• 한국중재학회지:중재연구
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• 제32권4호
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• pp.33-51
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• 2022

According to the CISG, there are no special regulations for a reasonable period of time among the obligations to notify the contractual suitability of the goods. As a result, many disputes arise in 'notification within a reasonable period' despite being the most important treaty in practice in defining the obligation to notify nonconformities according to the suitability of goods for each case. Regarding the interpretation of Article 39 of the CISG, various judgments and arbitration decisions are being made in each country for a reasonable period to notify that the goods are not suitable for the contract.There are criticisms that these various views are too harsh on the buyer in the buyer's obligation to notify.It is important to create a unified principle because courts or arbitration agencies of the Contracting States of this Convention interpret in various ways the reasonable period of violation of the contract of goods stipulated in the Convention. Since most of the international commodity trading transactions around the world are regulated by the CISG, it is necessary to analyze and interpret cases in which this Convention is applied in court or arbitral tribunal of each country to derive a unified principle.

• 한국중재학회지:중재연구
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• 제32권4호
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• pp.103-141
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• 2022

Traditionally, schedule analysis in Korea has been used, mainly through the Critical Path Method, to evaluate the claim for extension of time and/or the amount of liquidated damages for delay. Critical path method, however, cannot identify the delay event and its impact occurred in non-critical path especially in multi facility projects. In multi facility projects that comprise several independent but related facilities or structures, each facility has its own facility critical path the duration of which will be impacted by facility specific critical delays. Thus, only through the non-critical delay analysis along with the critical delay analysis damages not attributable to contractors may be remedied in full. Because all the records and pictures can reveal what has actually happened in post contract review, only the retrospective analysis rather than the prospective analysis based on the assumptions can establish the cause and allocate the each parties' responsibilities appropriately.

• 한국중재학회지:중재연구
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• 제33권1호
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• pp.23-49
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• 2023

An ICSID award on Lone Star case has been rendered finally on August 31st, 2022 after almost ten years since the Lone Star Funds submitted the request for arbitration against the Republic of Korea in 2012. The Lone Star case is the first investor-state dispute settlement(ISDS) case brought against Korea, and this case, also known as "eat and run" case, has given rise to heated debates for years. Moreover, as the ICSID tribunal has ordered Korea to pay the Lone Star Funds the sum of USD 216.5 million plus interest in the award, this case has become once again the subject of controversy. Any arguments and evidence submitted by the parties in dispute have not been disclosed until recently, however, as the memorials and the award are now open to the public, it has become possible to realize the assertions of each party and the decisions of the tribunal in detail. Therefore, this paper aims at analyzing the main issues of the Lone Star case with a focus on the ICSID award. By examining the substantive and procedural issues of the case one after the other, it might be able to understand the whole picture of the case and prepare for the remaining procedures of this case and other upcoming cases as well.

• 한국중재학회지:중재연구
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• 제33권2호
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• pp.23-52
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• 2023

In this thesis, the domestic and foreign legislative background and legislative process of the Serious Accident Punishment Act were reviewed, and the Serious Accident Punishment Act in Korea was reviewed. In 2022, more safety accidents occurred in the construction industry than in other fields, and in particular, the most deaths occurred in the 'fall' type. In April 2023, regarding two criminal first-instance trial cases, the courts all sentenced guilty, and in one case, the representative of the company(CEO) was sentenced to imprisonment and was arrested. In response, the management side expresses the opinion that the punishment is excessive and there is a concern that corporate management will shrink, while the workers side(Union) argues that the responsibility of the business operator or manager should be strengthened by heavier punishment. As a countermeasure to overcome rationally, we present a plan in terms of legislation and resolution process. In other words, we present a review of the amendment to the Serious Accident Punishment Act and the Court Organization Act. In addition, guidelines for the a safety and health system must be implemented, and if an accident occurs, it must be dealt with reasonably. As a result, safety accidents in the construction industry should drastically decrease and safety culture should be properly established.

• 한국중재학회지:중재연구
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• 제33권2호
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• pp.109-137
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• 2023

This paper reviews legal framework, characteristics and main contents of the 'Optional Rules for the Arbitration of Disputes Relating to Outer Space Activity' enacted by the Permanent Court of Arbitration (PCA) in 2011. Space activities, which began in the 1950s, are undergoing significant changes according to the international characteristics and development of science and technology. New Space and the space business will be the key factors driving these changes. However, the diversity of disputes caused by New Space space activities and the characteristics of each type of dispute must be considered together. This is because the space business can be maintained and developed by securing the effectiveness of dispute resolution. This paper identifies that the PCA Space Dispute Arbitration Rules have important legislative and policy significance in this respect. Specifically, in this paper, the international space law system, the draft convention of the International Law Association, and the PCA arbitration rules were introduced in an overview of the international dispute settlement system related to space activities. Afterwards, it examines that the systematic structure and some major contents of the PCA Space Dispute Arbitration Rules in detail. Based on this, the paper suggests some points of application of the PCA Arbitration Rules and the legislative policy implications.

• 한국중재학회지:중재연구
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• 제31권4호
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• pp.119-136
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• 2021

Due to the restriction of movement caused by the Corona epidemic and the expansion of the "big face" through human distance, the "unmanned system" based on artificial intelligence and the Internet of Things has been widely used in modern life. "Self-driving," one of the transportation systems based on artificial technology, has taken the initiative in the transportation system as the spread of Corona has begun. Self-driving technology eliminates unnecessary contact and saves time and manpower, which can significantly impact current and future transportation. Accidents may occur, however, due to the performance of self-driving technology during transportation albeit the U.S. allows ordinary people to drive automatically through experimental operations, and the product liability law will resolve the dispute. Self-driving has become popular in the U.S. after the experimental stage, and in the event of a self-driving accident, product liability should be applied to protect drivers from complicated self-driving disputes. The purpose of this paper is to investigate whether disputes caused by defects in ordinary cars can be resolved through arbitration through U.S. precedents and to investigate whether disputes caused by defects in autonomous cars can be arbitrated.

• 한국중재학회지:중재연구
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• 제31권4호
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• pp.137-160
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• 2021

The customized cosmetics preparation management qualification system was implemented in March 2020, and it served to create jobs by developing professionals and vitalizing the cosmetics business. However, various problems such as high examination fees, suitability of questions, and utilization in industries are emerging. This paper attempts to prevent disputes that the system can cause and suggest ways to improve it by researching customized cosmetics, the industry status, and comparing foreign cosmetics laws. There is a kind of opinion that laws should be eased for this industry and the other opinion that expertise is necessary in this field because of safety. The system now has adverse effects due to a failure to adjust the difficulty of the exam. Cosmetics are not prescription-based, so they are routinely used. However, some toxic ingredients can cause side effects if they do not conform with certain standards. Also, it is difficult for a case to lead to lawsuits because most consumer damages related to cosmetics are individual. In addition, as e-commerce develops, there is a growing possibility of seeing more consumer damages. If safety and distribution issues, which experts are concerned about, escalate, the private dispute settlement system (among the ADR systems) should be activated as a resolution method.

• 한국중재학회지:중재연구
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• 제31권4호
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• pp.3-27
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• 2021

Recent Discussions on Third-Party Funding (TPF) in the forums of UNCITRAL, ICSID, and ICC are making different levels of progress towards finalizing the rules. However, they also have similarities in dealing with legal issues related to TPF, such as definitions, disclosure, allocation of costs, and security for costs. International treaty tribunals have dealt with TPF issues, too. When it comes to the standing of funded claimants, the tribunal in Ambiente v. Argentina did not accept the argument that claimants were controlled by the TPF provider. Concerning the scope of the disclosure, the tribunal in Tennant v. Canada ordered the disclosure of the TPF arrangement. As for the allocation of costs, the tribunal in Kardassopoulos v. Georgia noted that there is no reason why a TPF agreement should be treated differently than an insurance contract. Regarding the security for costs, the tribunal in South American Silver v. Bolivia considered the mere existence of a third-party funder as not an exclusive factor to determine costs in the earlier stage of the proceedings. Lastly, relating to TPF as a ground for annulment, the tribunal in Teinver v. Argentina declined the respondent's argument that the TPF agreement was the vehicle of fraud.

• 한국중재학회지:중재연구
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• 제33권3호
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• pp.147-175
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• 2023

The emergence of the metaverse, a complex three-dimensional virtual environment, has led to significant changes in the intellectual property (IP) landscape. This paper examines the challenges and legal intricacies of IP within the virtual realm, focusing on the unprecedented nature of these disputes and on the inadequacies of traditional jurisdiction methods. Drawing from international frameworks, including the International Law Association's Guidelines and WIPO's guides, the study critically explores arbitration as an alternate approach to metaverse IP disputes, analyzing its complexities and applicability. The paper further delves into challenges arising from diverse protection laws that pertain to the global nature of the metaverse, including the nuances of various digital assets like NFTs. By assessing jurisdictional difficulties, the paper addresses the adoption of decentralized justice platforms, and examines the role of Alternative Dispute Resolution (ADR) methods, this paper presents a comprehensive view of the evolving virtual legal field. It suggests that while innovative methods are emerging, traditional arbitration will likely remain the preferred choice for complex disputes, offering a balance of speed, cost-effectiveness, and legal robustness within the virtual world.

• 한국중재학회지:중재연구
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• 제33권4호
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• pp.3-35
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• 2023

The Korean government has enacted the Arbitration Industry Promotion Act, which aims to foster the arbitration system as an industry, strengthen national competitiveness, and systematically provide government support so that the arbitration industry can become a future growth engine, and has been in effect since June 28, 2017. In accordance with Article 3 of the Arbitration Industry Promotion Act, the Minister of Justice must establish and implement the Basic Plan for the Promotion of the arbitration industry every five years to promote the arbitration industry. Accordingly, the Ministry of Justice established the "Basic Plan for the Promotion of the Arbitration Industry" (2019-2023) at the end of 2018, which has been in effect since January 1, 2019. This study first reviews and evaluates the domestic arbitration sector performance of the first basic plan, then reviews and evaluates the international arbitration sector performance of the first basic plan, and finally suggests what tasks to focus on when establishing the second basic plan for Promotion of Arbitration Industry.