• 한국중재학회지:중재연구
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• 제25권4호
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• pp.77-95
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• 2015

CISG provides a uniform framework for contracts of sale of goods between parties whose places of business are in different States. In 2004 South Korea became the 63th State around world to adopt CISG. Starting next year CISG goes into effect as the law that governs the contracts for international sale of goods, in respect of which CISG displaces the existing domestic civil and commercial codes of Korea. By its provision Article 1(a), CISG applies directly between Contracting States without reference to private international law. As South Korea's biggest trade partners including China, the U.S. and Japan are also parties to CISG, the number of such direct applications continuously increases. Now it is estimated, though roughly, that CISG governs about two-thirds of Korea's import and export trade of goods. The private survey of the author shows that up to now in South Korea there are 39 court cases decided by the first instance courts, 29 cases by the appellate court and six cases by the Supreme Court of South Korea. In nearly all these cases, CISG applied directly. Furthermore, currently CISG is, in several respects, influencing upon the revision of Korean civil code which is designed to modernize it: The revised draft published in 2013 adopts the rules on the revocation of offers provided in articles 15 and 16, the rule on the termination of offers provided in article 17 and the rule on the time that an acceptance takes its effect provided in article 18 of CISG. More importantly, in accordance with the rules taken by CISG, the revision draft no longer requires the existence of fault or negligence on behalf of the breaching party in order for the aggrieved party to void the contract, and the revised draft denies the right of avoidance for trivial, not fundamental, breaches of contract.

• 한국중재학회지:중재연구
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• 제25권4호
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• pp.51-75
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• 2015

Administrative ADR to solve new problems has the characteristics of a new project, hence ADR is established and operated with a lack of human and material resources in the process of introducing administrative ADR. Therefore, it is preferred to resolve conflicts by less costly counseling and mutual agreement before mediation. When we try to settle the disputes through administrative ADR at the stage before mediation, it causes problems for the neutrality and impartiality of the dispute settlement procedures. In this case administrative ADR systems should introduce devices that ensure the impartiality of the process. In some issues becoming social problems, relevant administrative agencies are inclined to establish ADR systems. If ADR systems become available, a person who may use ADR services may have some trouble grasping ADR institutions because he/she can hardly distinguish their business affairs. By subdividing administrative affairs, when the disputes have the issues that touch on various fields of the affairs, parties in the disputes have to take ADR procedures one by one in all ADR-related institutions. This may lead to too heavy a burden on the disputing parties, furthermore forcing them to give up the remedies of their rights. For more efficient ADR operations, it is necessary that the institutions which set up and operate ADR systems should actively exchange and cooperate with one another. They need to forge and strengthen the solidarity between administrations and courts. The administrative agencies which run ADR themselves have to build up the devices for preparing human resources and material facilities for administrative ADR.

• 한국중재학회지:중재연구
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• 제25권2호
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• pp.71-96
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• 2015

This paper deals with the annulment of the ICSID(International Centre for Settlement of Investment Disputes) arbitral award. The annulment of the ICSID is characterized by the fact that it can be made possible through the special committee of ICSID only. The annulment of the ICSID was constructed on the premise that it is not an appeal procedure. However in the initial period, it was strongly criticized as it allowed new trials or duplicated many of the functions of an appeal and it broke down the boundary between the two systems. Although the trend seemed to be corrected through its 2nd and 3rd generations, it was still criticized for functioning as a new trial. It is approaching its 4th generation. On the other hand, with the activation of investment agreement arbitration based on ICSID and FTA, a certain degree of consistency is required for the ICSID arbitralaward. Also, with the emphasis on the public features of the arbitration for the investment agreement, the necessity of an appeal system is presented. The ICSID Secretariat published the "Opinion on the Appeal Procedure" in 2004 but as the system was criticized as too early due to the cost allocation problem and others, its adoption of an appeal procedure has been delayed. This paper focuses on how the currently incomplete ICSID arbitration judgment annulment system shall be used. Although it is still hardto expect the quality and consistent arbitral award annulment in the ICSID, this paper suggests that the "annulment without the actual new trial" using the restricted authority of a special commission in a creative way shall be pursued rather than just the actual new trial with or without annulment, thus going back to the original concept of the ICSID arbitral award annulment.

• 한국중재학회지:중재연구
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• 제25권2호
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• pp.3-17
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• 2015

For many years commentators have requested more active regulation of attorney ethics in international arbitration. Gradual deterioration of ethical standards in international arbitration will bring disrepute and, once its reputation is lost, it could take decades to rebuild confidence. The first reason for increasing unethical behavior is that there is no ethical code generally applied to all lawyers participating in international arbitration. A second reason might be that nobody is actively regulating attorneys in international arbitration. The first step to solve this problem is that major arbitration institutions should cooperate to enact a uniform code of conduct to be generally applied to all attorneys representing parties in international arbitration. Recently, IBA and LCIA prepared guidelines on party representation in international arbitration, and the guidelines will help attorneys follow uniform standardsof ethics. However, this will not be sufficient. There should be a regulating body to monitor attorney ethics and take sanctions against unethical attorneys accordingly. Arbitrators, who can see unethical behavior by attorneys from the closest distance, are the most appropriate regulating force rather than courts of arbitration seat or an attorney's licensing country. Of course, arbitrators don't have powers to withdraw or suspend an attorney's license, but they have powers to control attorneys'behavior within arbitration proceedings such as an allocation of fees and costs, barring the assertion of claims or defenses, drawing adverse inferences, or precluding the submission of evidence or testimony. Furthermore, arbitrators should be provided with such obligation as active control of attorney ethics. Even arbitration institutions should participate by imposing on an attorney who is a repeat offender a suspension from appearing in future arbitrations. Unethical behavior will decrease through concerted actions among arbitrational institutions to introduce a uniform code of conduct and to empower arbitrators for more efficient regulation of attorney ethics.

• 한국중재학회지:중재연구
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• 제27권3호
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• pp.33-52
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• 2017

This article tried to describe the laws concerning the enforcement of foreign arbitration awards in Indonesia. This issue is relevant in the light of frequent curiosity of foreign commentators, business communities, practicing lawyers, concerning the arbitration in Indonesia, in particular its enforcement of foreign arbitration awards. The main laws on arbitration analyzed were, firstly, the Indonesian law on arbitration, namely Law No 30 of 1999 on Arbitration and Alternative Dispute Resolution and the Presidential Regulation No 34 of 1981 concerning the Ratification of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. The provisions of Law of 1999 analyzed were confined to its international provisions on arbitration, in particular the requirements for the enforcement of foreign arbitration awards and also the requirement that the awards do not violate Indonesian public policy. The problem with the Indonesian arbitration law (and the courts' practice) were that no provisions which provided guidance or meaning with regard to public policy. The absence or lack of guidance or definition on public policy had some times confused lawyers or the parties in dispute fearing that their arbitration awards would not be enforced due to the violation of public policy. Secondly was the different opinion of two Indonesian arbitration experts, Prof. Sudargo Gautama and Prof. Priyatna Abdurrasyid. Both scholars had rather different opinions with regard to the meaning of public policy in Indonesia. Thirdly was a recent case law, Astro Nusantara Bv et.al., vs PT Ayunda Primamitra Case (2010) decided by the Indonesian Supreme Court with regard to the enforcement of foreign arbitration awards. This article concluded that the Indonesian court, in particular the Central of Jakarta Court, so far have given its support that the execution of foreign awards was duly enforced.

• 한국중재학회지:중재연구
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• 제27권3호
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• pp.95-107
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• 2017

Mongolian government enacted the Foreign Trade Arbitration Law to modernize the practice of commercial arbitration. Nevertheless, the Foreign Trade Arbitration Trade Law fell short on a number of fronts and arbitration itself remained a distant second option to litigation within Mongolia. Law on Arbitration of 2003 aimed to modernize the Mongolian arbitration framework so that it would mirror the UNCITRAL Model Law on International Commercial Arbitration. At the same time, the Law on Arbitration 2003 made a conscious decision to deviate from international norms with respect to certain aspects in order to accommodate for the unique circumstances and characteristics of Mongolia. For example, unlike its UNCITRAL counterpart, the Law on Arbitration of 2003 did not include an exhaustive list of grounds for refusing the recognition and enforcement of arbitral awards. In that sense, the Law on Arbitration of 2003 was a resounding success and a drastic improvement on the Foreign Trade Arbitration Law. These factors convinced the Mongolian government to once again revise its arbitration law. This process, which started in 2008 with the help of foreign law firms and institutions, ultimately culminated in the Law of Arbitration of 2017. The chief objective of the Law of Arbitration of 2017 was to more closely adhere to preexisting international norms on arbitration such as the Model Law on International Commercial Arbitration, and there is no question that Mongolia has succeeded in doing so. This article thus concludes by explaining some of the noteworthy improvements made by the 2017 revisions, and by noting that Mongolia is now equipped with a truly international legal framework for arbitration.

• 한국중재학회지:중재연구
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• 제29권3호
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• pp.39-52
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• 2019

There are various factors to consider when parties to an international agreement draft a dispute resolution clause in their written contract. These factors can be classified into two categories. The first category is about the parties and the nature of the contract, such as the parties' places of business and whether the contract contains a simple transaction or has a complicated nature. The second category is about the applicable rules of the parties' places of business or performance such as the private international law, service of process rules, and enforcement of court judgment and arbitration award rules. When parties to an international contract agree to a litigation, they normally choose a forum court and a governing law. In selecting a forum court and a governing law, the parties must consider private international law, service of process rules, and enforcement of judgement rules of candidate forums. In case the parties agree to an arbitration, they have to choose between institutional arbitration and ad hoc arbitration. For ad hoc arbitration, parties still need to further agree on which arbitration rules to use, and in which place the arbitration shall take place. Mediation involves a similar kind of decision as with arbitration. Traditionally, national courts of the parties' places of business have been used as litigation forums in dispute resolution clauses but, recently, arbitration is being increasingly employed as an alternative dispute resolution method in international contracts. Moreover, there have been international efforts to utilize mediation as a dispute resolution method in international commercial issues. Rather than simply taking a dispute resolution clause provided in a sample written contract, parties to an international contract must carefully consider various relevant factors in order to insert a dispute resolution clause which will work well for a particular contract.

• 한국중재학회지:중재연구
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• 제31권3호
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• pp.3-23
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• 2021

England is a significant base for international trade in Europe, and dispute resolution through arbitration is active. Therefore, due to the geographical relationship with the European continent, the settlement of trade transactions and disputes with European countries is one of the most essential tasks. In this regard, arbitration procedures in England have been actively used for a long time. In England, dispute resolution methods through arbitration have been developed centered on merchant groups such as guilds from the 16th century and have been actively used until today. However, the arbitration procedure also had the characteristics of the common law because there was no legislation related to arbitration. Therefore, arbitration based on common law was carried out until the first half of the 19th century. In the 'Arbitration Act 1889', two types of arbitration systems, 'common law arbitration' and 'statutory arbitration' coexisted. However, in the arbitration procedure, according to the newly enacted 'Arbitration Act 1889', the arbitration agreement was binding from the time the arbitration agreement was reached. There was a way to select an arbitrator even if it was not explicitly stipulated in the arbitration agreement, and the arbitration award was quickly enforced. Arbitration under contract was preferred over common law arbitration, where withdrawal and revocation of awards were possible. However, in response to these provisions, the England courts considered the arbitration system to deprive the courts of jurisdiction, while a strengthened judicial review of arbitration procedures was done. In particular, England unified the arbitration-related laws, which had been scattered for a long time, adopted the model law, and enacted the 'Arbitration Act 1996'. Under the recognition and enforcement of arbitral awards in 'Arbitration Act 1996', Section 66 deals with the recognition and enforcement of arbitral awards and foreign arbitral awards. Section 2 of the 'Arbitration Act 1950' is inherited and used as it is. Second, it deals with the execution of arbitral awards under the New York Convention: Article 100 (New York Convention), Section 101 (Approval and Enforcement of Awards), Section 102 (Evidence Presented by a Party Seeking Recognition and Enforcement), and Section 103 (Provides Matters Concerning Rejection Recognition and Enforcement).

• 한국중재학회지:중재연구
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• 제31권1호
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• pp.107-127
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• 2021

Vietnam is an important country with many trade transactions with the Republic of Korea. Arbitration is a method of resolving disputes that can arise with the increase in trade transactions. It is essential to study the legal system and precedents of Vietnam on the approval and enforcement of foreign arbitral awards. Such is the case because the law in Vietnam and the court's position on the approval and enforcement of foreign arbitration awards issued by the courts depend on the possibility of realizing the parties' rights concerning their disputes. Therefore, it is of great value both theoretically and practically to analyze the exact differences between approval and the denial of approval. Vietnam has enacted the Commercial Arbitration Act, which replaces the previous Commercial Arbitration Decree and creates an arbitration-friendly environment that meets international arbitration standards. Regarding the approval and execution of foreign arbitration awards, the Commercial Arbitration Act, the Civil Procedure Act, the Civil Execution Act, and the Vietnam Foreign Arbitration Awards Approval and Enforcement Ordinance are regulated. Following these laws and regulations, the reasons for the approval, enforcement, and rejection of the arbitral award are specified. In accordance with these laws and inappropriate arbitration agreements, an arbitral award beyond the scope of its right of disposition, an arbitral tribunal, or the concerned parties could not be involved in a proceeding or an arbitral award if the involved party does not have an opportunity to exercise its rights lawfully. If the state agency in the forum does not recognize the arbitral award, the dispute is not subject to arbitration under Vietnamese law, or the arbitral award does not conform to the basic principles of Vietnamese law, the parties are not bound, and the foreign arbitration award is rejected for approval and execution.

• 한국중재학회지:중재연구
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• 제31권1호
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• pp.155-171
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• 2021

Recently, the e-business market has become a place of convergence where consumers and suppliers communicate with each other, and a new method of trading of funds has emerged in the process. Crowd-funding is one of the types of money transactions that have emerged in the online space, and its interest and trading volume have been growing rapidly recently. The platform in the online space using crowd-funding method operates in the form of online telecommunication sales, and it is in the form of producing and delivering products based on funds obtained from potential consumers by the operators involved in securing funds. However, if the participating business operators do not deliver the product or deliver the product other than the promoted product and avoid responsibility, the potential demander will not be compensated without mediation by the platform operating entity. In this study, despite the rapid growth in the market size of crowd-funding, consumers who participated in the funding are protected and able to resolve disputes in the event of a conflict amid growing complaints from potential consumers and side effects. The structure or method of crowd-funding is a new form of trading that has different features from conventional e-commerce. Therefore, the legal basis is not yet in place and the standards need to be laid out through various and sufficient discussions politically, legally, socially and culturally and economically. As the potential market and positive effects of crowd-funding around the world have been recognized, a role is required as an ecosystem for new financial transactions. And the potential market could be realized as a new industry if the right legal system and policy consultation were made.