• Journal of Arbitration Studies
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• v.30 no.1
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• pp.139-160
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• 2020

Shalish is a key ingredient of the dispute resolution culture in Bangladesh since a formal court system has been known to show inefficiencies, such as overburdened cases and litigation process delays. This paper investigates the main function of Shalish and examines the evolution of Shalish in the perspectives of its three variants: a community-based Shalish, a village court, and an NGO variant of Shalish in modern extensions. It was found that traditional Shalish may play a role in the dispute resolution system in modern villages. A village court is a kind of hybrid dispute resolution system combining an informal dispute resolution with a formal court system. A village court is administered by the Union Parishad without intervention from the central government. Both the Shalish and village court have the weakness of unfair verdict exercised by local elders within a community. For this reason, an NGO variant Shalish is to reflect voices of women and other lower people in the community. To this study's interpretation, a village court is a new kind of Shalish combined with a formal court system while an NGO variant Shalish is also a "new" Shalish combined with a mediation system. In this respect, core elements of Shalish tradition have not been changed although various forms of new dispute resolution systems have emerged in the modern world.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.3-37
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• 2020

The Korean Arbitration Act (KAA) enacted in 1966 was entirely revised in 1999, adopting the 1985 UNCITRAL Model Law on International Commercial Arbitration. Korea is trying to be an international arbitration hub in the region, taking advantage of its geographical location in Asia and its highly open economy. KAA was revised in 2016 again in order to reflect the criticisms against the previous KAA, changes in the arbitration environment, and the 2006 amendment to the UNCITRAL Model Law. The basic direction of the revision was to maintain the UNCITRAL Model Law system and to deal with the national arbitration and international arbitration in the same framework. The scope of revision covers all fields of arbitration, including arbitration agreements, arbitrators, arbitral proceedings, interim measures of the arbitral tribunals, recognition/enforcement of arbitral awards, and their annulment. This paper aims to introduce the important issues of the 2016 revision of KAA, to offer important information discussed in the process of revision, and thus to help those concerned in the interpretation and implementation of KAA. The 2016 revision of KAA is expected to help greatly in promoting not only the national arbitration, but also the international arbitration in Korea.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.161-184
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• 2020

In the process of the annulment of arbitral awards, the Swiss Federal Supreme Court contributes to keeping Switzerland as a venue for international arbitration. Challenges to an award rendered in Switzerland are handled by the Swiss Supreme Court only. Furthermore, the Swiss law provides extremely limited grounds (PILA 190) for the potential challenge of the award and those are different from what model law countries have. For example, violations of the parties' agreed procedural arrangements will not be grounds for the annulment of an award in Swiss. In arbitration, the intervention of a national court is necessary to protect justice but at the same time, it can impede the process of arbitration, even making it useless. Limited intervention of the Swiss Supreme Court protects the efficiency, autonomy, and justice of international arbitration. International Arbitration has to be simple and fast to solve complex international commercial problems and to promote trade. Therefore, the process and technique to be applied on an Arbitration-friendly Swiss court should be considered.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.199-215
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• 2020

Compared to Korea's recently expanding art distribution market, the difficulty of securing the authenticity of art is hindering the healthy development and growth of the market. In this regard, the current situation of the emotional system in the UK and France's art distribution process are examined as excellent cases in foreign countries. In the UK, there is a full autonomous appraisal system by art experts without state intervention. In France, the judiciary and the administration of art have an appraisal system for art works, so the appraisal work has reliability and objectivity. Through the above system, this study suggests measures to strengthen transparency in art trade and to break unfair practices in order to secure the authenticity of the domestic art distribution market. In addition, this study proposes the establishment of a professional appraisal system and the improvement of administrative law regulations to explore the possibility of ensuring fairness through mediation through the example of an international arbitration body.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.185-226
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• 2015

As in some developing countries and more recently some developed countries worldwide and in the Asian region, Australia has faced significant internal opposition and public debate especially over treaty-based investor-state dispute settlement (ISDS). As outlined in Part II(1), concerns have re-emerged and escalated since the first-ever claim was brought against Australia regarding its tobacco plain packaging legislation, in 2011 by Philip Morris Asia under an old BIT with Hong Kong. However, Australia signed bilateral FTAs with Korea in 2014 and with China in 2015, including ISDS protections, prompting several sets of parliamentary inquiries (Part II(2)). Australia's close trading partner, New Zealand, had already concluded an FTA with China in 2008 that included more expansive ISDS-backed investor protections. In 2015, the New Zealand Parliament has been debating ratification of its own FTA with Korea, with ISDS also now attracting growing scrutiny, as elaborated in Part III below. In both bilateral FTA negotiations, the present Korean government seems to have reverted to a strong preference for concluding investment agreements with extensive ISDS protections, despite public and parliamentary debate around 2011 in the context of ratifying its FTA with the United States. As mentioned briefly in the concluding Part IV, Korea's stance has significant implications for the future trajectory of treaty-based ISDS - and indeed international arbitration more generally - in the Asia-Pacific region, and perhaps even globally.

• Journal of Arbitration Studies
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• v.25 no.1
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• pp.65-86
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• 2015

Under current international investment law clear criteria to determine standards of indirect expropriation are absent. Arbitral tribunals determine on a case-by-case whether an indirect expropriation has occurred by conducting a fact-based inquiry. However, three common determination standards can be inferred by analyzing prior arbitration cases. The appropriate analytical framework that can be applied to determine whether a state's measure constitutes an indirect expropriation is as follows. i) the degree of economic invasion of the state's action into the foreign investor's property rights and durability of the period, ii) interference with the foreign investor's distinct and reasonable investment-backed expectations, and iii) the nature, purpose and character of the state's measure. Therefore, it is necessary to fully acknowledge and to utilize strategically this determination standard. However, derived standards cannot be applied to all disputes en masse. So, it is desirable to exclude ambiguity and to clearly define the determination standard of indirect expropriation in investment agreements, since arbitral tribunals can apply different determination standards on a case-by-case basis. And, based on the discussions until now, more developed standards and direction in response to demand should be established through consistent analysis and review of precedents related to indirect expropriation. Lastly, This study is expected to be a useful guideline to prepare a necessary countermeasure to prevent dispute related to indirect expropriation beforehand or in case of dispute occurrence.

• Journal of Arbitration Studies
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• v.25 no.1
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• pp.47-64
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• 2015

Pursuant to Article 109(1) of the Attorney-at-Law Act of Korea, a person, not an attorney-at-law, who receives or promises to receive money, articles, entertainment or other benefits or who gives or promises to give those things to a third party, in compensation for providing or mediating legal services, such as examination, representation, arbitration(emphasis added), settlement, solicitation, legal consultation, making of legal documents, etc. shall be punished by imprisonment with prison labor for not more than 7 years or by a fine not exceeding KRW 50 million or may be punished by both and there is no specific provision on qualification of arbitrator except on nationality of an arbitrator in the Arbitration Act of Korea. Then, the question arises, can any non-lawyer arbitrator who receives arbitrator's fees be punished in accordance with the Attorney-at-Law Act in Korea? To search for an answer for this matter, this paper examines the Arbitration Act or the Civil Procedure Code of 33 major countries in the world and explains a research on the participation ratio of non-lawyer arbitrators in all 360 arbitration cases registered in 2012 at the Korean Commercial Arbitration Board (KCAB).

• Journal of Arbitration Studies
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• v.25 no.1
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• pp.25-46
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• 2015

Cross-border consumer disputes are on the increase as cross-border trade between consumers and businesses continues to grow. Cross-border consumer disputes are difficult to solve, because there are different languages, laws and institutions between the parties. These consumer disputes can be solved more easily by Online Dispute Resolution (ODR) in comparison with utilizing court processes. ODR is a branch of dispute resolution which uses technology to facilitate the resolution of disputes between parties. It primarily involves negotiation, mediation or arbitration, or a combination of all three. In this respect it is often seen as being the online equivalent of alternative dispute resolution (ADR). On 18 June 2013, the new legislation on Alternative Dispute Resolution and Online Dispute Resolution has been published - the "Directive on Consumer ADR and Regulation on Consumer ODR". The new legislation on ADR and ODR will allow consumers and traders to solve their disputes without going to court, in a quick, low-cost and simple way. The United Nations working group for online dispute resolution of cross-border electronic commerce transactions (UNCITRAL Working Group III) has been underway since 2010 to continue its work on procedural rules for ODR.

• Journal of Arbitration Studies
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• v.25 no.1
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• pp.3-23
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• 2015

As the Internet rapidly emerges as a speedy and cost-effective way of purchasing goods from overseas websites, the number of disputes arising out of overseas direct purchases also increases. In such situations, a disgruntled consumer might be left without an effective remedy. Providing an alternative approach to redress such grievances might assist in resolving such disputes and in increasing consumer confidence in e-commerce. Online Dispute Resolution (ODR) will allow consumers to solve their disputes without going to court, in a quick, low-cost, and simple way. It also helps to eliminate complex jurisdictional and choice-of-law problems. On the other hand, it has many problems such as having inadequate confidentiality and security, not being able to meet the "writing" requirement for arbitration of disputes, having difficulty in enforcing online arbitration agreements, having difficulties in enforcing online decisions and so on. This article investigates relationship online disputes and ODR and suggests ways that ODR can work best in resolving disputes arising out of overseas direct purchases. To expand the ODR system in online disputes, it is very important for domestic consumers to recognize the concept and usefulness of the Alternative Dispute Resolution (ADR) and ODR systems. The Korean government must also help consumers recognize the ADR mechanisms of dispute resolution by public campaign advertisement of ADR systems. Further education of dispute resolution in higher educational institutions is also required as well as assisting the KCAB with funds and the establishment of ADR Law.

• Journal of Arbitration Studies
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• v.26 no.2
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• pp.91-114
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• 2016

The purpose of this study is to promote trade between Korea and South American countries. Korea's trade with South America has decreased recently. This study analyzed the effects of arbitration on trade between Korea and South America. To this end, we conducted an analysis of the gravity model of trade between Korea and South America. The gravity model is a research method that is widely used to analyze the pattern of international trade. The dependent variables of the gravity model were trade in Korea and South America. The independent variables were GDP, population, and distance between Korea and South America. In addition, dummy variables were the FTA and whether to join the New York Convention or Washington Convention. Joining either Convention indicated the establishment of an international arbitration system. As a result, an arbitration system appeared to be effective in increasing trade. Depending on the results it shows the importance of utilizing the system of arbitration in South America. So this study analyzed the current status of arbitration in South America. To companies doing business in South America it provided the implications for an arbitration system there. Also it proposed a method for increasing trade for the Korean government and institutions.