• Journal of Arbitration Studies
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• v.15 no.3
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• pp.55-84
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• 2005

The arbitral award is the decision of the arbitrators on the dispute that had been submitted to them by the parties, either under the arbitration clause providing for the determination of future disputes or under submission of an existing controversy. The arbitral award has the same effect between the parties as a final and binding court judgment. The arbitration award shall acquire, as soon as it is given and delivered to each parties, the authority of res judicata in respect of the dispute it settles. The validity of an award is a condition precent for its recognition or enforcement. The validity of an award depends on the provisions of the arbitration agreement including any arbitration rules incorporated in it, and the law which is applicable to the arbitration proceedings. Such provisions usually address both the form and the content of the award. As the 'form', requires article 32 of Arbitration Act of Korea that an arbitral award should, at least, (1) be made in writing and be signed by all arbitrators. (2) state the reasons upon which it is based unless the parties have agreed that it should not, (3) state its date and place of arbitration. There are some further requirement which may have to be observed before an award which has been made by a tribunal can be enforced. (4) The duly authenticated award signed by the arbitrators shall be delivered to each of the parties and the original award shall be sent to and deposited with the competent court, accompanied by a document verifying such delivery. This rule can be interpreted as if the deposit of an arbitral award with the competent court is always required as a condition for its validity or as a preliminary to its enforcement in Korea. However, we must regard this rule which requires the deposit of an arbitral award with court, as rule of order, but not as condition of its validity. Because that the date on which the award is delivered to each party is important as it will generally determine the commencement of time limits for the making of any appeal which may be available. Furthermore, the party applying for recognition or enforcement merely has to supply the appropriate court with the duly authenticated original award or a duly certified copy thereof, not any document which proves that an the arbitral award is sent to and deposited with the competent court. In order to avoid some confusion which can be caused by its interpretation and application, the Article 32 (4) of Arbitration Act of Korea needs to be abolished or at least modified.

• Journal of Arbitration Studies
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• v.24 no.2
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• pp.109-136
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• 2014

The separability of an arbitration clause is generally recognized throughout the world, but there are no provisions of it under the Federal Arbitration Act(FAA) of the United States. As such, the controversy over the recognition of separability has developed with the rise of certain cases. The Supreme Court recognized this separability based on section 4 of the FAA in the decision of the Prima Paint case. The Court ruled that courts must decide the claim about the fraudulent inducement of an arbitration agreement itself, but they must not decide the claim about the fraudulent inducement of a contract involving a broad arbitration clause, and they have to proceed with the arbitration. The Court said that the subject of an arbitral award is set by the agreement of the parties, and thereby arbitrators can decide the issues about the fraudulent inducement of a contract on the basis of the arbitration clause when it is broad to the point of including the issues. Many courts have extended the separability beyond the fraud context to include other defenses to contract formation in the federal courts such as the occurrence of mistake, illegality, and frustration of purpose. In interpreting the parties' intention of ensuring arbitrator competence, the Supreme Court has treated differently the issues about whether the arbitration agreement exists or not and the issues about whether the preconditions for dispute resolution by a valid arbitration agreement is fulfilled or not. The Court holds that the federal policy in favor of arbitration does not apply to the former issues, and arbitrators can decide theses issues only when parties assign them clearly and unmistakably to them. However, the later issues receive a presumption in favor of arbitration; i.e., when the interpretation of a valid arbitration clause is contested, the arbitrators can decide these issues. In the First Options case, the former issue was questioned. The question of the separability of an arbitration clause is where the validity of the main contract involving the arbitration clause is contested. Therefore, the doctrine of separability did not operate in the First Options case in which the validity of the arbitration clause itself was questioned, and the decision in the First Options was irrelevant to the separability. I think that the Prima Paint case and the First Options case have different issues, and there is no tension between them.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.45
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• pp.51-82
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• 2010

The "rules of private international law" or "conflict of law rules" work to determine the governing law, the law applicable to international contracts. These rules permit parties' autonomy to choose the law applicable to their contracts in cases of both litigations and arbitrations. In this regards, the present article examines parties' five options for the choice of the law governing their contracts, which the parties should consider when negotiating and drafting an international agreement. This means that parties in international contracting should check the contents of the law that they are to choose as the governing law before doing so. The first option is to submit the contract to its own law, which can be the safest and simplest solution generally. However this option is subject to the consent of the other party, and is not appropriate when the domestic law chosen contains mandatory rules strongly protecting the other party. Secondly, the option of choosing the other party's law is not preferable in general. Even though the other party is strong enough to succeed in insisting on applying its own law, the other party is advised to counter-offer a neutral solution by suggesting the application of a transnational set of rules and principles of international contract, such as Unidroit Principles. The third option to choose the law of a third country should be taken with the caution that it should be harmonized with either, in case of litigations, the international jurisdiction clause which makes the country chosen have the jurisdiction over the dispute arising under the contract, or, in case of arbitrations, the way of selection of the arbitrator who has good knowledge of the law chosen. The fourth option of submitting the contract to the lex mercatoria or the general principles of law including the Unidroit Principles can be a advisable solution when a dispute is designed to be submitted to experienced arbitrators. The final and fifth is to be silent on the choice of the governing law in contracting. This option can be usefully available by experienced negotiators who are well familiar with the conflict of laws rules and enables the parties to avoid the difficulties to agree on the governing law issue and leave it open until a dispute arises.

• Journal of Arbitration Studies
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• v.18 no.1
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• pp.71-96
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• 2008

Arbitration is fundamentally a matter of contract, whereby contractual parties may only be required to submit a dispute to arbitration pursuant to their formal agreement. However, there are several important exceptions to this rule that have developed under common law notions of implied consent. These doctrines may serve either to benefit or to harm a nonsignatory to an arbitral agreement because either (1) the nonsignatory may compel a signatory to the agreement to arbitrate a dispute or (2) the nonsignatory may be compelled to arbitrate a dispute despite never having signed an arbitration agreement. The Court has a long-standing domestic policy of favoring arbitration, and these doctrines reflect that policy. 1. incorporation by reference An arbitration clause may apply to a party who is a nonsignatory to one agreement containing an arbitration clause but who is a signatory to a second agreement that incorporates the terms of the first agreement. 2. assumption An arbitration clause may apply to a nonsignatory who has impliedly agreed to arbitrate. Under this theory, the nonsignatory's conduct is a determinative factor. For example, a nonsignatory who voluntarily begins arbitrating the merits of a dispute before an arbitral tribunal may be bound by the arbitrator's ruling on that dispute even though the nonsignatory was not initially required to arbitrate the dispute. 3. agency A nonsignatory to an arbitration agreement may be bound to arbitrate a dispute stemming from that agreement under the traditional laws of agency. A principal may also be bound to arbitrate a claim based on an agreement containing an arbitration clause signed by the agent. The agent, however, does not generally become individually bound by executing such an agreement on behalf of a disclosed principal unless there is clear evidence that the agent intended to be bound. 4. veil piercing/alter ego In the corporate context, a nonsignatory corporation to an arbitration agreement may be bound by that agreement if the agreement is signed by its parent, subsidiary, or affiliate. 5. estoppel The doctrine of equitable estoppel is usually applied by nonsignatory defendants who wish to compel signatory plaintiffs to arbitrate a dispute. This will generally be permitted when (1) the signatory must rely on the terms of the contract in support of its claims against the nonsignatory, or (2) the signatory alleges that it and the nonsignatory engaged in interdependent misconduct that is intertwined with the obligations imposed by the contract. Therefore, this article analyzed these doctrines centering around case-law in America.

• International Commerce and Information Review
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• v.15 no.4
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• pp.287-311
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• 2013

The arbitration parties may disagree with the arbitrator's award about whether they are eligible for the dispute case. While lots of disputes cases relating to subrogation are arising, it is not easy to find subrogation arbitration system to handle them clearly. The main issue is an availability of subrogation arbitration in case of the dispute which the insurer requests the arbitration against the carrier according to the arbitration clause of Bill of Lading. The direct parties of arbitration clause of the B/L are the carrier and the holder of the B/L. Could the insurer get the position of the arbitration party in stead of the holder of the B/L after compensation if there was an accident of insurance on the way of carriage? Even though there are a few arbitral awards of subrogation, the reason of the eligibility of subrogation arbitration is not enough. This paper scrutinized precedent research papers, arbitration awards, judicial precedents, and the Automobile Subrogation Arbitration System. Vague dispute resolution system which burden corporations with so many costs must be not good for business. In the view of economic efficiency, blank of contract, reciprocality, and Coase Theorem, it is recommended that subrogation arbitration system for the international trade would be better focus on the hypothesis of "Firm Offer Character of Arbitration Clause."

• Journal of KIISE:Information Networking
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• v.30 no.1
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• pp.75-81
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• 2003

User authentication, including confidentiality, integrity over untrusted networks, is an important part of security for systems that allow remote access. Using human-memorable Password for remote user authentication is not easy due to the low entropy of the password, which constrained by the memory of the user. This paper presents a new password authentication and key agreement protocol suitable for authenticating users and exchanging keys over an insecure channel. The new protocol resists the dictionary attack and offers perfect forward secrecy, which means that revealing the password to an attacher does not help him obtain the session keys of past sessions against future compromises. Additionally user passwords are stored in a form that is not plaintext-equivalent to the password itself, so an attacker who captures the password database cannot use it directly to compromise security and gain immediate access to the server. It does not have to resort to a PKI or trusted third party such as a key server or arbitrator So no keys and certificates stored on the users computer. Further desirable properties are to minimize setup time by keeping the number of flows and the computation time. This is very useful in application which secure password authentication is required such as home banking through web, SSL, SET, IPSEC, telnet, ftp, and user mobile situation.

• Journal of Korea Port Economic Association
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• v.25 no.2
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• pp.149-176
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• 2009

In Count case, the owners claimed from the charterers the amount of their loss resulting from the delay to the Count caused by the blockage of the channel due to stranding of the Pongola on the ground that this loss resulted from breach by the charterers of the safe port provisions. The Claim was referred to arbitration and dealt with on written submission. In a reasoned award, the arbitrators upheld the owners' claim. The charterers seek an order reversing the award or remitting it to the arbitrators for further consideration : (1) That the tribunal was wrong to find that the port of Beira was unsafe and that in consequence the charterers were liable to the owners in damages for detention. (2) That the tribunal was wrong to find that the port was unsafe in the abstract by reference to the fact that two other vessels had grounded there. (3) Having held that the Count was delayed for a little over four days by the fact that, after the charterers had nominated the port, the Pongola had grounded in the access channel, the tribunal should have held that the port was not prospectively unsafe. On the that the grounding the Pongola was caused by the characteristics which made the port an unsafe port to nominate for the Count. The court was held that it was not an independent event which broke the chain of causation between the breach of contract and the owner's loss. For those reasons, the court was upheld the arbitrator's award.

• Korean Journal of Construction Engineering and Management
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• v.20 no.4
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• pp.104-113
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• 2019

Construction dispute about Extension of Time are complexly intertwined with various issues. The duration delay analysis defines the impact the issue has on the duration variation. And The international court and the arbitrator use the results of the analysis as a basis for reasonable duration judging. However, most of the domestic Construction sites have not established a business process for Extension of Time litigation. Therefore, Analysis data are collected after the occurrence of the dispute, there is not enough basic data of analysis almost. This study sought to improve the management efficiency by organizing information requirement for delay analysis and suggesting a reasonable business process. As a result of applying the proposed process to actual construction duration extension disputes, about 33% of practitioners, 46% of contractors, and 48% of legal advisors were satisfied with the process application site And Matrix validation was 91% identical. This study suggests that it is possible to increase the efficiency of the construction duration analysis work used as a basis in the construction dispute. Finally, the Computer based system design for this process should continue in the future.

• Journal of Arbitration Studies
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• v.31 no.2
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• pp.3-22
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• 2021

Civil and commercial disputes can be resolved through alternative dispute settlement systems other than court proceedings. Among them, the arbitration procedure is a system that is clearly distinguished from the mediation procedure in which the dispute is terminated by agreement between the parties. The arbitration proceedings shall have the same effect as the result of the final judgment by the decision of a third-party arbitrator, and its essence is a judgment. The Korean Arbitration Association Studies was founded in December 1990 to recognize the importance of arbitration procedures and conduct specialized research on them, with professional research on 'arbitration procedures' continuing until today. Thus, the Korean Arbitration Association Studies is positioned as the only specialized research organization in the field of arbitration. In the case of the Korean Arbitration Association Studies, which is the only society in Korea related to arbitration and alternative dispute resolution, the members are mainly scholars majoring in trade and commerce and ones majoring in law. This situation reflects the distinctive character of the arbitration system because it is a matter of dispute procedures related to trade and commerce and many scholars who research trade and commerce need to prepare for possible disputes. In addition, the arbitration procedure is a dispute settlement procedure that substitutes for litigation because it has research value as a legal system. In particular, the 'Journal of Arbitration Studies' published by the Korean Arbitration Association plays a role in mediation, as well as mediation and presentation of research papers in the ADR field. This study analyzes the trends of mediation and ADR-related papers published in 'Journal of Arbitration Studies', an academic journal of the Korean Arbitration Association Studies, in four dimensions, celebrating the 30th anniversary of the Korean Arbitration Association Studies. First, this study examined which sub-themes are mainly studied among the various viewpoints of mediation through thematic analysis. Second, it looked at what methodology was used to study intervention at the methodological level. Third, it assessed what countries and regions had been mainly studied at the regional level. Fourth, in terms of content, what kind of research had been mainly conducted and what kind of research was relatively insufficient was investigated, analyzing the research results of the last 30 years and presenting a milestone for the research direction of 'Journal of Arbitration Studies' in the future.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.38
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• pp.181-226
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• 2008

The purpose of this paper is to describe the settling procedures of the investor-state disputes in the FTA Investment Chapter, and to research on the international arbitration system for the settlement of the investor-state disputes under the ICSID Convention and UNCITRAL Arbitration Rules. The UNCTAD reports that the cumulative number of arbitration cases for the investor-state dispute settlement is 290 cases by March 2008. 182 cases of them have been brought before the ICSID, and 80 cases of them have been submitted under the UNCITRAL Arbitration Rules. The ICSID reports that the cumulative 263 cases of investor-state dispute settlement have been brought before the ICSID by March 2008. 136 cases of them have been concluded, but 127 cases of them have been pending up to now. The Chapter 11 Section B of the Korea-U.S. FTA provides for the Investor_State Dispute Settlement. Under the provisions of Section B, the claimant may submit to arbitration a claim that the respondent has breached and obligation under Section A, an investment authorization or an investment agreement and that the claimant has incurred loss or damage by reason of that breach. Provided that six months have elapsed since the events giving rise to the claim, a claimant may submit a claim referred to under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings; under the ICSID Additional Facility Rules; or under the UNCITRAL Arbitration Rules. The ICSID Convention provides for the jurisdiction of the ICSID(Chapter 2), arbitration(Chapter 3), and replacement and disqualification of arbitrators(Chapter 5) as follows. The jurisdiction of the ICSID shall extend to any legal dispute arising directly out of an investment, between a Contracting State and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the ICSID. Any Contracting State or any national of a Contracting State wishing to institute arbitration proceedings shall address a request to that effect in writing to the Secretary General who shall send a copy of the request to the other party. The tribunal shall consist of a sole arbitrator or any uneven number of arbitrators appointed as the parties shall agree. The tribunal shall be the judge of its own competence. The tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. Any arbitration proceeding shall be conducted in accordance with the provisions of the Convention Section 3 and in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. The award of the tribunal shall be in writing and shall be signed by members of the tribunal who voted for it. The award shall deal with every question submitted to the tribunal, and shall state the reason upon which it is based. Either party may request annulment of the award by an application in writing addressed to the Secretary General on one or more of the grounds under Article 52 of the ICSID Convention. The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each Contracting State shall recognize an award rendered pursuant to this convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. In conclusion, there may be some issues on the international arbitration for the settlement of the investor-state disputes: for example, abuse of litigation, lack of an appeals process, and problem of transparency. Therefore, there have been active discussions to address such issues by the ICSID and UNCITRAL up to now.