• Journal of Arbitration Studies
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• v.31 no.1
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• pp.107-127
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• 2021

Vietnam is an important country with many trade transactions with the Republic of Korea. Arbitration is a method of resolving disputes that can arise with the increase in trade transactions. It is essential to study the legal system and precedents of Vietnam on the approval and enforcement of foreign arbitral awards. Such is the case because the law in Vietnam and the court's position on the approval and enforcement of foreign arbitration awards issued by the courts depend on the possibility of realizing the parties' rights concerning their disputes. Therefore, it is of great value both theoretically and practically to analyze the exact differences between approval and the denial of approval. Vietnam has enacted the Commercial Arbitration Act, which replaces the previous Commercial Arbitration Decree and creates an arbitration-friendly environment that meets international arbitration standards. Regarding the approval and execution of foreign arbitration awards, the Commercial Arbitration Act, the Civil Procedure Act, the Civil Execution Act, and the Vietnam Foreign Arbitration Awards Approval and Enforcement Ordinance are regulated. Following these laws and regulations, the reasons for the approval, enforcement, and rejection of the arbitral award are specified. In accordance with these laws and inappropriate arbitration agreements, an arbitral award beyond the scope of its right of disposition, an arbitral tribunal, or the concerned parties could not be involved in a proceeding or an arbitral award if the involved party does not have an opportunity to exercise its rights lawfully. If the state agency in the forum does not recognize the arbitral award, the dispute is not subject to arbitration under Vietnamese law, or the arbitral award does not conform to the basic principles of Vietnamese law, the parties are not bound, and the foreign arbitration award is rejected for approval and execution.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.77-95
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• 2007

This article focuses on the history and evolution of the US court's attitude towards unilateral arbitration and dispute resolution clauses, but also considers the practical approach of national courts to theses clauses. It goes on to consider some potential pitfalls in the operation of unilateral clauses, which should be borne in mind when developing a strategy for bringing or defending a claim which falls within the scope of a unilateral clause. There can be few objections to the general validity of unilateral arbitration clauses. The principle of party autonomy is the driving force behind international arbitration and, provided it is tolerably clear that the parties intended the arbitration clause to operate unilaterally, courts should be reluctant to interfere with the parties' agreement. There are also no persuasive public policy reasons why such clauses should not be upheld in commercial agreements. In addition to the issue of whether such unilateral clauses are permissible under certain law, it is important to be aware of how they should properly operate in practice, that is, useful guidance on the subject of the proper operation and effect of such clauses where they are intended to be used to enable a party to decide whether, and in what circumstances, a claim should be referred to court or to arbitration.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.91-113
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• 2017

UN Convention on International Sale of Goods (CISG) and International Commercial Arbitration aim at the promotion and facilitation of international trade. Both of them share similar general principles; i.e., party autonomy and pacta sunt servanda. Also they are often applied concurrently in the case of the international commercial trade. The purpose of this article is to investigate whether the CISG could apply the formation of the arbitration clause that is included in the main contract governed by CISG. Sellers and buyers have freedom of designating choice of law that is applied to their contracts. An international arbitration agreement is presumed to be separable from the contract in which it is found. However, arbitration clauses commonly form part of a general contract. Thus, the CISG is intended to be applied to dispute resolution clauses, including arbitration clause even if it is not completely suitable. Notably, there is a fundamental distinction between the CISG and arbitration. The CISG abolished the formalities of contract. New York convention requires Contracting States' Courts to enforce written international agreements to arbitrate.

• Journal of Arbitration Studies
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• v.26 no.2
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• pp.115-134
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• 2016

Arbitration is a consensual process in which a dispute is resolved by an impartial arbitrator outside the courts. Arbitration is flexible, neutral, time- and cost-efficient, and confidential. In 1985, the United Nations Commission on International Trade Law(UNCITRAL) enacted the UNCITRAL Model Law on International Commercial Arbitration to help countries reform and modernize their arbitration laws. In 1999, South Korea adopted the model law. Later in 2006, UNCITRAL amended the model law to promote international arbitration. The amended model law includes, among other things, specific provisions regarding interim measures. In 2016, in order to adopt the newly amended version of the model law, South Korea revised its Arbitration Act. The revised act includes a more comprehensive legal regime regarding interim measures, including definitions, types, processes, requirements, the court's recognition and enforcement, and liability. This paper examines the revision of the Arbitration Act of Korea and its legislative intent, presents the problems, and offers recommendations for resolving the problems.

• Korea Trade Review
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• v.43 no.1
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• pp.25-45
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• 2018

International commercial arbitration is an inseparable part of today's international commerce. International transactions are becoming increasingly complex. Problems brought by multi-party and multi-contract arbitration pose problems for traditional arbitration systems. The Korean Commercial Arbitration Board(KCAB) has released updated International Arbitration Rules(2016 Rules) and has adopted innovations similar to those introduced in the rules of major international arbitration institutions in recent years. The changes in the 2016 Rules are intended to increase the efficiency of the arbitral process, and introduce the process for consolidation of claims. For international commerce contracts, it would be appropriate, and necessary, to adopt a multi-party arbitration clause, as consolidated arbitration provides effective resolutions for multi-party disputes.

• Journal of Arbitration Studies
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• v.15 no.2
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• pp.125-162
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• 2005

This paper examined excluded risks of insurer in marine insurance generally, and found out the existing studies on the excluded risks, which were accomplished partially and fragmentarily, to conduct a comparative analysis of marine insurance based on the general flow of claim adjustment. It arranges the existing studies to settle a dispute between the parties -insurer and assurer- and studies the excluded risk based on risk change of the insured by analyzing characteristic and class of security violation, and meaning, form, effect of risk change. it inquires into and analysis cases of the Korean Supreme Court related to the exclusion and illegal act of marine insurance to compare marine theorists' opinion with commercial law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.50
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• pp.139-161
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• 2011

The retroactive insurance is the system that the Assured, the principal of insurance contract shall be entitled to recover for insured(beneficiary in insurance of persons) loss during the period of insurance covered by this insurance, not withstanding that the loss had occurred before the contract of insurance concluded. The retroactive insurance is applicable to both property insurance and insurance of persons. The commercial law of Korea stipulates its rules in the insurance volume. The ultimate and definite articles of cargo insurance about the retroactive insurance are stipulated in MIA and ICC. In general insurance of persons stipulates relevant articles in the clause. Even though articles pertinent to the retroactive insurance are written explicitly in relevant law, it is difficult to settle the claim just by using specified rules of related regulations. Therefore, a claim is settled down based on the actual facts. After studying some of the actual dispute facts connected with the retroactive insurance having properties mentioned, this paper suggests controversial points and alternative ideas.

• Journal of Arbitration Studies
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• v.10 no.1
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• pp.26-46
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• 2000

International arbitration has been recognized as an effective dispute resolution method. Among the arbitration institutions, the ICC(International Chamber of Commerce) international court of arbitration is one of the most well-known and frequently chosen organizations to which international claimants have resorted, when they were confronted with international disputes. In this paper, costs in the ICC arbitration are compared with those in the KCAB(Korean Commercial Arbitration Board) arbitration. seeking efficient ways to reduce the costs while maximizing the quality of arbitral awards. Three main points about costs in the ICC arbitration and the KCAB arbitration are discussed and analysed, First, the cost structures are analysed and decomposed into manageable units. Second, the cost allocation is discussed to clarify its proportional responsibility among the arbitration parties. Third, how advances in arbitration costs are conducted is examined to explore a well established procedure of arbitration. In conclusion, the KCAB arbitration procedure has been found faster and cheaper than the ICC arbitration procedure in terms of time and costs, respectively. However, it can be cautiously suggested that the quality of arbitral awards made by the KCAB is not necessarily higher than that made by the ICC.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.201-216
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• 2018

After the adoption of the Lisbon Treaty, the European Union's Common Commercial Policy now belongs to the exclusive competence area of the EU, including the foreign direct investment (FDI) policy. Regarding the bilateral investment protection treaties (BITs) between the EU Member States, the European Commission is of the view that such BITs should be discarded. On March 6, 2018, the Court of Justice of the European Union (CJEU) held in the Achmea BV v. Slovakia case that a BIT between the EU Member States, as well as arbitral awards based on that BIT, is not subject to request for preliminary rulings under the Treaty on the Functioning of the European Union (TFEU), and thus they are not compatible with the EU law. However, the judgment did not silence the controversy. Instead, many people questioned the legal reasoning and the legitimacy of judgment, and therefore the problem is still ongoing.

• International Commerce and Information Review
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• v.8 no.1
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• pp.337-356
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• 2006

The Korea-US dispute on telecom standards has shown the inability of existing trade rules that can be applicable to standardization policy in telecom services sector. It has entailed plenty of dissenting but unsolved trade issues, including legal jurisdiction over technical standards on telecom services and their compatibility with WTO agreements. Question remains how US will cope with this tricky trade puzzle. This paper points out that Korea-US negotiations on telecom standards have provided US with a momentum to think seriously over the necessity of further rule-setting on telecom standards, and FTAs are the rescue train for US to ride on for that purpose. That is to say, US is taking advantage of FTA as a means to promote its national commercial goals by creating trade rules, which seek to deprive its trading partners of regulatory autonomy in telecom standardization. Based upon the research output, it is very important for Korean government in the upcoming Korea-US FTA negotiations to ensure facilitating public policy objectives in telecom standardization as possible as it can, and not to adopt the provision of international standards in the existing US' FTAs.