• Journal of Arbitration Studies
• /
• v.30 no.1
• /
• pp.87-111
• /
• 2020

Smart contracts are implemented by blockchain technology, which stores the terms of the contracts of both parties on the blockchain. In the event of an international dispute over smart contracts and blockchains, no special solution has been proposed, such as the enactment of the International Unification Act. The blockchain platform which operates smart contracts is decentralized and operates through distributed nodes around the world without central servers, making it difficult to establish jurisdiction and governing laws. As an alternative to traditional dispute-solving methods, a new mediation model-smart arbitration-is being attempted. The arbitration process is likely to be a preferred means of resolving disputes over smart contracts in practice. There are many problems, such as the fairness of the arbitration center on the selection and judgment of arbitrators, the question of securing reliability, the question of the validity of the arbitration agreement, and how much the court can be involved in the case. Preparations at the national level, such as fostering blockchains and smart contract experts, and overhauling the legal system, are needed.

• Journal of Arbitration Studies
• /
• v.28 no.2
• /
• pp.91-110
• /
• 2018

Consumers repeatedly make small sum purchases through business-to-consumer contracts, usually without incident. Consumer areas have been increasing; therefore, consumer disputes have been occurring frequently as well. In international consumer transactions, it is not easy to solve consumer disputes by applying the laws of different countries. Resolving disputes by using the consumer arbitration system can be a measure to protect consumers. In the U.S., a class arbitration is being operated as a mixed dispute resolution system of class action and arbitration. Consumer Arbitration has long been a controversial issue in the U.S. It is therefore a lesson for us to examine related cases. A recent U.S. Supreme Court decision, DIRECTV v. Imburgia, was looked into and after a summary of the facts, issues, and opinions and opposing opinions that had a tight controversy, a close analysis was done. The analysis through this judgment is as follows: first, the contraction of consumer protection; second, the expansion of the Federal Arbitration Act scope; third, the class arbitration's restriction; and fourth, the submission of the arbitration fairness act.

• Journal of Arbitration Studies
• /
• v.33 no.2
• /
• pp.53-83
• /
• 2023

The investment agreement prepared at the beginning of inter-Korean economic cooperation in 2000 can be evaluated as very ineffective as a product of mutual political and diplomatic compromise rather than an effective protection for our investment assets. South Korean companies suffered a lot of losses due to the freezing of assets in the Geumgang mountain district and the closure of the Kaeseung Industrial Complex, but they did not receive practical damage relief due to institutional vulnerabilities. Currently, North Korea is under international economic sanctions of the UN Security Council, so it is true that the resumption of inter-Korean economic cooperation is far away, but North Korea's human resources and geographical location are still attractive investment destinations for us. Therefore, if strained relations between the two Koreas recover in the future and international economic sanctions on North Korea are eased, Korean companies' investment in North Korea will resume. However, the previous inter-Korean investment agreement system was a fictional systemthat was ineffective. Therefore, if these safety devices are not reorganized when economic cooperation resumes, unfair damage to Korean companies will be repeated again. The core of the improved investment guarantee system is not a bilateral system between the two Koreas, but the establishment of a multilateral system through North Korea's inclusion in the international economy. Specifically, it includes encouraging North Korea to join international agreements for the execution of arbitration decisions, securing subrogation rights through membership of international insurance groups such as MIGA, creating matching funds by international financial organizations. Through this new approach, it will be possible to improve the safety of Korean companies' investment in North Korea, and ultimately, it will be necessary to lay the foundation for mutual development through economic cooperation between the two Koreas.

• Journal of Arbitration Studies
• /
• v.28 no.1
• /
• pp.3-26
• /
• 2018

This article examines whether parties may agree to contractually waive the right to bring annulment proceedings. Alternately it looks at whether certain grounds of annulment may be waived. The ability for parties to resolve this issue contractually by waiving this element of Article 52(1)(b) ICSID offers a potentially powerful solution. For parties to agree beforehand to the circumstances where tribunals have not 'manifestly exceeded their power' could allow them to remove the unpredictability of annulment on this foundation. Even in the event that an ad hoc committee is against the validity of waiver, it may be possible for a party to frame this restriction as an interpretative agreement by the parties rather than strictly as waiver of a ground of annulment. Ultimately, the wish to enter into such an agreement would likely only be driven by a few exceptional commercial need or prior negative experience with the remedy of annulment. In that cases, and depending on the nature of the specific concern with annulment, a limited waiver or interpretative agreement on certain Article 52(1) ICSID grounds may certainly be appropriate.

• Journal of Arbitration Studies
• /
• v.30 no.1
• /
• pp.67-86
• /
• 2020

In the case of multiple commerce contracts in commerce, as well as multiple contracts related to it, a solution for the merging of arbitration proceedings is necessary in order to ensure uniformity of dispute resolution. Since the arbitration proceedings are based on the parties' agreement, no merging of two or more arbitration proceedings may transpire unless all parties agree. Claims of merging in arbitration proceedings lead to problems such as lack of party autonomy, resulting from lack of consent of the parties to merging, and how to appoint an arbitrator in a multilateral arbitration proceeding. Many of the major arbitration bodies have recognized the significant benefits of the terms of consolidation, and have recently revised the Arbitration Rules to include or extend existing clauses to reflect the needs of the parties. This study introduces the merging provisions of several selected major arbitration rules, such as the ICC, Switzerland, SCC, LCIA, SIAC, HKIAC, ACICA, and UNCITRAL rules, and looks at the main similarities and differences among the rules.

• Journal of Arbitration Studies
• /
• v.22 no.3
• /
• pp.71-92
• /
• 2012

The significant increase in international trade over the last few decades has been accompanied by an increase in the number of commercial disputes between Korea and India. Understanding the Indian dispute resolution system, including arbitration, is necessary for successful business operation with Indian companies. This article investigates characteristics of India's Arbitration and Conciliation Act in order to help then traders who enter into business with Indian companies to settle their disputes efficiently. The Arbitration and Conciliation Act(1996) based on the 1985 UNCITRAL Model Law on International Commercial Arbitration and the UNCITRAL Arbitration Rules 1976, has a number of characteristics including the following: (i) this act covers ad hoc arbitration and institutional arbitration (ii) parties to the arbitration agreement have no option except arbitration in case of any dispute (iii) the parties can choose their own laws, places, procedures, and arbitrators (iv) the decision of the arbitrators is final and binding (v)role of the court has been minimized and (vi) enforcement of foreign awards is recognized. However, there have been some court decisions that have not been in tune with the spirit and provisions of the Act. Therefore, Korean companies insert the KCAB's standard arbitration clause into their contracts and use India's ADR(Alternative Dispute Resolution) Methods to strategically resolve their disputes. Additionally, Korean companies investigate Indian companies' credit standing before entering into business relations with them.

• Journal of Arbitration Studies
• /
• v.25 no.2
• /
• pp.71-96
• /
• 2015

This paper deals with the annulment of the ICSID(International Centre for Settlement of Investment Disputes) arbitral award. The annulment of the ICSID is characterized by the fact that it can be made possible through the special committee of ICSID only. The annulment of the ICSID was constructed on the premise that it is not an appeal procedure. However in the initial period, it was strongly criticized as it allowed new trials or duplicated many of the functions of an appeal and it broke down the boundary between the two systems. Although the trend seemed to be corrected through its 2nd and 3rd generations, it was still criticized for functioning as a new trial. It is approaching its 4th generation. On the other hand, with the activation of investment agreement arbitration based on ICSID and FTA, a certain degree of consistency is required for the ICSID arbitralaward. Also, with the emphasis on the public features of the arbitration for the investment agreement, the necessity of an appeal system is presented. The ICSID Secretariat published the "Opinion on the Appeal Procedure" in 2004 but as the system was criticized as too early due to the cost allocation problem and others, its adoption of an appeal procedure has been delayed. This paper focuses on how the currently incomplete ICSID arbitration judgment annulment system shall be used. Although it is still hardto expect the quality and consistent arbitral award annulment in the ICSID, this paper suggests that the "annulment without the actual new trial" using the restricted authority of a special commission in a creative way shall be pursued rather than just the actual new trial with or without annulment, thus going back to the original concept of the ICSID arbitral award annulment.

• Journal of Arbitration Studies
• /
• v.25 no.2
• /
• pp.19-47
• /
• 2015

International arbitration is an increasingly popular means of alternative dispute resolution for cross-border commercial transactions. The primary advantage of international arbitration over court litigation is enforceability. An international arbitration award is enforceable in most countries in the world. Especially, statistics indicate of ASEAN such as Malaysia and Singapore that the vast majority of defeated companies comply with the terms of international arbitral awards against them or settle soon after the award is rendered. Unlike Malaysia and Singapore, in Indonesia, there are several grounds for refusal of enforcement of an award including where both the nature of the dispute and the agreement to arbitrate do not meet the requirements set out in the Arbitration Law. Because Indonesia does not acknowledge decisions of foreign courts, theoretically they could enforce an international arbitral award which was set aside by the court in the seat of arbitration. This paper introduces the legal system and cases of recognition and enforcement of foreign arbitration awards in ASEAN, especially Malaysia, Singapore, and Indonesia. Secondly, by comparing their law and cases, the paper emphasized the international suitability and global fitness in involved in recognition and enforcement of foreign arbitration awards.

• International Commerce and Information Review
• /
• v.8 no.3
• /
• pp.207-227
• /
• 2006

An Arbitration agreement is one kind of contracts between two or more contracting parties; any possible disputes that arise concerning a contract will be settled by arbitration. The parties are free to agree on the number of arbitrators. The role of the arbitrator is so significant in the arbitration system that its success or failure may depend on the credibility of the arbitrator. The purpose of this paper is to examine the specific elements of the Arbitration Clause through arbitration laws, arbitration rules and the related cases, to introduce the standard clause which are recommended by the international institution and the individual countries, and to make the parties of international commercial contracts reflect them in their contracts. Thus this author would like to recommend the famous and well known the Standard Clause which were drafted by international institution such as ICC and UNCITRAL or individual countries.(LCIA, AAA, CIETAC, KCAB)

• Journal of Arbitration Studies
• /
• v.21 no.2
• /
• pp.27-46
• /
• 2011

In the intellectual based society of the 21th century, intellectual property of nation and enterprise management has been the key element of nation's competitiveness and development. Therefore in countries like Korea, China, and many other countries, intellectual property of advancement strategy are being constructed and intellectual properties are protected at national level. Top priority task of protecting the intellectual property is to efficiently resolute intellectual property right disputes. Considering the nature of intellectual property right and arbitrage system, arbitration to solve intellectual property disputes is realistically the best method. However, not all cases of them are qualified. In order to relieve the intellectual property disputes through arbitration, qualification must be obtained. During the process, generally and globally, intellectual property right dispute is evaluated by three parts, intellectual property right contract dispute, intellectual property right violation dispute, and intellectual property right validity dispute. Based on UN's "Convention on the Recognition and Enforcement of Foreign Arbitral Awards Agreement" in 1958, June 10th, in New York, both arbitrage organization and judgment can be approved in both Korea and China countries. However, as of today, there is a big gap of arbitration qualification between two countries, which can be troublesome if intellectual property right disputes arise. For instance, in Korea, intellectual property right contract disputes and intellectual property right violation disputes are both generally accepted as arbitration qualification. However for intellectual property right validity dispute, arbitration qualification is only accepted for non-registered intellectual property as in copyright entity. It does not apply to other registered intellectual property right as in patents. In China, arbitration qualification is accepted for intellectual property right contract dispute, and also accepted for intellectual property right violation dispute to copyrights but restricted to others. As for intellectual property right validity dispute, arbitration qualification is completely denied. Therefore, when there is an intellectual property right dispute between Korea and China, the biggest problem is whether China will accept arbitrage judgments made in Korea. Theoretically, arbitrage judgement made in Korea should be also accepted in China's court. However, considering the criticism of China's passive nature of arbitration qualification for its own local intellectual property right disputes, it's very unlikely they'll actively accept arbitrary judgment made in foreign countries. Korea and China must have a more open minded approach for intellectual property disputes and arbitration qualification. Base on WTO's Intellectual Property Right Agreement, it's being defined as private right. Therefore, sovereign principle should be the basic principle of solving intellectual property right disputes. Currently, arbitration qualification is expanding internationally. So both Korea and China must also follow the trend expand the arbitration qualification with a more open minded and forward looking approach, for the good of intellectual property disputes.