• Journal of Arbitration Studies
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• v.29 no.1
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• pp.53-70
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• 2019

This study analyzed some cases of the China International Economic and Trade Arbitration Commision (CIETAC) related to the application of the Contracts for the International Sale of Goods (CISG). As a contracting party of the CISG, China has accumulated a considerable amount of experience in applying CISG through commercial arbitrations. This study sought to understand how CISG is operated in commercial arbitration in China. By analyzing actual cases in China, Korean commercial arbitration can avoid mistakes and further improve. This study of Chinese cases will give some useful information for Korean companies. As defined by the CISG, the applicability can be divided into direct application and indirect application. When China joined the CISG, it made a reservation out of Article 1(1)(b). Korea and China are contracting parties to CISG and CISG is, therefore, directly applied. It is beneficial for Korea to understand how CIETAC is indirectly applied in China then. Some of the results of this study are as follows: First, CIETAC made a correct judgment most of the time on the direct application of CISG. However, there were mistakes in the judgment of the nationality of the parties in a few cases. The parties must clearly define applicable laws when entering into a contract. Secondly, the 2012 "CIETAC Arbitration Rules" was revised so that the "party autonomy" was introduced into Chinese commercial arbitration concerning indirect application. Therefore, the principle of autonomy of the parties was not fully recognized in the past judgments. Instead, the domestic law of China was applied in accordance with the reservation of Article 1(1)(b). Thirdly, China did not explain the application of CISG in Hong Kong, which led to ambiguity in concerned countries. Therefore, it is necessary to confirm the status of CISG in Hong Kong. In addition, Korean companies should clearly define the applicable laws when dealing with Hong Kong companies.

• Journal of Arbitration Studies
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• v.28 no.4
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• pp.89-110
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• 2018

The purposes of this study are as follows: First, this study reviews the Online Dispute Resolution (ODR) regulations of the EU to resolve disputes which can arise in international e-commerce in the future. Second, this study tries to seek out alternative solutions to dispute resolutions based on these regulations. Third, this study increases the efficiency of the transactions by proposing effective and satisfactory dispute resolution methods for international e-commerce. First, this study reviews the concept of cross-border e-commerce, generally explores ODR, and creates comparisons with Alternative Dispute Resolution (ADR). Subsequently, this study looks into domestic ODR system and analyzes the regulations of EU ODR. This study suggests the implications of the European ODR regulations in the conclusion. The EU ODR platform is considered greatly significant in that it has increased the possibility of settlements in small disputes by enhancing consumers' accessibility to ADR procedures. Therefore, this thesis proposes a method for Korean companies to resolve disputes that may arise in e-commerce with EU by using the ODR platform. As a result, it is expected to increase the competitiveness of Korean companies in the EU market. Both legislative trends related to the ODR of the EU and establishment of the EU ODR platform have significant implications for Korean businesses in Europe. This study is expected to be useful for our businesses in the EU in reviewing the applicability of the EU ODR regulations and the dispute settlement procedures through the EU ODR platform. In addition, this study is expected to prove useful in relation to consumer protection by enhancing consumers' accessibility to dispute settlement institutions in domestic electronic commerce.

• Journal of Arbitration Studies
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• v.28 no.3
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• pp.35-53
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• 2018

The purpose of this paper is to focus on the development of the arbitration system, such as the establishment of the arbitration industry and expanding the scope of arbitration fields. The solution method of arbitration differs greatly from that of the court's trial process. This can be seen in the way of autonomous conflict resolution. Therefore, the role of arbitrator is a very important function. In this sense, it seems necessary to establish a professional arbitrator system. Now the Arbitration Promotion Act has been enacted and interest in the arbitration industry is also rising. It is necessary to deal effectively with new incidents according to changes in the legal environment internationally. In order to do this, it is imperative to train professional arbitrators. A training plan for arbitration manager to assist this is now under consideration. The coming of the Fourth Industrial Revolution and the growth of artificial intelligence (AI) technology will simply stop the uniform way of determining winners by lawsuits. Even in new companies entering new markets as well as overseas companies, assistance from arbitration experts is indispensable in order to effectively deal with international trade disputes that will develop in the future. In addition to fostering the arbitration industry, it is necessary to train experts in domestic and foreign arbitration and arbitration practitioners to provide high-quality legal services. For these human resource development measures, we will explore the subject and procedural methods. The Arbitrators Association should concentrate on these matters and be cautious when focusing on the training of arbitrators and arbitration managers through the selection process. The Arbitrators Association must strengthen the level of new education (designation / consignment). Measures must be taken in order to grant such procedures as well as subsequent steps.

• Journal of Arbitration Studies
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• v.29 no.2
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• pp.107-132
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• 2019

The arbitration procedure, which is a private trial, does not have a separate enforcement agency. Therefore, unless a party consents to the arbitration award and voluntarily fulfills the award, its execution is accomplished through the implementation of the national court. In particular, the decision in the foreign arbitration procedure will be refused or rejected for the arbitration award in case the proceedings of the law and procedure on which the judgment is based are caused by inconsistency with the domestic law or procedural defect. However, all foreign arbitration awards generally do not have to go through the approval process, and it will come into force with the arbitration award. In the case of Germany in the revision of the German Civil Procedure Act of 1996, the main provisions of the New York Convention concerning the ratification and enforcement of arbitration proceedings are reflected. Germany provides for the arbitration procedures in the arbitration proceedings of Book 10 of the Civil Procedure Act. Particularly, with Article 1061 in Book 10 Section 8 below, the approval and enforcement of foreign arbitrators shall be governed. Article 1061 has been referred to as "The New York Convention on the Recognition and Enforcement of Foreign Jurisdictions," Article 5 (1). The main reasons for approval and enforcement rejection are: (1) Reason for the acceptance or refusal of enforcement by request of the parties: Reason for failure of subjective arbitration ability, invalidation of arbitration agreement, collapse of attack or defense method, dispute not included in arbitration agreement, (2) Reasons for the approval and enforcement of arbitration considered by the competent authority of the arbitrator: violation of objective arbitration ability, violation of public order, but not based on the default of German statute.

• Journal of Arbitration Studies
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• v.31 no.1
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• pp.129-154
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• 2021

As our society and industry develop, disputes are becoming ever more complicated and diversified to the point that it is alleged that dispute resolution by court proceedings has certain limits and setbacks. Therefore, it is commonly suggested that mediation by a qualified mediator should come as an alternative method, and there have been many attempts to establish and provide mediation service in the courts and government authorities. To comply with a party's autonomy, which is the essential basis of mediation, and to promote the use of mediation, it is highly recommended that private mediation, rather than court-driven or administrative mediation, shall take the initiative. In the meantime, despite a number of academic research and attempts to increase the awareness and use of mediation nationwide, we have not yet seen meaningful developments due to the longstanding misunderstanding and discredit of mediation. In contrast, Italy has begun to revitalize mediation by enacting 'Legislative Decree No. 28/2020' following the 'Directive 2008/52EC' of the European Parliament and encouraging the so-called via-mediation policy. It is acknowledged to have significantly contributed to the development of private mediation in Italy and the increased use of mediation as a dispute resolution method. It shall be particularly noted that Italy's mediation proceedings have certain traits, including preliminary mediation meetings, mandatory involvement of legal counsel, and tax benefits for the settled cases by mediation. Italy's efforts would provide people with meaningful lessons and perspectives. As society strives to promote private mediation to distribute and utilize the judicial resources' inefficient ways, institutions need to develop practical measures to increase the number of civil and commercial disputes in the mediation proceedings. To that end, legislative efforts to enact relevant laws necessary to provide incentives to disputing parties and establish integrated education and certification programs to train qualified mediators need to start soon.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.163-177
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• 2020

There are several ways to implement charter parties in the operation of the vessel. Under the time charter party, the charterer borrows the vessel from the shipowner and uses the vessel to benefit his business. The time charter party's legal relationship can be divided into internal and external relationships. This article deals with an internal relationship. The legal matters between the shipowner and charterer are regulated by the agreement. The NYPE is the most widely circulated type of time charter party. According to the NYPE, navigational matters fall upon the shipowner while business matter falls upon the time charterer. There are vague parts in interpreting NYPE articles. NYPE Art. 8, called the employment clause, is one of them. The Master employed by the shipowner should follow the order of the charterer. Whether the charterer has the right to order the Master of the vessel to follow the navigating route recommended by him was addressed in the Hill Harmony case by the UK Supreme Court. The court was affirmative. Under the Ocean Victory case, whether the time charterer has an obligation to order the Master to go out to escape heavy weather from the berth at the port was at issue. The Japanese lower court decided negatively. There is a tendency that many countries insert default rule in the maritime law to apply it to the case at issue in a case where there is no agreement. It serves the enhancement of legal stability; China, Japan, and Germany are such countries. The author thinks that Korea should follow the above three countries' revision of their maritime law.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.139-161
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• 2020

In this study, the factors affecting opportunism that causes conflict in the franchise system between franchisor and franchisee were analyzed based on the transaction cost theory and power-dependency theory. Hypothesis 1 states that franchisor support will negatively affect opportunism. Hypothesis 2 expresses that franchisee transaction-specific investment on the relationship with the franchisor will positively affect opportunism. Hypothesis 3 asserts that franchisee dependency on the franchisor will positively affect opportunism. All of these were supported. However, Hypothesis 4, maintaining that franchisee competitive intensity will positively affect opportunism, was not supported. The theoretical and practical implications of this study are as follows. This study has identified the antecedents of franchisor opportunism that causes conflict in the franchise system by comprehensively applying the transaction cost theory and power-dependency theory. This study can also identify what a company should manage specifically to lower opportunism by identifying the antecedents of franchisor opportunism in the franchise system. The limitations of this study and the directions for future studies are as follows. First, not all of the antecedents of franchisor opportunism in the franchise system have been extensively investigated from the transaction cost theory's and power-dependency theory's viewpoint. In the future, it is necessary to identify additional factors. Second, the study was conducted only from the franchisee's perspective. In future studies, more accurate research results can be obtained by simultaneously examining the franchisee's point of view and the franchisor's point of view.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.121-138
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• 2020

The O2O services in the healthcare sector have only been in full swing for about three years, and unlike existing O2O consumer goods, the scale and scope of the dispute are more complicated due to restrictions on medical treatment. In this study, O2O service platform operators and medical institutions' roles and responsibilities were redefined as a countermeasure for resolving disputes in healthcare O2O services and the laws for changing the transaction environment. A change in institutional mechanisms was proposed. This study looked at the types of consumer disputes related to healthcare O2O services as insufficient information problems, problems in the course of medical service implementation, problems with immunity provisions for platform operators, cancellations, and non-compliance with refunds. All the information generated during transactions in the healthcare sector was extensive in scale and included the most sensitive information among personal information, stressing the importance of ensuring security. The area that started in the O2O range before the medical institution visit also proposed a plan to establish a system for the delivery of proven information as a pre-medical person. The scale and growth will grow faster, given that consumers can experience the information they want anytime, anywhere they want. However, the platform broker's role, a link player, will become more important because consumers who use the service will have their first meeting with non-face-to-face product providers. On the other hand, service providers may have side effects of misleading consumers by providing false information or misleading consumers through exaggerated advertisements. The O2O service market is expected to expand beyond distribution and dining out to the entire industry. However, since it is challenging to check accurate statistics on the detailed market, various disputes and consumer protection measures will be required for each detailed market, and comprehensive leading solutions will be essential in the future.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.31-50
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• 2020

The leading foreign arbitration agencies have established a representative office in China since 2015 to improve their arbitration agencies' problem being neglected by foreign parties. The Chinese government has enacted a system in which mediation services can be provided in China. The Chinese government seems to expect that if foreign arbitration agencies enter China and compete with Chinese arbitration agencies, Chinese arbitration agencies will also have an opportunity to develop through competition. In addition, it seems to reflect the expectation of Chinese parties that rather than using a foreign arbitration agency under foreign countries as the arbitration site to settle disputes, it would be more advantageous to arbitrate in China as the arbitration site with a foreign arbitration agency. The Chinese government has adopted a strategy to gradually open China's commercial arbitration service market to foreign arbitration agencies. Regarding the scope of arbitration services, China opened an arbitration service market limited to non-profit activities and foreign arbitration agencies in 2015 and then opened it to commercial activities in 2019. Also, the provision of arbitration services by foreign arbitration agencies is limited to foreign-invested companies registered in the Shanghai Pilot Trade Zone and parties in China, which are the counterparties of disputes between them. It will take a little more time to see how much the Chinese government will expand the number of parties that can use foreign arbitration agencies in the future.

• Journal of Arbitration Studies
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• v.32 no.2
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• pp.3-30
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• 2022

On 27 October the Supreme Court of UK handed down its much anticipated decision in Kabab-Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2021] UKSC 48. The issues for the Supreme Court to decide were as follows: (1) which law governed the validity of the arbitration agreement; (2) if English law applied, whether, as a matter of English law, there was any real prospect that a court might find that KFG became a party to the arbitration agreement, and (3) whether, procedurally, the Court of Appeal was correct in giving summary judgment refusing recognition and enforcement the award, or whether there should have been a full rehearing of whether there was a valid and binding arbitration agreement for the purposes of the New York Convention and the AA 1996 (the 'procedural' issue) The decision in Kabab-Ji provides further reassuring clarity on how the governing law of the arbitration agreement is to be determined under English law where the governing law is not expressly stated in the arbitration agreement itself. The Supreme Court's reasoning is consistent with its earlier decision on the same issue, albeit in the context of enforcement pursuant to the New York Convention, rather than considering the arbitration agreement before an award is rendered. This paper presents some implications of Kabab-Ji case. Also, it seeks to provide a meaningful discussion and theories on the arbitration system in Korea.