• Journal of Arbitration Studies
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• v.15 no.3
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• pp.207-232
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• 2005

This study is for an example of arbitration of a dining out franchise company in Korea and franchise system currently is expanding and developing to international trade. The main reason for that is franchising has some benefits compared to the existing trades. Korean dining-out industry has largely developed for the past 20 years, but there are little world-class company of the industry, because dining-out industry should go for qualitative as well as quantitative growth at the same time. Korean dining-out industry has adopted licensing and joint-venture among growth strategies, but the franchise system among them seems to have taken its place as a representative strategy for management to develop dining-out industry. The history of Korean dining-out franchise industry is very short and it is true that we have no a management philosophy of accompanying growth with franchise due to a short experiences and recognition of top management or managers and short-term strategy for branch expansion. For a brilliant growth of dining-out franchise industry, to settle disputes through arbitration, in case of disputes taking place, is very important, because the franchise industry is a frequent-trading sector, requires expert-level knowledge, favors a closed examination and also needs a fast solution. As the franchise industry has been sharply growing around the world, there is more possibility of disputes, and various and complicated laws of the industry are related to disputes as well, so much more expert-level knowledge is required to solve disputes. Therefore, affiliated headquarters hope a disclosed settlement of their disputes and their any disputes should be fast settled for the benefits of affiliated members.

• The Korean Society of Law and Medicine
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• v.9 no.2
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• pp.383-422
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• 2008

Considering above, It might be efficient that medical disputes would be settled by the intervention, the agreement, and the administrative relief that reflect mediators' opinion, who have rich social experience as well as specialized knowledge. Therefore, KCA needs to strengthen its function of mediation and improve relevant systems to become an effective settlement institution. And although Oriental medicine disputes have mainly given ex post facto explanations so far, administrative efforts such as policy development or legislation should be made for the high quality of Oriental medical services offered because an efficient way saving social or economic costs caused by the dispute would be precautionary measures. The traditional Oriental medicine is featured with the lack of baseline examination, the uncertainty of medical mistakes, the difficulty in clarifying and proving facts, the hardship of injury conformation and causality because of the characteristics of Oriental medicine, and the relative lightness of physical damages. Actually, there has been few legal settlements in Oriental medical disputes since the compensation, itself, compared to the lawsuit cost, is relatively much lower without practical benefits.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.3-46
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• 2004

To realize the spirit of the South-North Joint Declaration of June 15, 2000, the competent authorities of the South and the North of Korea have reached two Agreements to settle commercial disputes as well as to set up an arbitral organization called 'South-North Commercial Arbitration Commission'. The Commission is an institutional organization for settlement of commercial disputes arising from 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 Commission for prompt and effective settlement of south-north commercial disputes. While analyzing the above two Agreements for dispute-settlement mechanism, the author proposes desirable ideas and directions in connection with the Commission as follows: 1. First of all, the Commission should become a central common system for settlement of commercial disputes which meets the demand of capitalistic market economy. 2. The Authorities of south and north Korea should recognize that the availability of prompt, effective and economical means of disputes resolution such as arbitration and conciliation to be made by the Commission would promote the orderly growth and encouragement of south-north trade and investment. 3. The Korean Commercial Arbitration Board(KCAB) should be designated as the Arbitration Commission 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
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• v.8 no.1
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• pp.123-148
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• 1998

Recently many controversies originate for varies reasons, ranging from normal market competition to honest disagreements about rights. Disputes also arise from the clash between institutions and individuals. A free society should provide many systems for resolving controversies. We think of the courts as being primary, but, of course, they are not. In Korea, and in most other parts of the world, disagreements are resolved informally, without the need for judicial intervention. Settlements are worked out privately, usually without lawyers and certainly without judges. Most of judges are finding it difficult to cope with the needs and demands of society. Many businessmen who no longer want to get involved in lawsuits, are looking for alternative methods for resolving their disputes. However, there are actually two systems, litigation and arbitration only, to resolve disputes with binding both parties concerned. Litigation emphasizes on the equity and the justice with allowing three time's judgment for the resonable resolution, and arbitration, which is not subject to appeal, stress on the economic settlement rather than justice. Arbitration process results in a final and binding decisions. Although arbitration is a voluntary procedures that is created by the parties themselves, arbitration differs from mediation and conciliation because of its binding power. Arbitration is today coming into fashion as our primary methods for settling disputes. No company wants to have its funds tied up for long periods. Many parties prefer that the decision be final, rather than facing the prospect of extended appellate litigation. Therefore, government must encourage parties to settle their disputes by arbitration instead of litigation.

• Journal of Arbitration Studies
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• v.14 no.1
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• pp.273-314
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• 2004

There is a belief in the construction industry that the traditional court system may not be an ideal forum to effectively and efficiently resolve construction disputes due to the protracted proceedings and the three tier appeal system resulting in a long delay in the final and conclusive settlement of the dispute, relatively high costs involved, the lack of requisite knowledge and experience in the relevant industry, etc. Hence, they assert that certain alternative dispute resolution ('ADR') methods, such as mediation, conciliation, arbitration or a new system for dispute settlement in the form of any combination thereof should be developed and employed for construction disputes so as to resolve them more promptly and efficiently to the satisfaction of all the disputants concerned. This paper discusses certain merits of such assertions and the need for additional considerations for effective resolution of the construction disputes in light of the complexity of the case, importance of expert witnesses, parties' relationship and non-level playing field of the construction industry and so on. At the same time, however, given the inherent nature of disputes rendering the parties involved in an adversarial position, it would rather be difficult, if not practically impossible, to satisfy all the parties concerned in the dispute. Accordingly, in this study, it is also purported to address the demerits of such assertions by studying the situation from a more balanced perspective, in particular, in relation to the operation of such ADRs. In fact, most of such ADRs as stipulated by special acts, such as the Construction Industry Basic Act of Korea, in the form of mediation or conciliation, have failed to get support from the industry, and as a result, such ADRs are seldom used in practice. Tn contrast, the court system has been greatly improved by implementing a new concentrated review system and establishing several tribunals designed to specialize in the review and resolution of specific types of disputes, including the construction disputes. These improvements of the court system have been warmly received by the industry. Arbitration is another forum for settlement of construction disputes, which has grown and is expected to grow as the most effective ADR with the support from the construction industry. In this regard, the Korean Commercial Arbitration Board ('KCAB') has established a set of internal rules end procedures in operation to efficiently handle construction disputes. Considering the foregoing, this paper addresses the most important elements of the arbitration, i.e., arbitration agreement and arbitral award, primarily focusing on the domestic arbitrations before the KCAB. However, since this parer is prepared for presentation at the construction disputes seminar for the public audience, it is not intended for academic purposes, nor does it delve into any specific acadcmic issues. Likewise, although this paper addresses certain controversial issues by way of introduction, it mainly purports to facilitate the understanding of the general public, including the prospective arbitrators on the KCAB roster without the relevant legal education and background, concerning the importance of the integrity of the arbitration agreement and the arbitral award. In sum, what is purported in this study is simply to note that there are still many outstanding issues with mediation, conciliation and arbitration, as a matter of system, institutional operation or otherwise, for further study and consideration so as to enhance them as effective means for settlement of construction disputes, in replacement of or in conjunction with the court proceeding. For this purpose, it is essential for all the relevant parties, including lawyers, engineers, owners, contractors and social activists aiming to protect consumers' and subcontractors' interests, to conduct joint efforts to study the complicated nature of construction works and to develop effective means for examination and handling of the disputes of a technical nature, including the accumulation of the relevant industrial data. Based on the foregoing, the parties may be in a better position to select the appropriate dispute resolution mechanism, a court proceeding or in its stead, an effective ADR, considering the relevant factors of the subject construction works or the contract structure, such as the bargaining position of the parties, their financial status, confidentiality requirements, technical or commercial complexity of the case at hand, urgency for settlements, etc.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.157-181
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• 2011

The term of defense procurement is used indifferently from defence acquisition. It consists of two sectors : domestic defense procurement and foreign defense procurement. For efficient and transparent defense procurement, Defence Acquisition Program Law in Korea suggests some principles including the purchase of domestically manufactured munitions in the first instance, and the Defense Acquisition Program Administration(DAPA)'s direct procurement of munitions, etc. By reviewing the characteristics, process, current situation and model contracts of defense procurement, it is found that domestic procurement contracts only propose the legal approach instead of arbitration and foreign procurement contracts suggest confusedly both the legal approach and arbitration for amicable disputes settlement. Therefore, it is quite recommended for arbitration organizations such as the Korean Commercial Arbitration Board(KCAB), the Korean Arbitrators Association(KAA), and the Korean Association of Arbitration Studies(KAAS) to foster a variety of strong awareness campaign, education and consulting programs, etc. for the popular use of arbitration clause. It will contribute to settle any disputes and controversies between the parties more speedy, economically and rationally, thereby reducing the costs, time and pains for solving them.

• Journal of Labour Economics
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• v.24 no.2
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• pp.197-225
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• 2001

Bargaining theory with asymmetric information is widely accepted to explain labor disputes. Even though it secures theoretical consistency, it needs to be supplemented to explain disputes and negotiation more accurately. This paper shows that it may be assisted by bargaining theories based on the economics of psychology as well as theories on bargaining practices which are popular in other academic fields. The former suggests the occurrence of asymmetric information is related with the perception of the players of bargaining. The latter does they do not exchange offers as the typical theory of bargaining with asymmetric information assumes. When the latter is applied to explain the labor disputes of the public sector, it explains clearly their features and the differences from those of the private sector.

• The Journal of the Korea Contents Association
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• v.10 no.11
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• pp.294-303
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• 2010

Unexpected results caused by medical service are defined as malpractice, and the doctor must bear the responsibilities following the medical treatment. Malpractice disputes are disputes between patients, who are seen as the only victim in this way, and medical personnel who do not admit to the charges. Unfortunately, in reality, an official approach to mutual understanding and communication in the instance of such disputes does not exit. Based on this background, this study was attempted to prevent similar forms of medical disputes from occurrence and provide fundamental data to prepare by analyzing the medical disputes precedent. Results of the study are as follows: First, For type of medical institution, hospitals accounted for the most part as 62.9%. Second, Among total medical disputes, the cases surgery accounted for 27.8%, violation of duty care accounted for 20.6% and that of medical treatments 11.3%. Third, For a mean agreed amount by medical department, it was the highest in obstetrics & gynecology as 38,384,000 won. In conclusion, the most desirable method of dispute resolution is to prevent a cause of dispute to the root.

• The Journal of Fisheries Business Administration
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• v.34 no.1
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• pp.69-85
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• 2003

The primary objective of this thesis is to study, case by case, the international disputes for fishing rights between fishing nations and costal states never imagined till the introduction of the UN Convention on the Law of the Sea adopted in 1982 and came into effect in November 16, 1994, which governs the high seas and EEZ in a new manner. Such a study is to provide help in the understanding on this new marine system and how to deal with. This is addressed by the perspectives of disputes (a) in the high seas between fishing nations having traditionally enjoyed the principle of the freedom of the high seas and costal states, (b) in the EEZ between fishing nations and costal states possessing the exclusive jurisdiction over living marine resources and sovereign rights for determining allowable catch and the surplus in its EEZ. The article can be divided into four main parts. First, both the general principles of the settlement of international disputes, and the nature and procedures described in the UNCLOS are introduced. Second, it gives cases of tuna long-liner, North Pacific trawler and squid jigger occurred in the coastal states EEZ, and analyses the problem in both terms of its background and final judgment. It further describes the possible issues in case it depends on the International Tribunal for the Law of the Sea for its settlement. Third, closely tied to above, important points such as the right of hot pursuit, prompt release of vessel and crew, and the limits of cooperation with costal states inspector on board fishing vessels are considered mostly based on the UNCLOS, Bilateral Agreement and UNIA. Finally, the article concludes as follows ; The need for broad analyses on the nature of international suits and legal system for the settlement, to win the case before the International Tribunal for the Law of the Sea or coastal states court, is really acknowledged. However, considering the lack of previous studies about it, it is preferably recommended that governmental efforts for making legal standards to cover the judicial costs, for helping industry out of becoming bankrupt.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.67-85
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• 2010

On-line ADR is to use means of settling disputes online to settle disputes happened on-line or off-line. It gave important opportunity for engaging in a commercial transaction to small group or individual. If it uses judiciary proceeding, it will cost too much, complicate and take considerable time. So, because of these reasons, OECD even encourage on-line ADR as a mean for relieving consumer's damage actively on e-commerce. Korea is also trying to introduce on-line ADR partially or completely in Korea Consumer Agency, The National IT Industry Promotion Agency, The Korean Commercial Arbitration Board. However, Korea's on-line ADR is more insufficient than advanced country's. Nevertheless, because on-line needs to introduce, this study suggests the problem and plan centering the type and the present condition of on-line ADR.