• Journal of Arbitration Studies
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• v.32 no.1
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• pp.25-42
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• 2022

The modern arbitration practice recognises the need for a faster and simplified procedural framework for international disputes with fairly low amounts at stake. This has driven several institutions to expand their offer of procedural guidelines with a simplified set of rules that would fit this purpose. Expedited arbitration is increasingly used by parties and is growing in popularity. The basic idea behind establishing expedited arbitration rules is to create the possibility for the parties to a dispute to agree on a simplified and streamlined procedure and to have an arbitration award issued within a short period. The associated cost savings for the parties is another benefit. The importance of developing rules for expedited dispute resolution has recently also been considered by the UNCITRAL Working Group II, in light of the "increasing demand to resolve simple, low-value cases by arbitration" and "the lack of international mechanisms cope with such disputes." As a result, the UNCITRAL 2021 Expedited Arbitration Rules (UNCITRAL EAR) took effect on September 19, 2021. The EAR was adopted by the Commission on 21 July 2021 and, next to UNCITRAL's well-known instruments like the Arbitration Rules (UAR) and the Model Law, represent another chapter in the Commission's impactful work in the field of international arbitration. Overall, the UNCITRAL EAR has great potential to meet the need for more flexible and efficient arbitration proceedings, primarily because they provide the tribunal with strong managerial powers while still leaving room for consultation with the parties. However, parties must remember that not all disputes may be suitable for expedited arbitration, and disputes that are complex or have the possibility of being joint or consolidated may not benefit from simplified procedures and tight deadlines. This article will outline the core features and characteristics of the UNCITRAL EAR.

• Journal of Arbitration Studies
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• v.32 no.1
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• pp.71-91
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• 2022

The legal integration in the European Union that seeks a unified system in consumer disputes and the German Consumer Dispute Mediation Act based on this pursues the procedural fairness of consumer disputes and the equality of results. The role and legal status of the dispute mediator, who plays a very important role in this process, and the stable operation of the dispute resolution system and the guarantee of reasonable results through the guarantee of fairness and independence are very important values. In particular, the dispute mediator under the Act is conceptually different from the existing mediator or mediator, and through this distinction, the duties and contents of the dispute mediator are also distinguished. For this reason, the qualifications of dispute mediators that affect the outcome of dispute mediation are strictly stipulated. There have been some criticisms of this strictness, and such strictness is also seen as an excessive limitation. However, these standards can be understood as one of the efforts to make the dispute mediation procedure more systematic and to operate objectively in accordance with laws and procedures. In addition, in relation to the issue of independence and impartiality of the dispute mediator, the status of the dispute mediator is guaranteed in various aspects. In economic terms, it is not influenced by external factors, and furthermore, in order to guarantee job stability, the results of job security and dispute resolution are not linked. By examining the appropriate level of discipline for these dispute mediators, we expect the developmental growth of the consumer dispute resolution system under our Act.

• Journal of Arbitration Studies
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• v.32 no.2
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• pp.135-157
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• 2022

Religion has a very close relationship with our everyday lives. In particular, religion maintains an absolute and ultimate value system and is deeply associated with all sectors of society such as politics, economy, thought, arts, culture, and science. The original meaning of religion in Buddhism means the teachings that become fundamentals. There are numerous religions around the world, and each religion has its own object of faith, different system, and unique rites and lifestyles. Therefore, evaluating or denouncing other regions based on the doctrines or conventions of a specific religion can lead to conflicts and disputes. The Buddhist Vinaya Pitaka related to alternative dispute resolution (ADR) is a method regarding the operation of a community. Vinaya Pitaka contains Buddha's teachings about individual and organizational ethics and on community life and activities. It is the Buddhist dispute resolution (BDR) of the Vinayata Pitaka that contains knowledge on howto remedy disputes among the four types of disputes that can occur. Vinaya Pitaka contains the principles and systems of BDR, and it is sufficient background for succeeding in the development of harmony today. The messages of laws, ethics, and Buddhist teachings are clear in these characteristics. The systems, progress, and procedures for various rites, events, and disputes as well as for everyday life, etc. display a rational operating system through karma. In particular, when disputes occur, the cause of the dispute is resolved as much as possible through transparent fairness and being unanimous using the seven remedies for disputes. Buddhist priests pursue private autonomy of ADR through karma, repentance, acceptance, etc. to maintain and continue the integrated functions of Buddhist priest harmony.

• Journal of Arbitration Studies
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• v.32 no.2
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• pp.85-114
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• 2022

When human rights disputes are related to the cross-border investments treaties, the investment arbitral tribunals are confronted with the question of how to adjudicate connected human rights violations. The traditional structure restricts arbitration proceedings to the parties named within an investment treaty, i.e., Investor-Claimant and State-Respondent. If human rights issues occur, States must act as proxies for citizens with human rights claims. This effectively excludes individuals or groups with human rights concerns and contradicts the premise of international human rights law that seeks to empower human rights-holders to pursue claims directly and on an international stage. The methods for intorducing human rights issues in the context of investment arbitration proceedings are suggested as follows: First, human rights arguments can be introduced into ISDS by the usual initiator of investment disputes: the investor as the complainant. Especially, if the jurisdictional and applicable law clauses of the respective international investment agreements are sufficiently broad to include human rights violations, adjudicating a pure human rights claim could be possible. Second, the host state may rely on human rights argumentation as a respondent of an investor claim. Human rights have played a role as a justification for state measures undertaken to comply with human rights laws. Third, third party interventions by NGOs and civil society groups as amici curiae may act as advocates for affected populations or communities in response to the reluctance of governments to introduce their own human rights duties into the investment dispute. Finally, arbitrators have also referred to human rights ex officio, i.e., without having a dispute party referring to the specific argument. This was mainly the case in the context of determining the scope of property rights and the existence of an expropriation. As all U.N. member states have human rights obligations, international investment laws must be presumed to be in conformity with the relevant human rights obligations.

• Journal of Arbitration Studies
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• v.32 no.1
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• pp.43-69
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• 2022

In the case of the United States, which has the same provision as Article 10 of the Federal Arbitration Act, a contract may be exceptionally validated if the parties have clearly concluded the contract to expand the grounds for vacating awards in an arbitration agreement. It is possible that the parties create the grounds for vacating that is not stipulated in the statue by clear agreement. However, it remains the issues when this contract is valid. If we investigate the grounds for setting aside as discussed in this paper, in cases ① where an arbitrator failed to apply the substantive law expressly designated by the parties without a good reason; ② where there was a serious error in the application of the substantive law; ③ where an arbitrator decided under ex aequo et bono despite the parties explicitly designated the substantive law, the parties may bring an action for annulment of arbitral awards in court according to their agreement to expand the grounds for vacating the awards. It is important enough to change the rights and obligations of the parties for them whether or not the substantive law of the arbitration was applied. With Regard to the contract to expand the grounds for setting aside the awards in arbitration agreement, there are still issues how to handle the case where the parties have not designated the substantive law, and the validity of a contract to expand the grounds for vacating on reasons other than violation of law application, and relations with Article 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, where the misapplication of the law does not stipulated as the grounds for refusal to recognize and enforce the foreign arbitral award, and so on.

• Journal of Arbitration Studies
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• v.32 no.3
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• pp.29-46
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• 2022

Until recently, there has been a circuit split as to whether parties to foreign private arbitral proceedings could seek assistance from the U.S. courts for discovery pursuant to 28 U.S.C. §1782. The circuit courts have differed on the issue of whether a private arbitral proceeding may be considered a "proceeding in a foreign or international tribunal" in terms of the statute, which would ultimately allow or disallow judicial assistance in taking of evidence by the U.S. district courts for use in the requested proceedings. While the U.S. Supreme Court has addressed the applicability of §1782 in its Intel decision in 2004, it had not established a test as to what constitutes a foreign or international tribunal for the purposes of §1782, thereby leaving it open for lower courts to continue to interpret §1782 in their own ways, as requests for judicial assistance in taking of evidence are filed. In the recent decision of ZF Auto. US, Inc., v. Luxshare, Ltd., the Supreme Court has finally clarified that in order for an arbitral panel to be a "foreign or international tribunal" under §1782, such panels must exercise governmental authority conferred by one nation or multiple nations. Therefore, private commercial arbitral panels are not "foreign or international tribunal(s)" for the purposes of §1782 because they do not constitute governmental or intergovernmental adjudicative bodies. Such holding is necessary and legitimate for interested parties in international arbitration, as well as, potential parties of arbitration who are contemplating alternative dispute resolution for their dispute(s).

• Journal of Arbitration Studies
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• v.31 no.1
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• pp.23-54
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• 2021

While maritime arbitration industry has not been prevalent in Korea, Korea ranked fifth in terms of export volume and its shipbuilding industry ranked top globally in shipbuilding order volume in 2020. The discrepancy between the maritime industry's productivity and relative lack of maritime arbitration has had a negative impact on Korea's economic development. To address these problems, this paper i) reviews preceding research, ii) examines the Korean maritime arbitration system's status and analyzes the KCAB's maritime arbitration statistics from 2005-2020, iii) examines major foreign maritime arbitration institutions' status and strategies including LMAA, SMA, SCMA, and HKMAG, and lastly iv) suggests practical ways to promote maritime arbitration in Korea. The Suggestions for promoting maritime arbitration are 1) to prepare and promote various maritime standardized forms for the Korean shipping industry, 2) to insert an arbitration clause in medium and large-size Korean shipping firms' B/L clause, 3) to expand professional maritime manpower training and other infrastructure, and 4) to enhance the predictability of the result of arbitration through maritime arbitral awards or by examining the feasibility of the appeal system against the arbitral award only on a point of law in the future. In conclusion, the success or failure of promoting maritime arbitration in Korea depends on the will, passion, cooperation and practice of the most important key players in maritime arbitration, such as the Asia Pacific Maritime Arbitration Center (APMAC), the Korean Commercial Arbitration Board (KCAB) and the Seoul Maritime Arbitrators Association (SMAA).

• Journal of Arbitration Studies
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• v.32 no.4
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• pp.143-164
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• 2022

It is not an exaggeration to say that our society is already one of disputes. Since circa 2010, the average number of lawsuits filed every year is upwards of six million cases, and resolving disputes through trials is already fully saturated. The functional roles of the court reflect that there are many lacking areas such as systems, tools, and procedures related to social integration. In addition, ADR, which is carried out in advanced capitalist nations to supplement the judicial functions, has also been implemented in our society for the past 60 years. However, for the reason why the usage rate of ADR did not increase for legal consumers, we cannot overlook government activities that did not make sufficient promotions related to the lack of awareness. In Korea, ADR is mainly composed of government-initiated types, and in particular, there is no ADR framework act that can play an integrated role. Furthermore, for the conciliation system of the court, over 80%of conciliation are conducted focusing on court of lawsuits, and legal basis and procedures between institutes are different for administrative ADR, and communication does not go smoothly, thus making it inefficient. Such examples cannot avoid being a background for criticism when considering the fundamental ideologies and beliefs of ADR. The Vinaya Pitaka of sangha related to ADR is a separate method for operating communities. This is the BDR (Buddhist Dispute Resolution) method that encompasses personal ethics, organizational ethics, harmony through various community gatherings, and adhikaranasamatha on the four issues that could occur in legal review procedures. This has become the sufficient background for succession and development for parisa sangha and gana sangha among individuals.

• Journal of Arbitration Studies
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• v.33 no.1
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• pp.51-76
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• 2023

It is important who is bound by an arbitration agreement and what is the subject of the agreement in resolving disputes through arbitration. However, there are no provisions on them in the Korean Arbitration Act. Where an arbitration agreement is valid, the persons who are bound by the agreement cannot bring the claims which are the subject of the agreement to a court. Therefore, in determining the subjective scope of the effect of an arbitration agreement, we should make allowances for the essential qualities of arbitration to ensure the efficient resolution of disputes on the basis of the parties' agreement, and take caution not to infringe on the rights to be tried in court. Where the rights or legal relationships constituting the dispute that is the subject of the arbitration agreement have been assigned, the effect of the arbitration agreement between the predecessor and the other party should be extend to the successor, when it is agreed to transfer the status under the arbitration agreement to the successor between the three. However, in the absence of such an agreement, it is necessary to weigh the interests between the predecessor, the other party and the successor to determine whether the arbitration agreement has any effect on the successor. Arbitration is a method of resolving disputes based on the agreement of the parties. If it matters whether third parties who are not parties to the arbitration agreement is bound by the arbitration agreement or may invoke it, it should be resolved according to the intentions of the parties. Where the parties to an arbitration agreement have agreed to allow a third party to invoke the arbitration agreement, the effect of the arbitration agreement will extend to the third party. However, even if the parties to the arbitration agreement have not expressly agreed on this, when it is recognized that the parties have sought to resolve the dispute through arbitration even in relation to a third party by exploring the reasonable intentions of the parties, the effect of the arbitration agreement will extend to the third party.

• Journal of Arbitration Studies
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• v.33 no.1
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• pp.3-22
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• 2023

The purpose of this study is to present implications by analyzing the Swiss Federal Court's annulment of the arbitration Awards in Court of Arbitration for Sport(CAS). As international interest in the sports sector increases, related disputes are also increasing. Therefore, the role of CAS specializing in sports disputes is becoming very important. In particular, the Swiss federal court's annulment of the arbitral awards made by the CAS could contribute significantly to the development of sports arbitration in the future. Looking at the case analyzed in this study, first of all, it is about the partiality of the arbitrator. The court judged that the arbitrator posted and shared racist articles on SNS, which could be sufficiently biased. Next, it is about the uncertainty of the arbitration clause. The arbitral award was finally canceled due to the issue of whether the CAS could make an arbitral award with jurisdiction over a clause that includes both dispute resolution through a sports organization and dispute handling in a national court. As a result of the analysis of this study, in the case of unclear arbitration provisions, it will be necessary to prepare an arbitration agreement. In addition, in the case of unclear arbitration provisions, it will be necessary to prepare a post-arbitration agreement. Finally, in order to revitalize sports arbitration, it will be necessary to train professional arbitrators in Korea, support them to work internationally, and establish specialized arbitration institutions.