• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.59
• /
• pp.27-57
• /
• 2013

Traditionally construction has been an industry that favoured ADR over formal litigation due to the complexity of technical issues. However, over the past decade construction arbitration has come under increasing attack for its rising costs and growing delays, and expansion of arbitration processes to the point that those processes are approaching the more complex and formal processes followed to resolve disputes litigation. As a result, parties are looking for new methods of resolving their disputes in a more efficient and economical manner, such as ODR. A review of the history of ODR and the practical applications of ODR in use today lead to the conclusion that the concept of ODR for construction dispute resolution appears to be possible and realistic. The advantages seem to outweigh the disadvantages, especially given the solutions suggested to overcome many of the disadvantages. While ODR may not be a realistic venue for large complex construction cases, it may be just the ideal venue for smaller and simple construction disputes. In conclusion, given the advantages that ODR arbitration does offer, the most realistic use of ODR in the short term would involve disputes consisting of a simple, one-dimensional dispute within which the parties can stipulate to the facts in the case. In such simple disputes ODR may be not only an appropriate vehicle within which the dispute can be resolved; it might be more easily accepted by the parties as the preferred platform for resolution. Hopefully, international institutions of arbitration will be successful in their development of a international standards and platform fir disputes that can be adapted for use in construction and will serve as the first step in developing ways to handle small construction claims, thereby allowing parties to resolve their disputes in a faster and more economical manner.

• Journal of Arbitration Studies
• /
• v.29 no.3
• /
• pp.99-119
• /
• 2019

In recent times, the volume of cross-border e-commerce has witnessed an upward trend and has been accompanied by increased disputes, with cross-border e-commerce being characterized mainly by low value and large volume issues. For this reason, Online Dispute Resolution (ODR) was formed to carry out dispute resolutions in cross-border e-commerce. A virtual multi-door ODR platform for small value, cross-border disputes in e-commerce is then proposed in this paper. For a couple of decades, researchers have tried to employ Artificial Intelligence (AI) to Law. However, it turns out that they were faced with a couple of obstacles to integrate AI to Law since it is highly difficult to program AI to process the common sense of a human being. For example, AI cannot assimilate the affective side of a human being, and it is problematic to integrate a human being's common sense into the AI system. Considering this situation, this study puts forward an ODR model for cross-border e-commerce in the evolutionary perspective.

• Journal of Arbitration Studies
• /
• v.11 no.1
• /
• pp.75-93
• /
• 2001

The advantages of arbitration such as promptness, economy and flexibility apply to the disputes arising from corporate governance between shareholders and a corporation. The confidentiality of arbitration can be particularly highlighted in the disputes among the members inside corporation. But it appears that the shareholders believe litigation the best way to pursue liabilities of managers of corporation and improve the system of corporate governance. And it is claimed that the current litigation system lacks the implementation of shareholders rights due to structural deficiency and therefore need bring class actions into the system of Korean jurisprudence. The OECD, which afforded the rescue finances to Korea, also recommended shareholder class actions as a way to improve corporate governance. Class actions have merits but even advanced countries consider the changes of existing system or only stay class actions in the stage of discussion. Rather, legal experts urge arbitration to be used more frequently and the Courts also approved the dispute resolutions of the disputes as to corporate governance through arbitration. There is no report in Korea that arbitration was used to resolve the disputes between shareholders and the managers, or between shareholders and corporation, which is listed in the Stock Market. There only are the debates for bring class actions into the judicial system between NGOs and the organizations of corporate managers. But arbitration has greater advantages in resolving the disputes among the members of corporation that any other methods for dispute resolution. Arbitration can interpret flexibly the mandatory provisions of the Statutes of Security and the Code of Commerce to meet the needs of parties involved, which is not possible to the Courts. Arbitration can issue the award to meet the equity of the parties. And arbitration can avoid a resolution of All or Nothing by fully considering the specific situations of Korean corporations(such as family-dominated management) and can issue the award beneficial to all parties of shareholders, managers and corporation. Thus it should be sought to resolve the disputes as to corporate governance through arbitration.

• Journal of Arbitration Studies
• /
• v.15 no.1
• /
• pp.67-93
• /
• 2005

To realize the spirit of South-North Joint Declaration of June 15, 2000, the authorities concerned of South and North Korea have reached agreements to settle commercial disputes as well as to set up a South-North arbitration rule which is becoming a problem of vital importance between South and North Korea. The purpose of this paper is to analyzed and review carefully the drafting of Commercial Arbitration Rule of the commercial Arbitration Committee of the South-North Korea so The South-North Korea Commercial Rule is an institutional organization for resolution of commercial disputes arising form trade and investment between south and north Korea. Under the situation, it is becoming a problem of vital importance how to manage and control the Arbitration Rule for prompt and effective resolution of South-North Korea of commercial disputes It is probable that the drafting of Commercial Arbitration Rule of the Commercial Arbitration Committee in South Korea should be written by the Commercial Arbitration Committee of South Korean arbitral body after these organizations are established and appointed. it's not recommendable that we the South-North Korea write the only enc South Korean draft of the Commercial Arbitration Committee of the South-Nonh Korea. The Korean Commercial Arbitration Board(KCAB) should be designated as the arbitration institution of South Korea because the KCAB is the only authorized institution in South Korea, statutorily empowered to settle any kind of commercial disputes at home and abroad.

• Journal of Arbitration Studies
• /
• v.28 no.2
• /
• pp.249-275
• /
• 2018

Today's Internet environment is growing rapidly, and transactions based on it are also rapidly increasing. E-commerce allows merchants and consumers in different countries to easily trade goods across borders. However, the increase in international consumer transactions through the Internet is accompanied by an increase in disputes. International consumer transactions are characterized by a distinction among long distance, small sum, and different jurisdictions. International consumer transactions cannot be solved only by way of resolving disputes in past international transactions. The best way to resolve disputes between international carriers and consumers is through the Internet. In this regard, UNCITRAL has been preparing to enact legislation on ODR as a solution to international electronic trade disputes and, as a result, UNCITRAL adopted guidelines for operating the ODR procedure for building the ODR platform. The European Union has also increased its disputes in the European Union, which is active in the intra-regional market. Institutional improvements were made to solve this problem; therefore, the European Union (EU) has enacted the ODR Regulations for EU consumer disputes. Based on such, this study constructed the ODR platform, which is used as a way to resolve consumer disputes in the regional market.

• Journal of Arbitration Studies
• /
• v.21 no.2
• /
• pp.27-46
• /
• 2011

In the intellectual based society of the 21th century, intellectual property of nation and enterprise management has been the key element of nation's competitiveness and development. Therefore in countries like Korea, China, and many other countries, intellectual property of advancement strategy are being constructed and intellectual properties are protected at national level. Top priority task of protecting the intellectual property is to efficiently resolute intellectual property right disputes. Considering the nature of intellectual property right and arbitrage system, arbitration to solve intellectual property disputes is realistically the best method. However, not all cases of them are qualified. In order to relieve the intellectual property disputes through arbitration, qualification must be obtained. During the process, generally and globally, intellectual property right dispute is evaluated by three parts, intellectual property right contract dispute, intellectual property right violation dispute, and intellectual property right validity dispute. Based on UN's "Convention on the Recognition and Enforcement of Foreign Arbitral Awards Agreement" in 1958, June 10th, in New York, both arbitrage organization and judgment can be approved in both Korea and China countries. However, as of today, there is a big gap of arbitration qualification between two countries, which can be troublesome if intellectual property right disputes arise. For instance, in Korea, intellectual property right contract disputes and intellectual property right violation disputes are both generally accepted as arbitration qualification. However for intellectual property right validity dispute, arbitration qualification is only accepted for non-registered intellectual property as in copyright entity. It does not apply to other registered intellectual property right as in patents. In China, arbitration qualification is accepted for intellectual property right contract dispute, and also accepted for intellectual property right violation dispute to copyrights but restricted to others. As for intellectual property right validity dispute, arbitration qualification is completely denied. Therefore, when there is an intellectual property right dispute between Korea and China, the biggest problem is whether China will accept arbitrage judgments made in Korea. Theoretically, arbitrage judgement made in Korea should be also accepted in China's court. However, considering the criticism of China's passive nature of arbitration qualification for its own local intellectual property right disputes, it's very unlikely they'll actively accept arbitrary judgment made in foreign countries. Korea and China must have a more open minded approach for intellectual property disputes and arbitration qualification. Base on WTO's Intellectual Property Right Agreement, it's being defined as private right. Therefore, sovereign principle should be the basic principle of solving intellectual property right disputes. Currently, arbitration qualification is expanding internationally. So both Korea and China must also follow the trend expand the arbitration qualification with a more open minded and forward looking approach, for the good of intellectual property disputes.

• Journal of Arbitration Studies
• /
• v.24 no.1
• /
• pp.85-109
• /
• 2014

Mediation and Arbitration are two distinct ADR processes. Their dissimilarity lies in the principle that in mediation the parties themselves decide what the resolution to the problem is, whereas in arbitration the arbitrator makes that determination. Med-Arb, hybrid of the two methods, is a fairly new ADR process dating back to the 1970s. Med-Arb capitalizes on the advantages of both mediation and arbitration, while eliminating many of their disadvantages. Mediation has the advantage of allowing for resolutions rather than decisions. Arbitration has the advantage of guaranteeing that the matter will be resolved when the procedure is over. In Med-Arb, the participants agree to be parties to mediation, and if the mediation comes to an impasse, a final settlement will be reached through arbitration. This study first explicates the origin and the development of Med-Arb in the United States. This study shows that the emergence of Med-Arb is benefited from the fact that arbitration has lost its own advantages ie, speed, cost-saving, and maintenance of an ongoing relationship between the disputants. Second, this study analyzes four cases in which Med-Arb is applied to various kinds of disputes as a tool of dispute resolution: labor disputes, entertainment disputes, will disputes, and international commercial disputes, consecutively. All those case studies show the generality of Med-Arb as a dispute resolution channel. Third, this study compares the advantages and disadvantages of Med-Arb. Finally, this study discusses the implications of Med-Arb. In particular it provides the universality of this hybrid form of dispute resolution in the East and West. For example, we show that China has its own distinctive Med-Arb system, where it has developed from ancient Confucian philosophy. Japan also emphasizes the role of an arbitrator who settles the disputes in the course of arbitration. The domestic arbitration rules of the Korean Commercial Arbitration Board (KCAB) have a similar process in that arbitration contains an element of conciliation. With regard to the universal characteristics of Med-Arb, it is necessary to analyze the pros and cons of Med-Arb at a deeper level in the future. One caveat is that it is necessary to handle the issues of the neutrality of the mediator-arbitrator.

• The korean journal of orthodontics
• /
• v.44 no.1
• /
• pp.5-12
• /
• 2014

The committee of admitted doctors developed a questionnaire regarding medical dispute and distributed it to 1,600 members of Korean Academy of Orthodontics. The questionnaire consisted of three categories and 56 items covering basic information about the doctors and patients who had experienced medical disputes, the cause and workaround of medical accidents, and methods for taking precautions. The present survey showed a similar proportion of responders who had experienced a medical accident compared to the study in 1997. The primary reason for medical disputes was dissatisfaction with appearance. Many doctors felt that they would likely experience a medical dispute at some point. Most disputes were settled by doctors themselves, usually for an amount of less than 5 million Korean won. For some doctors, medical accidents lead to ongoing psychological problems. Responders felt that continuing education for medical dispute is very necessary. These results reveal a need for the association of orthodontists to lead advancements in education and countermeasures for preventing and managing medical accidents and disputes.

• Journal of Arbitration Studies
• /
• v.13 no.2
• /
• pp.263-290
• /
• 2004

Dispute plays a key role in maintaining the desirable performance of trade transaction. Although avoidance of disputes is always a priority, it is also important to prepare methods of dispute resolution which are efficient and economical. So, understanding of chinese dispute resolution system is a necessary requirement for successful business operation with chinese companies. This article analyzed and compared with the ways of trade disputes settlement system such as negotiation, mediation, arbitration and litigation in China in order to help the Korean traders who enter into business with the chinese companies to settle their disputes efficiently. This article suggests that two methods of negotiation and mediation are more likely to be effective than arbitration and litigation to resolve disputes with chinese companies because of problems of enforcement of arbitral award and the uncertainty of China's legal system.

• Journal of Medicine and Life Science
• /
• v.16 no.1
• /
• pp.10-12
• /
• 2019

Medical disputes can always arise in the medical environment. We aimed to decrease the medical disputes by analysis for causes and results of cases of medical disputes. The cases of medical dispute were found on the homepage of the Supreme Court based on the judgment data which was searched using the keyword 'Jeju, Medical accident' and it was described as the area related to each medical accident. There was total of 13 cases related medical disputes in Jeju. The final states of the patients were different in each causes, but death accounted for 10 cases (76.92%), comatose state for one and disability for two respectively. The cases were 2 related with an injury from a fall. The major cause was violation of medical care obligation. Physician have to learn recent medical knowledge, have competence, and explain the detailed procedures and complications before the procedures dependent on patient autonomy.