• 한국중재학회지:중재연구
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• 제15권1호
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• pp.113-146
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• 2005

Bankruptcy proceedings serve the purpose of the collective satisfaction of the debtor's creditors through the realisation of the debtor's assets and the distribution of the proceeds therefrom. Upon the adjudication bankruptcy, the debtor's right to administer and dispose of the property belonging to the bankruptcy estate shall be vested in the administrator. If a mutual contract was not or not completely fulfilled by the debtor and the other party at the time of the adjudication of bankruptcy, the administrator has right to choose wether to fulfil or terminate the contractual relation. Legal acts that have been conducted prior to the adjudication of bankruptcy and that are detrimental to the debtor's creditors may be contested by the administrator. However, these effects of bankruptcy will have not great influence on the arbitration agreement between the debtor and another party. An arbitration agreement that has been conducted prior to the adjudication of bankruptcy is binding the administrator as an universal legal successor of debtor. Only the arbitration agreement directly disadvantageous to the debtor's creditors may be contested by the administrator. Furthermore, it is not at the discretion of administrator whether or not to submit the dispute to arbitration because an arbitration agreement does not belong under the category of Art. 50 Korean bankruptcy Act which demands a mutual contract. Arbitral proceeding upon the property of the bankruptcy estate and pending for the debtor as plaintiff or against the debtor as defendant at the date of the adjudication of bankruptcy may be taken up at the given status by the administrator. This leads to a change of the party. If a duly summoned party fails to appear in arbitration court, the arbitrator, if satisfied there is no valid excuse, may continue the proceedings and make the award as if all the parties were present. This may be disadvantagious to the debtor's creditors because the arbitral award have the same effects on the participants as the final and conclusive judgement of the court. Even if there is a change of party on side of debtor to the administrator in bankruptcy, the arbitral proceedings will not be automatically postponed or suspended. The matter of how to proceed is at discretion of administrator, when the parties haven't agree on the arbitral proceedings. He can continue the arbitral proceedings without to grant an adjournment of hearing. However, an arbitration award may be challenged by a party dissatisfied and set aside by the court based upon the misconduct that violates the basic rights of the parties to a fair hearing. The arbitrator must treat the parties equally in the arbitral proceedings and give each party a full opportunity to present his case. The arbitrator, therefore, will carefully exercise his discretion in determining whether to continue the arbitral proceedings or to grant a postponing. In the practice, the arbitral proceedings may be usually postponed to grant due process.

• 한국중재학회지:중재연구
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• 제25권4호
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• pp.119-136
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• 2015

The contracting parties must be provided a litigation scheme in order to resolve a dispute. This means taking advantage of effective measures for mediation or arbitration. A lease transaction is likely to occur mainly after a dispute. It is necessary to take the appropriate measures in advance. In general, when a variety of contracts are created, conflicts arise and disputes have to be resolved through mediation and arbitration documents, and adjustment or intervention is called for. Arbitration system is a system that is established based on the trust of the arbitral tribunal. For such system, quality education for enhancing professionalism required of the arbitrator is important. A party responding to an arbitration agreement presents a problem. The current system must ensure that there are no disadvantaged parties. However, a party must depend on an arbitration agreement that is part of the law rescue system. A litigation support by the local Bar Association must be carried out. It should be notified of the contents of the contract to select a strategy that will best resolve the conflict. In the case of lease transactions, there is a need to create a scheme to make a standard agreement that inserts an arbitration clause. Lease sale and purchase agreement or lease agreement is a form of contract that has been frequently used. Here, the arbitration agreement clause for a lawyer that will serve as arbitrator should be inserted. It is a scheme that can be activated for individuals in poor areas. In addition, it is possible to see it taking a scheme to take advantage of the lawyer system for the future of the town. The Attorney System of a town is a system that the Korean Bar Association, Legal Department has put in place since 2013. If a real estate trade dispute occurs, the role of the intermediary attorney should be to carry out his duties efficiently. In the case of real estate transaction conflicts, the lawyer of the village should be registered as the arbitrator. It is important to establish a basis of regulations through this type of real estate transaction accident analysis. Before proceeding with various adjustment systems, it is desirable to expand the arbitration region. Now we need a realtor amendment. It is the part where fragmentation of intermediary qualification is required, along with the eligibility of a subdivision.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.71-100
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• 2007

To promote the way of resolving the increasing disputes regarding international intellectual property by arbitration, we should overcome uncertainty thwarting the dispute resolution; i.e., whether a dispute regarding intellectual property would be an arbitrable subject, whether the arbitration agreement would be valid and enforceable, and whether the arbitral award could be recognized and enforced in a foreign country. This article is intended to seek how to promote and facilitate the resolution of international disputes regarding intellectual property by arbitration. This article in Chapter II will examine the characteristics of the IP disputes first. Chapter III of this article will study arbitrability of IP disputes. Then, Chapter IV will discuss the requirements, validity, and effectiveness of arbitration agreement of international IP disputes. The author will discuss the procedure of arbitration of the international IP disputes in Chapter V, and finally the recognition and enforcement of foreign arbitral awards thereon in Chapter VI. Due to the so called 'territoriality principle' in intellectual property, the international disputes thereof confront numerous procedural setback, e.g., jurisdiction, conflict of laws, the recognition and enforcement of foreign judgments or awards. To overcome such setbacks, I propose resolution of international IP disputes by one-step arbitration procedure through widely recognizing the arbitrability of IP disputes, and utilizing unnational nature of arbitration. In addition, I propose to set up the principles as to arbitration of the international IP disputes as the American Law Institute has formulated the principles for International Intellectual Property Litigations. By setting up these principles, I am certain it will be helpful to just and prompt resolution of international IP disputes which occur more frequently these days.

• 한국중재학회지:중재연구
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• 제16권3호
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• pp.217-230
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• 2006

Singapore is a dual-track arbitration regime. Where seat of arbitration is Singapore, the governing procedural law for domestic arbitration is AA and for international arbitration is IAA. The parties may by agreement opt-out of and opt-into a specific regime. SIAC is a leading arbitral institution in Singapore. It offers wide range of services: administer arbitration proceedings, arrangement of logistics for arbitration hearing, appointment of arbitral tribunal for ad hoc arbitration in Singapore as well as registry and authentication of arbitral awards.

• 한국중재학회지:중재연구
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• 제24권3호
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• pp.1-31
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• 2014

The foundation of the arbitration jurisdiction is the arbitration agreement entered into by the parties to a contract. Usually, only the signatory parties to a contract and the disputes arising from a contract that includes an arbitration clause or to which the arbitration clause relates are the ones that can be submitted to arbitration. This article discusses some of the arguments for extending the arbitration clause in complex arbitrations, that is, in those cases where there are more than two parties, more than two contracts or more than two parties and contracts. Particularly, this paper addresses multiple contract arbitration when the contracts are related. One of the arguments used by the arbitral tribunal for the extension of jurisdiction is the existence of a link between the contracts. Additional arguments include implied consent, participation in the negotiation and performance of a contract and good faith. The article also discusses some of the typical cases of linked contracts in many civil law countries, such as subcontracts, third party beneficiaries and standard terms of contracts, from which arbitral jurisdictions problems may arise. Finally, special attention is given to Article 14 of the 2008 Peruvian Arbitration Law as the first provision in an arbitration law in Latin America that extends the arbitration agreement to non-signatory parties using for this a mixed approach.

• 한국중재학회지:중재연구
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• 제20권2호
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• pp.3-26
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• 2010

In 2006, the UNCITRAL Working Group II started a new project on the revision of the UNCITRAL Arbitration Rules of 1976. Ever since that time, 9 sessions of the Working Group II were devoted to the discussions on such topic. The Arbitration Rules has been acknowledged to be used for settling international disputes involving various disputing parties. In recent years, many treaty-based arbitrations have been subject to the Arbitration Rules. This article focuses on the discussions made in the 52nd session of the Working Group II where the third reading of the revised draft of the Arbitration Rules was completed except for a few provisions. Among the draft rules, the delegations were hardly able to reach an agreement with regard to Articles 2(2), 34(2), 41(3), (4), and (6). It is expected that those provisions would be agreed in the coming 43rd plenary session of the UNCITRAL. The use of the Arbitration Rules is dependent on the agreement by the disputing parties. It is not like the UNCITRAL Model Law on International Commercial Arbitration which was adopted in Korean legal system in 1999. However, the proper functioning of arbitration rules is essential for the efficient and successful operation of the arbitration system in a particular country. That is the reason why we should keep close attention on the discussions of the UNCITRAL with regard to the revision of the Arbitration Rules.

• 한국중재학회지:중재연구
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• 제27권1호
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• pp.37-57
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• 2017

An arbitrator in Pakistan is required to file an arbitral award in a civil court of competent jurisdiction for its recognition and enforcement if an arbitral award is domestic or before the concerned High Court if the arbitral award is international. The court of law is required to issue a decree upon submitted arbitral award if an interested party do not apply for modification or remission of an arbitral award and do not challenge it for setting it aside or for revocation of its recognition and enforcement within a prescribed time limit. The challenging process of an arbitral award can be started by the aggrieved party of an arbitration agreement at the seat of arbitration or at the place where recognition and enforcement of an arbitral award is sought. The aggrieved party to an arbitration agreement is required to challenge an arbitral award within a prescribed time limit if contracting parties have not excluded the right to challenge an arbitral award. Limitation for challenging an arbitral award in Pakistan is 30 days under article 158 of the Limitation Act 1908, starting from the date of service of notice of filling of an arbitral award before the court of law. Generally, 90 days are given for an appeal against decision of the civil court of law under section 96 of the Code of Civil Procedure 1908, it is therefore highly recommended that challenging time of an arbitral award should be increased from 30 to 90 days.

• 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.

• 무역상무연구
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• 제49권
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• pp.61-86
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• 2011

Korea Supreme Court has given thirty-nine time's judgments on enforcement of Arbitral awards for thirty-six arbitration cases and made four time's decision on the arbitration cases since Korea arbitration act was enacted in 1966. Most of the arbitration cases appealed to the Supreme Court was to obtain the recognition and enforcement of arbitral awards or to set aside the arbitral awards according to the Korea arbitration Act article 36 and article 37, by reason of (a) a party to the arbitration agreement was under some incapacity under the law applicable to him or the said agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, (b) a party making the application was not given proper notice of the appointment of the arbitrator or arbitrators or of the arbitral proceedings or was otherwise unable to present his case (c) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, 5 cases of these arbitral awards were refused to obtain the enforcement of Arbitral awards and have been cancelled finally by the Supreme Court only by the New York Convention of 1958.

• 한국중재학회지:중재연구
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• 제14권2호
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• pp.243-279
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• 2004

The construction arbitration field has developed considerably since the latter half of the 1990s. Through analysis of construction arbitration cases taken up by KCAB, this paper intends to show the present condition and the improvement direction of construction arbitration in Korea. The number of construction arbitration cases filed at KCAB has been increasing rapidly after 1997, but recently the rate of increase has tended to decline. From 2000 to 2003 the number of arbitration cases increased 23％ each year, on average, but in 2003 the increase was only 7.6％. In the very beginning, public construction claims made up the majority of all construction cases, however, civil construction claims are increasing gradually. The arbitration amount in the construction field is very high, owing to public construction claims. For example, the arbitration amount per case was 5 billion won, on average,. in the public construction field. It is shown that the claimants of arbitration are mostly constructors and the main reasons for making claims are to demand payment for construction and payment for additional work. KCAB investigated the performance status of arbitration awards. The voluntary performance rate for awards in construction arbitration is nearly 80％ and in 11％, a suit was filed to appeal the arbitration award. In spite of the development of construction arbitration, some improvements are requested. There have been arguments about the effectiveness of selective arbitration agreement in the General Terms of Construction Contract. This has caused a decrease in arbitration cases, so improvements in this dispute settlement clause need to be made. Enforcement of arbitration awards is granted by the judgment of a court. Resulting from this, appeals for arbitration awards are not allowed, however, up to three appeals for the enforcement of awards are allowed in court. As such, the enforcement system for arbitration awards needs to be improved and simplified.