclusion, the Commission was generally of the view of any revision of the UNCITRAL Arbitration Rules should not alter the structure of the text, its spirit, its drafting style, and should respect the flexibility of the text rather than make it more complex. The Working Group agreed that harmonizing the provisions of the UNCITRAL Model Law should not be automatic but rather considered only where appropriate.

• 한국중재학회지:중재연구
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• 제30권2호
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• pp.121-144
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• 2020

If the interim disposition of the Arbitration Tribunal is not immediately enforceable, it will only give pressure to the other party concerned and the arbitration could work against him if the other party fails to implement it. If enforcement is impossible, the disposition will have no practical effect or practical benefit. In addition, if a system is contrary to its unique characteristics or nature, it will not function as a system or it will become an unnecessary decoration. There is no room for argument that the above provisions are wrong or misinterpreted if the temporary disposition in arbitration cannot be characterized by its characteristics, such as its provisionality, urgency, incidentality, or invasibility. As attracting international arbitration cases can create enormous added value for the national economy, countries are scrambling to create a mediating-friendly legal environment in their countries, and Korea has been more active in arbitration than in the past. Despite various efforts, however, attracting international arbitration cases is still a long way off. Therefore, Korea should create a mediating-friendly, legal environment to attract arbitration cases. There are many reasons why arbitration is activated internationally, but the most important of them is that it is easier to approve and execute. The use of the approval and execution of heavy court is, in turn, the most important requirement of a mediating-friendly environment. It is natural that temporary dispositions made in arbitration should be as easy to approve and enforce as in the case of arbitration. In addition, it is natural for the parties to consider the use of approval and execution when deciding where to mediate or when applying for arbitration; thus, the degree of ease of execution, along with the procedural use of arbitration or provisional disposition, will be a measure of the likelihood of hosting international arbitration cases, as well as the activation of arbitration.

• 통상정보연구
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• 제9권4호
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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".

• 무역상무연구
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• 제31권
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• pp.107-134
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• 2006

Enforcement of an arbitration award is an extremely important issue in arbitration. Arbitration, as a dispute settlement process, is rendered meaningless if it is not possible to enforce an award rendered by an arbitration tribunal. On the other hand, the present international arbitration system guided by the New York Convention and UNCITRAL Model Law is established on the dual supervision from the national courts. The nationality of the international arbitral award closely relates to the supervision of the national court, and the national court is entitled to decide the nationality of the international award in accordance with the conditions set in its own domestic law. The national court may set aside arbitral award made in its territory while the foreign court may refuge enforcement of foreign arbitral awards according to its own law and international convention to which it is a party. The conditions set in the Arbitration Law of the People's Republic of China are in agreement with those set in the UNCITRAL Model Law. The Chinese national court is entitled to set aside international awards made in China in accordance with the Chinese Law. The purpose of this paper is to clarify the Chinesr practice on the revocation of international commercial arbitral awards.