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2019 Reform of Japan Commercial Arbitration Association (JCAA) Arbitration Rules (2019년 일본상사중재협회(JCAA) 중재제도의 개혁동향)

  • Kim, Young-Ju
    • Journal of Arbitration Studies
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    • v.29 no.2
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    • pp.133-159
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    • 2019
  • This paper reviews 2019 new arbitration rules of Japan Commercial Arbitration Association (JCAA). JCAA has amended its Commercial Arbitration Rules, and its Administrative Rules for UNCITRAL Arbitration. Also, it has introduced a new Interactive Arbitrations Rules. These new rules take effect from 1 January 2019. First, principal amendments of JCAA Commercial Arbitration Rules are such as arbitrator impartiality, tribunal secretaries, no dissenting opinions, expedited proceedings, arbitrator fees, administrative fees. Second, JCAA's new Interactive Arbitration Rules compel communication from the arbitral tribunal to the Parties and introduce a system of fixed compensation for arbitrators. Third, JCAA's Administrative Rules for UNCITRAL Arbitration are designed to provide the minimum essentials to allow the UNCITRAL Rules to be overseen by an institution. The only significant updates focus on arbitrator remuneration. This paper presents the intent and some implications of JACC's 2019 new rules for Korean Commercial Arbitration Board (KCAB) arbitration rules. Also, it seeks to provide a meaningful discussion and improvement on the facilitating of arbitration system in Korea.

MFN Restrictions in Investment Agreements for the Prevention of ISDS Forum Shopping (ISDS 포럼쇼핑 방지를 위한 투자협정상 MFN 배제조항)

  • Hur, Nany
    • Journal of Arbitration Studies
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    • v.28 no.4
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    • pp.173-191
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    • 2018
  • MFN provisions in investment agreements have been a tool for equitable treatment between foreign investors with different nationalities. This non discriminatory principle has been pursued by the host states for further investment promotion. However, it may be abused to bring the situation of so called "ISDS forum shopping" which might harm the stability and predictability of investment agreements by unexpectedly extending the scope of obligations. While some investment arbitral tribunals have interpreted the scope of MFN provision very broadly to allow the ISDS forum shopping, both procedural and substantive provisions have been invoked. To prevent any chaos of unclear boundary of MFN provision, some explicit MFN restrictions which would limit the scope of MFN provision are needed. Indeed, some investment agreements have included these MFN restrictions. Specifically, MFN restrictions deal with both procedural or substantive provisions to prevent ISDS forum shopping. According to the lessons from the recent examples of MFN restrictions, there must be a careful consideration on the benefits and costs of having a certain type of MFN restriction as the parties can be the host state and the home state of their investors at the same time.

A Study on the Task and Role of Arbitration in Korea by Discussions on the Allowance of Insurer to Invite Overseas Patients (우리나라 보험사 해외환자 유치 허용 논의에 따른 중재의 역할과 과제)

  • Kim, Kee-Hong;Byeon, Seung-Hyeok
    • Journal of Arbitration Studies
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    • v.29 no.2
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    • pp.225-237
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    • 2019
  • Recently, it has been argued that it is necessary to attract foreign patients outside domestic insurers and to allow foreign doctors to treat in domestic hospitals in order to develop the insurance industry and revitalize the medical industry. Currently, large medical institutions in Korea are attracting foreign patients in connection with foreign insurance companies. It is desirable to increase the number of overseas patients who want excellent medical services in Korea, and to provide opportunities for domestic insurance companies to attract overseas patients by expanding job creation through a revitalization of the medical industry. Therefore, this study suggests the development direction for insurers who aim to attract foreign patients through the side effects of attracting foreign patients in accordance with the Financial Services Commission's plan to strengthen the competitiveness of the financial industry. In addition, this study intends to contribute to the strengthening of the competitiveness of attracting foreign patients, through domestic insurance business, to the insurance direct payment market for overseas patients using domestic medical institutions that are concentrated in foreign insurance companies and in the blind spot of domestic law application.

A Critical Look at the Prague Rules: Rules on the Efficient Conduct of Proceedings in International Arbitration

  • Jun, Jung Won
    • Journal of Arbitration Studies
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    • v.29 no.3
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    • pp.53-74
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    • 2019
  • Due to the increasingly popular dissatisfaction regarding the inefficiency of arbitral proceedings, the Rules on the Efficient Conduct of Proceedings in International Arbitration, also known as the Prague Rules, was launched in December 2018, with the purpose of increasing the efficiency of arbitral proceedings by encouraging arbitral tribunals to take a more proactive role in conducting their procedures. In this article, the provisions of the Prague Rules are examined, in light of those of the IBA Rules on the Taking of Evidence in International Arbitration, in order to determine the efficacy of the Prague Rules on enhancing the efficiency in arbitral proceedings. The author concludes that more specific and detailed provisions, with respect to what the Rules means by such a "proactive arbitral tribunal," should have been explicitly included in light of the Rules' repeated emphasis on such. Also, the prospective outlook on the Prague Rules is not entirely clear as the text does not appear to fill in the gaps in other widely utilized arbitration rules or to supplement them in a satisfying way. However, given that only a short amount of time has passed since the launch late last year, only time will reveal how effective the Prague Rules will be in increasing the efficiency of arbitral proceedings, in accordance with its intended effect.

Alternative Dispute Resolution in Genetic Resources and Traditional Knowledge: Settlement at the World Intellectual Property Arbitration and Mediation Center

  • Kwak, Choong Mok
    • Journal of Arbitration Studies
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    • v.29 no.3
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    • pp.75-97
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    • 2019
  • The growing importance of biological resources as sovereign rights to healthcare, energy, and food has sparked international discussions on Genetic Resources (GRs) and Traditional Knowledge (TK). As the bio-industry continues to grow, research and development utilizing patented biological resources are advocated. Currently, World Intellectual Property Organization (WIPO) is actively discussing GRs and TK, and an effective response to national interest has been sought. Of late, there have been growing disputes over issues like ownership, control, and access and benefit-sharing between indigenous peoples and users of GRs and TK resources. Resolution of disputes concerning GRs and TK are thus becoming critical not only to stakeholders such as the indigenous peoples and corporations, but also to third-party users. Due to the weakness of the current IP and court system however, such disputes are not addressed adequately. This paper will address the use of Alternative Dispute Resolution (ADR), which is an out-of-court dispute resolution system, on conflicting issues regarding GRs and TK. It will consider the WIPO as a forum for ADR and ADR for GRs and TK disputes and it will seek both parties in the dispute to benefit from the use of the ADR process.

Study on the Need for Distinction Between "Award by Consent" and "Med-Arb" (중재절차 중 '화해의 유도'와 '조정-중재'제도의 구분 필요성에 대한 연구)

  • Do, Hyejeong
    • Journal of Arbitration Studies
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    • v.30 no.4
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    • pp.51-70
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    • 2020
  • The Mediation-Arbitration hybrid is becoming more popular since it makes an amicable relationship and thorough statement possible. The Mediation-Arbitration hybrid has been used to take advantage of both dispute resolution methods. In a Med-Arb process, negotiating a resolution to disputes is attempted with a mediator's help. If the mediation ends in an impasse or issues remain unresolved, parties can move on to arbitration. Med-Arb can also be cost-effective when disputants hire one person to serve as mediator and arbitrator (Med-Arb-Pure). However, it can disturb the fairness and neutrality of arbitrators, and awards can be annulled. Indeed, "Award by Consent" is different from the "Med-Arb-Pure" process. Arbitrators easily confuse them. Only the parties settle on the arbitral proceedings' course, and the arbitrator can help them (award by consent). The role and skill of a mediator are different from an arbitrator's. Disputants have the right to use a mediator who specializes in mediation. Moreover, mediation communication confidentiality is the essential value of mediation, and this should be protected. Therefore, in the process of "Med-Arb," separation between mediating and arbitrating is a better choice to specialize in each expertise. In this process, "Med-Arb" can be an affordable, expeditious, proper, and effective method of resolving international commercial disputes and continuing ADR prime time.

A Study on the Dispute Cases and Improvement Related to the FTA Cumulation: A Focus on the KOREA-ASEAN FTA (FTA 원산지누적 분쟁사례와 개선방안 연구: 한-아세안 FTA를 중심으로)

  • Ko, Jai-Kil
    • Journal of Arbitration Studies
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    • v.30 no.4
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    • pp.95-119
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    • 2020
  • Securing a stable supply chain is becoming a significant concern among countries as the global uncertainty rises with the expansion of global protectionism and the result of what the COVID-19 pandemic has brought around the world. This study has investigated dispute cases between customs authority and trade corporations based on the KOREA-ASEAN FTA and suggested the following implications and improvements: Firstly, the extent (varieties) of the proof document on cumulation and its form should be stipulated and provided through consultation between customs from each contracting party. Secondly, it ought to be prescribed as an obligation so that producers located in the third country can cooperate in providing documents for certification of origin. The duty to provide such documentary evidence should also be specified when making EX-IM contracts. Lastly, origin verification provisions regarding cases to which cumulation is applied have to be complemented so that the verification period's extension can be applied and approved. One can expect that the abovementioned responses on cumulation will enhance the availability of KOREA-ASEAN FTA.

The Problems and Implications of the Dispute Settlement System in the WTO Regime With a Particular Reference to the Appellate Body - (WTO체제 분쟁해결제도의 문제점과 시사점 -상소기구를 중심으로-)

  • Hong, Sung-Kyu
    • Journal of Arbitration Studies
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    • v.30 no.4
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    • pp.3-29
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    • 2020
  • The WTO's dispute settlement system has played a significant role in settling trade disputes between countries, and its function and role have been expanded by handling about 596 disputes since its establishment in 1995. This shows that the WTO's dispute settlement system is gaining enormous trust among member countries that it recognizes as a fair, effective, and efficient system for resolving trade disputes. The U.S. remains uncooperative in the WTO dispute settlement system, citing disregard for the 90-day deadline for appeals, continued service by persons who are no longer A.B. members, issuing advisory opinions on issues not necessary to resolve a dispute, A.B. review of facts, and review of a member's domestic law de novo. The A.B. claims its reports are entitled to be treated as a precedent. These problems should be gradually improved through various discussions and agreements by establishing a multilateral forum for resolving disputes and gradually ending the problems through reform of the DSU.

A Study of the Arbitration Procedures for Disputes Regarding Automobiles (자동차분쟁에 있어서 중재절차에 관한 고찰)

  • Kim, Yong Kil
    • Journal of Arbitration Studies
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    • v.30 no.4
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    • pp.71-94
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    • 2020
  • When a dispute or conflict occurs, standard methods for resolving them include resolution by trial or resolutions outside of courts. An alternative dispute resolution method called ADR that aims at remedying disputes instead of filing lawsuits is used commonly throughout the world, including the US and China. ADR, which is a remedy method outside of courts, includes negotiation, arbitration, or mediation between the concerned parties, and the arbitration system has several advantages. The Lemon Law is a consumer protection law of the United States that was enacted in 1975. This law prescribes that when specified quality standards are not met repeatedly due to defects in vehicles or electronic products, the manufacturer must provide exchanges or refunds to consumers. Korea also enacted a newly revised automobile management act, the Korea "Lemon Law," on January 1, 2019, which allows consumers to receive exchanges or refunds from the manufacturer if the same malfunction repeatedly occurs after purchasing a new automobile. There have recently been many cases of large fires occurring while driving import vehicles, causing huge public rage; therefore, interest is being focused on the revised automobile management act. Part 5-2 of the automobile management act was newly added to implement automobile exchange or refund arbitration systems. It is desirable to utilize the arbitration system to smoothly resolve automobile-related disputes that have recently increased significantly, and it is thus being used frequently for practical purposes.

Certain Uses of the Assignment of Monetary Rights arising from International Sales Contracts and Legal Relations between Parties under UNIDROIT Principles (UNIDROIT 원칙상 채권양도에 의한 국제매매 대금채권의 활용과 그에 관한 법률관계)

  • Hur, Hai-Kwan
    • Journal of Arbitration Studies
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    • v.32 no.2
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    • pp.31-53
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    • 2022
  • This paper examines various legal issues related to the assignment of monetary rights under UNIDROIT Principles. To this end, this paper examines the concept and the effects of the assignment of rights, the related legal structure and notice to the obligor, and some uses in practice (II). Then, as a matter of law in the context of the assignment of monetary rights under UNIDROIT Principles, this paper examines what may happen to the legal relationship between the parties and what practical considerations need to be taken by them when the obligor has legal defenses against the assignor, when successive assignments are made by the assignor, when the obligor exercises against the assignee its right of set-off before receiving the notice of assignment, when the assigned right does not exist at the time of the assignment, when any payment is received from the obligor before the notice of assignment is given, and finally when the obligor becomes insolvent or refuses to pay.