• 한국중재학회지:중재연구
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• 제30권1호
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• pp.39-66
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• 2020

Under the doctrine of separability, if the party did not specifically challenge the validity of the arbitration clause, then it is presumed valid, and arbitrators would still have authority to adjudicate disputes within the scope of the arbitration clause. Further, the Primerica and Spahr decisions address whether a court or an arbitrator should adjudicate a claim that a contract containing an arbitration clause is void ab initio due to mental incapacity. If the arbitration agreement is separable, as was found in Primerica, then the "making" of the agreement is not at issue when the challenge is directed at the entire contract and arbitrators may exercise authority. If an arbitration provision is not separable from the underlying contract, as in Spahr, a defense of mental incapacity necessarily goes against both the entire contract and the arbitration agreement, so the "making" of the agreement to arbitrate is at issue, and the claim is for courts to decide. Although no bright line rule can be established to deal with challenges of lack of mental capacity to an arbitration agreement, the rule in Prima Paint should not be extended to this defense. Extending the rule in Prima Paint would force an individual with a mental incapacity to elect between challenging the entire contract and challenging arbitration. Accordingly, there should be a special set of rules outside of the context of Prima Paint to address the situation of status-based defenses, specifically mental capacity defenses, to contracts containing arbitration provisions.

• 한국중재학회지:중재연구
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• 제23권3호
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• pp.127-147
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• 2013

Korea is, after China, the Asian country with the largest number of concluded investment treaties. One of the protections that Korean investment treaties frequently afford to foreign investors and their investment is the so-called "umbrella clause," which requires the host state of the investment to observe the commitments that it has undertaken toward the foreign investor or its investment. This is a potentially very powerful protection. Umbrella clauses, however, have proven to be amongst the most controversial provisions in investment treaties, giving rise to diverging interpretations by tribunals and commentators that are still not reconciled today.

• 한국중재학회지:중재연구
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• 제28권4호
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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.

• 한국중재학회지:중재연구
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• 제20권2호
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• pp.151-171
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• 2010

This paper investigates the consumer arbitration practices In the U.S. The key issue in consumer arbitration is how to protect the individual consumers from the loss of their legal rights stemming from the arbitration agreement with the business. In the U.S., the major legal doctrines to protect individual consumer include the voluntary-knowing-intelligent doctrine, unconscionability doctrine, and void contract. Even though the US courts are favorable to the enforceability of arbitration agreement, they strictly apply the contract law theories in deciding the existence of arbitration agreement, providing a strong common law protection for the consumers in arbitration. However, the practices for protection of consumers in arbitration in Korea are not mature yet. If consumer arbitration is widely adopted into B to C contracts, a protective measure for individual consumer can be found in the Act of Clause Regulation providing that the business has duty to explain the relevant clause in the adhesive contracts.

• 한국중재학회지:중재연구
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• 제29권2호
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• pp.89-105
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• 2019

This paper reviews and analyzes the U.S. cases and statutes on the issue of party autonomy in arbitration agreement. Arbitration agreement has been interpreted somewhat differently from general contracts because its legal characteristics are not purely contractual by nature. For example, some legal scholars insist that an arbitration contract is more about an agreement on a process of dispute resolution than a creation of rights and obligations to avoid litigation. Party autonomy was discussed in diverse legal perspectives including contract of adhesion, VKI principle, and separability of arbitration clause. These three legal perspectives are discussed to set the legal relationship between party autonomy and protection of consumers in consumer arbitration. In addition, it was discussed how legal defects in the formation of an arbitration contract can influence the party autonomy. The legal defects that were discussed to analyze the relationship between arbitration agreement and party autonomy included misrepresentation, fraud, mistake, duress, and undue influence.

• 한국중재학회지:중재연구
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• 제26권1호
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• pp.3-27
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• 2016

There is a need for disputes in sports to be settled by arbitration rather than a court ruling, taking the unique characteristics of sports into consideration. Arbitration is a form of alternative dispute resolution (ADR). A dispute resolution system is regarded as: an arbitrator is selected by the agreement between the parties, and a binding decision is made, which the parties obey, consequently resulting in a final resolution. To resolve a dispute upon arbitration, there must be an arbitration agreement upon the free will of the parties. In relation to the arbitration agreement, however, there are some cases in which sports organizations have an arbitration clause in the articles of association, regulations or player registration application that call for settling disputes by arbitration. In such cases, the validity of the arbitration agreement may create doubt whether or not this sort of arbitration has been made by mutual agreement. Consequently this is required to be legally examined. The activities of a sports organization are recognized as part of private autonomy, and they include even the rights that establish regulations or rules. Nonetheless, the powers that such sport organizations are able to establish are not allowed without limit. However, sports activities and autonomy shall be protected as themselves. Therefore, if we give priority to arbitration upon the independent arbitrator and fair process by establishing an independent arbitral organization in charge of sports disputes to handle the effective resolution of disputes and protect sports autonomy and ask for a court decision if one party disobeys the arbitration, or the sports arbitration prepositive principle, it seems helpful to resolve the unfairness of compulsory jurisdiction and the clause for sports arbitration and protect the player's right of choice and of claims for trial.

• 한국중재학회지:중재연구
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• 제13권1호
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• pp.207-244
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• 2003

There are many parties who connected with contracts like a contract for construction. Dispute arising from the two parties can be souled by themselves. but it grows the necessity of settlement at one effort. The meaning of multiparty arbitration is solution of mixed disputes without inconsistency through multiparty concerned. H the parses wish to settle the disputes by arbitration, they must come to an arbitration agreement. The arbitration agreement is necessary to resolve disputes autonomously, that may be in the form of a separate agreement or in the form of a clause in a contract. More ever it is resonable to view the arbitration agreement as a substantive contract in its legal nature enabling the authority for dispute resolution by the arbitrator. I had argument about who should appoint the arbitrator. That is to say, each party can appoint the arbitrator, otherwise the courts can appoint one. The basis of multiparty arbitration is focused on the factor that the courts may have the right to order the consolidation of arbitration proceedings without consent of the parties. The dispute can be settled by the arbitrators who are appointed. Appointing arbitrator is very important because it affects the party's equality. The right to appoint arbitrator shall be entitled each party in multiparty arbitration. Therefore they can appoint plural arbitrators by mutual agreement. for .reference to Rules of Arbitration of The International Chamber of Commerce, the Court shall appoint a sole arbitrator or three arbitrators in condition. The Arbitration Act of Korea dose not have the clause on multiparty arbitration including the arbitration rules. But if we have the clause enacted, it brings a situation in which both parties gain a benefit.

• 한국중재학회지:중재연구
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• 제31권3호
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• pp.25-42
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• 2021

Arbitration is an alternative dispute resolution mechanism based on the parties' agreement to resolve any disputes parties may have by arbitration rather than litigation in court. Parties' consent to arbitrate, which must be manifest in the parties' arbitration clause or agreement, is the foundation for arbitration; thus, the language of an arbitration agreement is often of utmost importance in determining the intent of the parties regarding many aspects of arbitration proceedings, such as, the scope of arbitral proceedings, arbitral seat, and authority of arbitral tribunals, among others. Recently, the U.S. Supreme Court held in Lamps Plus, Inc. v. Varela (2019) that ambiguity in arbitration agreement as to availability of class arbitration should be resolved in favor of individual arbitration, and therefore, class arbitration would be precluded. Such holding was met with criticism by four separate dissenting opinions, in which the dissenting Justices have disagreed with the majority's interpretation of the arbitration agreement at issue, as well as, its rejection of application of state law in resolving contractual ambiguity. This article analyzes the Supreme Court's decision and reviews the Court's approach in construction of the arbitration agreement. Nevertheless, because the Supreme Court declined to provide clear guidelines as to precisely what contractual basis is required to permit class arbitration, either silence or ambiguity in arbitration agreements will be resolved by disallowing class arbitration.

• 한국중재학회지:중재연구
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• 제19권1호
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• pp.25-44
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• 2009

The purpose of this parer is to examine the specifies of Institutional Arbitration and Ad Hoc Arbitration. The court prefers the institutional award in the enforcement rather than the award issued under the name of arbitrators alone. For example, the ICC Court of Arbitration scrutinizes awards for completeness, adherence to the ICC Rules and internal consistency, which since the court assurance for enforcement. In terms of arbitration costs, for which the ad hoc arbitration is considered to have comparative advantages, the institutional arbitration may not be more expensive than ad hoc arbitration, as in most commercial case, the administrative fees are insignificant. This paper suggests the standard or model arbitration clauses in institutional and ad hoc arbitrations. These Clauses contains the minimum elements necessary to render the arbitration agreement enforceable and effective. So both parties may add the specific contents such as the number of arbitrator, the place of arbitration and the language. Especially, in Ad Hoc Arbitration without designated set of rules, more clean clause for appointing arbitrators will be needed.

• 한국중재학회지:중재연구
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• 제28권2호
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• pp.91-110
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• 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.