• 한국중재학회지:중재연구
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• 제31권1호
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• pp.83-105
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• 2021

If aggrieving consumers or employees cannot prove both substantive and procedural unconscionability, many U.S. state courts will enforce arbitration agreements. Additionally, U.S. courts weigh a variety of factors to determine whether an arbitration agreement is substantively unconscionable. For example, U.S. courts have considered one or a combination of the following factors: (1) the fairness of contractual terms; (2) the severity of contractual terms' deviation from prevailing standards, customs, or practices within a particular industry; (3) the reasonableness of goods-and-services contract prices; (4) the commercial reasonableness of the contract terms; (5) the purpose and effect of the terms and (6) "the allocation of risks between the parties." Further, procedural unconscionability characterized by surprise or lack of knowledge focuses on terms that are deceptively hidden in a mass of contract language, the object of another concealment, or imposed in the circumstances involving haste or high-pressure tactics so that they are not likely to be read or understood. This unconscionability doctrine can be applied to a situation where an alcoholic dementia-afflicted older adult is admitted to a nursing home. At that time, because she had alcoholic dementia, which precluded her reading, comprehending, writing, negotiating, or signing of any legal document, her son, who did not understand the adhesion contract, signed the standardized residential contract and the arbitration agreement.

• 한국중재학회지:중재연구
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• 제31권2호
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• pp.99-118
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• 2021

The participants in this study were university students, who are millennials and familiar with various devices and SNS enabling hyper connection, such as smartphones, the Internet, and the Internet of Things. People are sustaining their relationships with others by using the latest technology and cutting-edge devices at will. Some purchases are made at offline stores through online information, but products are checked through offline stores and purchased online. The MZ generation, which does not always have a fixed and constant behavioral response pattern, was considered a participant in this study because the response pattern may vary depending on one's tendency to avoid uncertainty. As a result of experimenting with the MZ generation, similar results were found in all dependent variables. Advertorial and general ads treated as independent variables affected the participants' tendency to avoid uncertainty. In other words, uncertainty avoidance tendency and interaction effect were found as a result of verifying the effects on the dependent variable of ads type. In an advertorial, the group with low uncertainty avoidance tendencies showed higher dependent variable effects than the group with high uncertainty avoidance tendencies; in general ads, uncertainty avoidance tendencies were higher. The higher group showed higher dependent variable effects than the lower group. Therefore, the group with a low tendency to avoid uncertainty has a high level of dependent variable effects in the advertorial, and the group with high uncertainty avoidance tendency performs self-interpretation in general ads.

• 한국중재학회지:중재연구
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• 제28권4호
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• pp.131-152
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• 2018

On October 31, 2013, the Singapore Court of Appeals handed down a landmark decision in the case of PT First Media TBK v Astro Nusantara International and Others [2013] SGCA 57. The case arose out of an arbitration in Singapore involving the Malaysian conglomerate Astro and the Indonesian conglomerate Lippo, which culminated in a USD 250 million award in favor of Astro. The final award was given to three Astro subsidiaries who were not parties to the arbitration agreement, but who were joined in the arbitration pursuant to an application by Astro. Lippo then applied to the Singapore High Court to set aside the enforcement orders. The Court of Appeals, however, reversed the High Court's decision, and found that Astro was only entitled to enforce the awards. Also, the Court of Appeals undertook a detailed analysis of the use of active and passive remedies to defeat an arbitral award at the seat and the place of enforcement, respectively. It also touches on the innovation of forced joinders of third parties in arbitrations, which have garnered significant interest in the arbitration community. This decision is therefore expected to have a significant impact on the practice of international arbitration, including in relation to how awards can be enforced or defeated, as the case may be.

• 한국중재학회지:중재연구
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• 제28권4호
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• pp.43-59
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• 2018

This study aims to review various efforts required by medical institutions to prevent medical accidents in advance and to suggest the necessity of introducing liability insurance for medical accidents based on cases abroad and compulsory professional indemnity insurance at home. Over the past five years between 2013 and 2017, the number of inquiries regarding medical accidents and medical disputes has increased by 11.1 percent from 36,099 to 54,929, and the number of mediation and arbitration for medical disputes has increased by 14.3 percent from 1,304 to 2,225. Since some medical accidents even cause social problems, a compulsory insurance system for the liability of medical institutions for damages need to be introduced to promptly compensate the victims of medical accidents and to ensure compensation by medical personnel. In Korea, a system is in place to provide compensation for a client who suffers an accidental damage after receiving professional services, regardless of whether or not the professional service provider can provide compensation. In major foreign countries, a medical liability system is in place that is applied either by the principle of liability with fault, or the principle of liability without fault. In this study, the cases of compulsory insurance and semi-compulsory insurance in the US and Japan to which the principle of liability with fault is applied, as well as the case of New Zealand to which the principle of liability without fault is applied, were examined. It is necessary to urgently introduce the compulsory insurance system for the liability of compensation to prevent medical disputes and to compensate for the life and physical damages of the victims of medical accidents in domestic medical institutions. Doing so is expected to ensure fair compensation for the victims of medical malpractice and compensation by medical personnel, thereby improving medical practice.

• 한국중재학회지:중재연구
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• 제29권2호
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• pp.3-34
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• 2019

The resumption of economic cooperation between South and the North Korea will be a new growth engine for our economy. Many Korean companies are preparing to invest in North Korea in accordance with the progress of inter-Korean relations. However, there are many risks inherent in inter-Korean economic cooperation, as experienced in previous cases. Specifically, one should be prepared for unfair measures such as the expropriation of investment assets of South Korean enterprises by North Korea authorities. Therefore, it is essential to review the protection measures of investment in North Korea and to review the investment dispute settlement system. The South and the North have an agreement to establish the inter-Korean Commercial Arbitration Committee to resolve the disputes that may arise if one party's investments are lost due to inappropriate or unfair measures due to the other party's authority. However, the Investment Agreement, which governs the Inter-Korean Commercial Arbitration Committee, contains a number of declarative statements that are somewhat ineffective. Even today, nearly 20 years after the adoption of the Agreement, the specific detailed procedures have shown no real progress, such as in the enactment of arbitration rules. Therefore, at present, it is difficult to expect a system that can effectively address the damage of our corporations which have invested in North Korea. When the assets freeze after the suspension of Kumgang tourism and the closure of the Kaeseung Industrial Complex by North Korea, the activation of the inter-Korean Commercial Arbitration Committee is the most important prerequisite for economic cooperation with North Korea. For this purpose, the resolution of disputes through the Inter-Korean Commercial Arbitration Committee has to be made more concrete, with the effectiveness of the dispute settlement system enhanced by means of various efforts.

• 한국중재학회지:중재연구
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• 제28권4호
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• pp.153-172
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• 2018

In solving international commercial disputes, arbitration has a unique advantage. Therefore, when most parties sign a charter party, they contain arbitration clauses. Whether the arbitration clause in the charter party can be effectively incorporated into the bill of lading and bind to the third party-bill holder becomes an important issue. Based on the problem above, this paper compares the arbitration system between Korea and China, and discusses the composition of the Chinese Maritime Court and the Chinese court's adjudication of arbitration for foreign countries, which are recognized and enforced in China. What is most important in this study is observing the Chinese case from the beginning of 2000 to the present in order to rule whether the Chinese court can effectively incorporate the arbitration clause in the charter party into the bill of lading, as well as whether it constitutes an effective binding force for third parties and changes in standard of recognition. Finally, through comparative analysis, the study concludes that in China, the arbitration clause in the charter party can be effectively incorporated into the bill of lading, and that the conditions for the third parties can be effectively restrained. There must be several points to be noted when recording the bill of lading. This would then help reduce the legal risks and promote the sustainable development of international transactions.

• 한국중재학회지:중재연구
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• 제29권1호
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• pp.3-29
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• 2019

A franchise business is a business in which the owners, or "franchisors," sell the rights to their business logo, name, and model to third party retail outlets, owned by independent, third party operators, called "franchisees." There are a number of features in franchising or terms in franchise agreements that may lead to disputes between franchisors and franchisees. These disputes may arise because of underlying risks in the franchise relationship, franchise agreement, or conduct of the parties. In this case, ADR is an effective way to resolve disputes in a quicker and often less costly way than having to go to court. If an agreement cannot be reached through mediation, then arbitration becomes the next step to resolving the differences. Whereas mediation is non-binding and focused on facilitating the parties to find a resolution that is acceptable to both, arbitration is binding and may result in a decision that is not acceptable to one of the parties. These situations can be resolved through experienced arbitration as arbitration allows franchisees to settle matters promptly and outside of the public eye. In addition, franchise dispute arbitration is usually less costly than going to traditional court. Considering all of these, reaching an agreement will also have typical clauses that address the issue of dispute resolution. It is again a more efficient process than going through the legal process and courts and is often less costly. By going through arbitration, the parties agree to give up their rights to pursue the dispute in the courts. However, there is a problem that the arbitration prior to the agreement and under the terms would be contrary to the restriction of jurisdiction under the "ACT ON THE REGULATION OF TERMS AND CONDITIONS" in Korea.

• 한국중재학회지:중재연구
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• 제29권2호
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• pp.161-199
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• 2019

As international trades between Korea and China increase, the number of civil disputes also increases. The civil dispute settlement system and the court system in China are distinctive from those of Korea. China has its own court systems which are characterized by the Chinese Communist System. Due to the influence of the decentralized local autonomy tradition, the case laws of each Province in China are not unified throughout the China. This is partly because only two instances are provided in China, and the parties cannot appeal to the Supreme People's Court of China unless there is a special reason. In Korea, three instances are provided and parties can appeal to the Supreme Court if a party so chooses. In addition, there are many differences in the judicial environment of China compared to Korea. Therefore, if there is a dispute between a Korean party and a Chinese party, arbitration is recommended rather than court litigation. This article examines the points to be considered for interim measures in China during arbitration. Where the seat of arbitration is Korea, interim measures cannot be taken by the order of the Chinese court in the middle of or before arbitration procedures. On the other hand, it is possible to take interim measures through the Chinese court in the middle of or before the arbitration procedure in China or Hong Kong. It also reviews the points to be noted in case of the enforcement of arbitration awards in China where permission from the upper Court is required to revoke or to deny the recognition or enforcement of a foreign-related or foreign arbitration award.

• 한국중재학회지:중재연구
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• 제29권2호
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• pp.65-88
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• 2019

The ICC International Court of Arbitration ('the ICC') has published the Note to Parties and Arbitral Tribunals on the Conduct of the Arbitration under the ICC Rules of Arbitration ('2019 Revised Note) which came into force on the 1st of January 2019. The 2019 Revised Note is aimed at providing parties and arbitral tribunals with practical guidance regarding the conduct of arbitrations pursuant to the ICC Arbitration Rules as well as the practices of the ICC. Unless otherwise stipulated, the 2019 Revised Note applies to all ICC arbitration cases, regardless of the version of the ICC Arbitration Rules, in accordance with which they are conducted. The most noteworthy amendment is the introduction of provisions on a new mandatory transparency system by setting forth the publication of the arbitration case data and arbitral awards, maintaining the rule stipulating the provision of information regarding arbitral tribunal under the ICC 2016 Note. Among others, the 2019 Revised Note provides that parties and arbitrators in ICC arbitrations accept that ICC awards made as of the 1st of January 2019 may be published, excluding some exceptions. Under this circumstance, this paper i) explains five amendments of the 2019 ICC Revised Note, ii) examines major issues regarding the publication of information of arbitral tribunal and awards, iii) makes a comparative analysis of that attitude of 11 international arbitration institutions, and lastly iv) suggests recommendations for the Korean arbitration community.

• 한국중재학회지:중재연구
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• 제29권2호
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• pp.35-63
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• 2019

Since imposing Performance Requirements (PRs) on investors have been conducted as a means to protect a host state's domestic industry in the short run, with its effect on improving the international balance of payments, it has been implemented mostly in developing countries. From the viewpoint of investors, however, PRs hinder free competition and investment activities and have the effect of distorting international trade activities; therefore, they are expected to bring detrimental effects on the host state's economic development in the long run. PRs provided by International Investment Agreements (IIAs) and WTO-TRIMs, too, included many abstract regulations which are grounded on the host state's economic efficiency in the past; however, those PRs are gradually being more concretely specified, shifting to a form of prohibition with the goals of increasing the protection on investors and realizing investment liberalization. Accordingly, when Korea freshly concludes IIAs or revises them afterwards, one should focus more on following the points regarding PRs. First, to protect Korean companies' investment activities, it is advantageous to list the contents of prohibited PRs extensively and concretely and create a stipulation. Second, it is necessary to list the contents of the PRs prohibited and add the phrases for prohibiting "any other similar requirements" explicitly, as well so as to cover the PRs that can appear newly. Third, as in the cases associated with PRs, issuable matters are mostly either the range of applying PRs or the conditions of applying them (relevance or detrimental effects); therefore, it is necessary to classify the cases accumulated by issues and analyze them thoroughly. In conclusion, as this study has analyzed the theoretical characteristics of PRs provided in IIAs and related cases and suggests exquisite theory regarding PRs, it not only lays fundamental grounds for follow-up research but also gives useful and practical guidelines for the parties concerned and the arbitrators according to the ISDS procedure.