• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.58
• /
• pp.99-124
• /
• 2013

International commercial arbitration is a specially formed mechanism for the final and binding settlement of disputes arisen between contracting parties regarding procedures, structures or other contractual relationship agreed by them. It is a resolution system which is processed autonomously by arbitrators who are appointed by contracting parties without involving the national court. If the contracting parties want to settle their disputes by arbitration, there must be a valid agreement. With a valid agreement, the most important concern is which law(called as the substantive law) should be applied in order to determine the rights and obligations of both contracting parties in relation to the dispute. At this point, the substantive law is really important because it is applied to the dispute itself directly during proceedings as well as it plays an crucial role in scrutiny and enforcement of arbitral awards. This article discusses about the substantive law under international commercial arbitration, specially focusing on the regulations of the ICC rules of arbitration, which is the most widely used all over the world and UNCITRAL Model law, which most countries' rule and laws are based on. By discussing how these rules and regulations should be interpreted and applied, it is expected to provide practical help to practitioners when they agree on an arbitration agreement.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.77
• /
• pp.91-112
• /
• 2018

Mediation is one of several alternatives to litigation or arbitration. It is the most informal of the alternatives and the only one that gives the parties control over the outcome. The mediator in mediation is there to help the parties persuade each other that it is in their best interests to settle. As several advantages of mediation, it is considered as the fastest way to resolve a dispute because procedures associated with litigation are not imported into the process. In mediation, the client's resources are focused on resolving the dispute as opposed to building armaments of evidence to buttress legal and factual positions. The AAA commercial mediation rules and operations in the USA are very successful owing to professional training for mediators and simple procedures for mediation to the public. Comparison with USA mediation, KCAB mediation system has several weak points. KCAB mainly deals with administrative matters related to Foreign Trade Law. Therefore, it is necessary for KCAB to come up with more improved international commercial mediation. For example, mediation should be promoted to the public as who easily rely on litigation or arbitration. Second, Setting a rule for easy access to mediation is needed by bench marking AAA's mediation guidelines and operations. Third, professional mediators should be developed by establishing relevant ADR course in law schools. This article investigated some differences of mediation system between KCAB in Korea and AAA in USA, and present some suggestions in order to promote International commercial mediation in KCAB.

• Transactions of the Korean Society of Automotive Engineers
• /
• v.23 no.3
• /
• pp.315-325
• /
• 2015

Smart Car market has been experiencing continuous growth to drive leading companies in automotive and IT industries to focus on advancing related technologies. As the IT technologies fuse into automotive technologies, the patent litigation has been showing changes. One of the prominent changes in patent litigation pattern of Smart Car field is the increased activities of the Non-Practicing Entities (NPEs), whose main field has been the IT area. However, the automotive companies have been mainly focusing on preventing patent disputes against competitors through trend analysis, which caused them to become relatively vulnerable to the attacks from NPEs. In this study, we developed a methodology for monitoring and analyzing the activities of NPEs using network analysis tools to suggest effective strategies for manufacturing companies to fortify their ability to respond against unanticipated attacks. Our methodology, which is developed for the Smart Car field, can also be useful for other fields such as IT and electronics.

• Strategy21
• /
• s.31
• /
• pp.220-250
• /
• 2013

South Korean national security strategy should be developed to effectively handle and counter increasing maritime threats and challenges. There are three major maritime threats South Korea faces today; maritime disputes on the EEZ boundary and Dokdo islet issues, North Korean threats, and international maritime security. Maritime disputes in the region are getting intensified and turned into a military confrontation after 2010. Now regional countries confront each other with military and police forces and use economic leverage to coerce the others. They are very eager to create advantageous de facto situations to legitimize their territorial claims. North Korean threat is also increasing in the sea as we witnessed in the Cheonan incident and Yeonpyoung shelling in 2010. North Korea resorts to local provocations and nuclear threats to coerce South Korea in which it may enjoy asymmetric advantages. The NLL area of the west sea would be a main hot spot that North Korea may continue to make a local provocation. Also, South Korean national economy is heavily dependent upon foreign trade and national strategic resources such as oil are all imported. Without an assurance on the safety of sea routes, these economic activities cannot be maintained and expanded. This paper argues that South Korea should make national maritime strategy and enhance the strength of naval forces. As a middle power, its national security strategy needs to consider all the threats and challenges not only from North Korea but also to maritime security. This is not a matter of choice but a mandate for national survival and prosperity. This paper discusses the importance of maritime security, changing characteristics of maritime threats and challenges, regional maritime disputes and its threat to South Korea's security, and South Korea's future security strategy and ways to enhance the role of naval forces. Our national maritime strategy needs to show middle and long term policy directions on how we will protect our maritime interests. Especially, it is important to build proper naval might to carry out all the roles and missions required to the military.

• Journal of Arbitration Studies
• /
• v.26 no.4
• /
• pp.83-109
• /
• 2016

Recently, China has brought many political, economical, and ideological changes in order to complete the "socialistic market economy." In terms of legal system, they make much effort to seek compatibility and stability of law and order. China recognizes that the breakdown of corruption, which is rampant in society, is an essential short-cut for national development. To realize anti-corruption reformation, it strengthens the supervision of relatives and close officials of high-ranking government officials. Recently, China has suffered from expanded trade disputes internationally and has also experienced severe management-labor conflicts domestically due to economic recession. From 2012 onward, civil lawsuit and other litigations have increased sharply. Also, they face severe conflicts in the land system. It is expected that many disputes arise due to speculation on rural housing. Meanwhile, Mongolia expands the size of trade with Korea in mutual cooperation since their diplomatic relation in 1990 by entering more than 20 treaties and agreements. As Mongolia has rich natural resources and Korea is equipped with advanced science and technology, the two countries have opportunities to develop mutually beneficial cooperative relations. Recently, the arbitration system has attracted attention instead of litigation as a means of dispute settlement in line with the expansion of trade between Korea and Mongolia. This study would be helpful to figure out desirable methods for dispute settlements in case of trade disputes among Korean companies that would advance into China and Mongolia.

• Journal of Arbitration Studies
• /
• v.26 no.4
• /
• pp.111-128
• /
• 2016

Trade between nations has been considered as exchange for material things. According to recent changes in the paradigm of global trade, trade is shifting focus on the exchange of an immaterial being. Among them, the service sector is growing fast and the health service has shown exceptional growth as the healthcare market is consistently expanding. It is also part of the global service targeting people all around the world. People visiting other countries for medical service tend to spend more money and stay longer than a traveler. For these reasons, global medical service is in the spotlight as a promising and higher value-added business. The global medical service industry has been developed around Asia, specifically Thailand, Singapore, India, etc. Compared to them, Korea has come late into the market of global healthcare and the Korean government is striving to attract foreign patients. Nevertheless, there is a lack of effort to make foreign patients visiting Korea revisit Korea. Regarding foreign patients' medical disputes, these are not yet a problem officially; however, the government cannot leave the matter as it is. Medical dispute related with foreign patients is a highly complex issue due to different languages, nationalities, cultures, etc. Particularly, Korea's medical tourism is developed with Chinese visiting Korea for plastic surgery and cosmetic procedure. Thus, the Korean medical tourism market can be crowded with a lot of minor medical agencies, so-called brokers, getting foreign patients connected to the medical institutions. Consequently, Korea has received a large number of complaints and dissatisfaction. No one can predict and know what's supposed to happen in the future. Efforts of the Korean government and medical institute attracting foreign patients could be in vain. In order to take a step forward, this paper will do research on present conditions and look for strategies of improving this industry, focusing on the part of medical agency and contributing to the improvement of the Korean medical tourism industry.

• Journal of Arbitration Studies
• /
• v.29 no.2
• /
• pp.3-34
• /
• 2019

The resumption of economic cooperation between South and the North Korea will be a new growth engine for our economy. Many Korean companies are preparing to invest in North Korea in accordance with the progress of inter-Korean relations. However, there are many risks inherent in inter-Korean economic cooperation, as experienced in previous cases. Specifically, one should be prepared for unfair measures such as the expropriation of investment assets of South Korean enterprises by North Korea authorities. Therefore, it is essential to review the protection measures of investment in North Korea and to review the investment dispute settlement system. The South and the North have an agreement to establish the inter-Korean Commercial Arbitration Committee to resolve the disputes that may arise if one party's investments are lost due to inappropriate or unfair measures due to the other party's authority. However, the Investment Agreement, which governs the Inter-Korean Commercial Arbitration Committee, contains a number of declarative statements that are somewhat ineffective. Even today, nearly 20 years after the adoption of the Agreement, the specific detailed procedures have shown no real progress, such as in the enactment of arbitration rules. Therefore, at present, it is difficult to expect a system that can effectively address the damage of our corporations which have invested in North Korea. When the assets freeze after the suspension of Kumgang tourism and the closure of the Kaeseung Industrial Complex by North Korea, the activation of the inter-Korean Commercial Arbitration Committee is the most important prerequisite for economic cooperation with North Korea. For this purpose, the resolution of disputes through the Inter-Korean Commercial Arbitration Committee has to be made more concrete, with the effectiveness of the dispute settlement system enhanced by means of various efforts.

• Journal of Arbitration Studies
• /
• v.28 no.4
• /
• pp.89-110
• /
• 2018

The purposes of this study are as follows: First, this study reviews the Online Dispute Resolution (ODR) regulations of the EU to resolve disputes which can arise in international e-commerce in the future. Second, this study tries to seek out alternative solutions to dispute resolutions based on these regulations. Third, this study increases the efficiency of the transactions by proposing effective and satisfactory dispute resolution methods for international e-commerce. First, this study reviews the concept of cross-border e-commerce, generally explores ODR, and creates comparisons with Alternative Dispute Resolution (ADR). Subsequently, this study looks into domestic ODR system and analyzes the regulations of EU ODR. This study suggests the implications of the European ODR regulations in the conclusion. The EU ODR platform is considered greatly significant in that it has increased the possibility of settlements in small disputes by enhancing consumers' accessibility to ADR procedures. Therefore, this thesis proposes a method for Korean companies to resolve disputes that may arise in e-commerce with EU by using the ODR platform. As a result, it is expected to increase the competitiveness of Korean companies in the EU market. Both legislative trends related to the ODR of the EU and establishment of the EU ODR platform have significant implications for Korean businesses in Europe. This study is expected to be useful for our businesses in the EU in reviewing the applicability of the EU ODR regulations and the dispute settlement procedures through the EU ODR platform. In addition, this study is expected to prove useful in relation to consumer protection by enhancing consumers' accessibility to dispute settlement institutions in domestic electronic commerce.

• The Korean Society of Law and Medicine
• /
• v.23 no.3
• /
• pp.89-115
• /
• 2022

In this article, the Medical Act, the Emergency Medical Act, Act on remedies for injuries from medical malpractice and mediation of medical disputes were reviewed and interpreted based on the Civil Act. In the health and medical field, there are various laws that reflect changes in the medical field due to the development of health and medical technology, and their revision is very frequent. And the legislation has become very complicated. They contradict each other or require interpretation. In this situation, a person must take considerable care not to violate the law. In many cases, specific guidelines or authoritative interpretation are required to apply the law. Even guidelines and authoritative interpretations often conflict with civil law. In this article, errors in the legal text related to health care were found. In addition, it found a case that contradicts the civil law perspective in interpretation. Thus, it was confirmed that civil legal thinking was necessary to legislate, interpret, and apply health care-related laws.

• The Korean Society of Law and Medicine
• /
• v.17 no.1
• /
• pp.281-297
• /
• 2016

In order to make a treatment plan and outcome prediction, it is important to evaluate accurately and objectively osseous tissues of the implant area. The evaluation of osseous tissues is the most objective method for the decision of production time of upper structure of alveolar bone. However, the evaluation of osseous tissues contains contradiction because it is made by subjective opinions of dental surgeons. Many dentists also point out the problem of subjective evaluation of osseous tissues. Therefore, it is necessary to create accurate and objective standards. Previously, the evaluation of bone density depends on dentist's subjective sensation during drilling procedure of implant. However, the HU(Hounsfield unit) figure of CT(computed tomography) scan allows of objective and precise categorization of bone density now. Misch and Kircos divided the bone density levels from D1 to D5 with subjective separation of bone density. Their method also depended on not objective and quantification data but subjective separation by sensation. Thus, we need the evaluation of implant area through comparative analysis of more objective and quantification data. Implant treatment comprises the highest frequency of medical disputes of dental clinic. If we bring objective checkup and reasonable treatment method in the implant treatment, we can deduce more reasonable results, and the failure late of implant treatment also can decrease. The ultimate objective of this study is the minimization of dental disputes between dental patients and dentists by creating new legal standards on the basis of objective and quantification data.