• Journal of Arbitration Studies
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• v.26 no.1
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• pp.135-157
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• 2016

CISG is the most important international convention in the field of international sale of goods. Many arbitration organizations often invoke this convention when settling disputes between the parties concerned. China has been one of the contracting states since the effective date of CISG, and has settled many cases with it. This article aims at analyzing the legal status of CISG in China and the methods with which Chinese arbitration organizations apply CISG. Also, it looks into the existing problems, based on which it provides suggestions for improvement.

• Journal of Arbitration Studies
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• v.26 no.4
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• pp.43-62
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• 2016

The international arbitration system has been a useful method of settling disputes arising from international transactions. Arbitration provides the opportunity for the parties to choose a fair and neutral forum and to participate in the selection of the decision maker and the rules that will be applied. Because arbitration is a creature of contract, there is no agreement to arbitrate if there is no contract. An arbitration clause should be designed to fit the circumstances of the transaction and the parties' needs. The parties draft an arbitration clause with insufficient attention to the transaction to which it relates. Insufficient attention to arbitration agreement has caused the delay of arbitration procedure or even the inability to arbitrate. Therefore the parties pay sufficient attention to the underlying transaction so that the arbitration clause can be tailored to their particular requirements and to possible disputes that may reasonably be anticipated.

• Journal of Arbitration Studies
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• v.26 no.4
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• pp.63-82
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• 2016

In order to cope with the changes of International Commercial Arbitration, the Shanghai International Economic and Trade Arbitration Commission (SHIAC) regulated an Emergency Arbitrator for the first time, implementing the arbitration rules in China (Shanghai) Pilot Free Trade Zone on May 1, 2014. Moreover, the China International Economic and Trade Arbitration Commission (CIETAC) also regulated the Emergency Arbitrator in the revised arbitration rules on January 1, 2015. However, it caused considerable contradiction that SHIAC and CIETAC admitted an interim measure decision by the Emergency Arbitrator under the circumstance that the Chinese court can impose a preservative measure in the Civil Procedure Code (CPC) and Arbiration Act. This study attempted to compare the main contents of an Emergency Arbitrator regulated in the arbitration rules of SHIAC and CIETAC with arbitration rules of representative arbitral institutions which operate an Emergency Arbitrator. In addition, this study verified the application features and problems through comparing the rule of SHIAC and CIETAC with the rule related to the preservative measure in Chinese law.

• Journal of Arbitration Studies
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• v.29 no.4
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• pp.141-164
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• 2019

The purpose of this paper is to examine the customs clearance and arbitration systems of Vietnam, Indonesia, and Thailand, from among ASEAN countries, and to present the practical implications. This paper analyzes the customs and arbitration systems through a literature review by collecting data from papers, research reports, and laws and regulations related to Vietnam, Indonesia, and Thailand. There are significant differences between these countries in relation to customs and payment of customs duties. Also, they have different procedures for the appointment of arbitrators if there is no agreement by the parties as to the number of arbitrators. Therefore, a comparison of the arbitration system and customs clearance procedures in ASEAN countries is timely and necessary, and there is a need for more research to be conducted in the future.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.87-111
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• 2020

Smart contracts are implemented by blockchain technology, which stores the terms of the contracts of both parties on the blockchain. In the event of an international dispute over smart contracts and blockchains, no special solution has been proposed, such as the enactment of the International Unification Act. The blockchain platform which operates smart contracts is decentralized and operates through distributed nodes around the world without central servers, making it difficult to establish jurisdiction and governing laws. As an alternative to traditional dispute-solving methods, a new mediation model-smart arbitration-is being attempted. The arbitration process is likely to be a preferred means of resolving disputes over smart contracts in practice. There are many problems, such as the fairness of the arbitration center on the selection and judgment of arbitrators, the question of securing reliability, the question of the validity of the arbitration agreement, and how much the court can be involved in the case. Preparations at the national level, such as fostering blockchains and smart contract experts, and overhauling the legal system, are needed.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.113-138
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• 2020

Using the Alternative Dispute Resolution (ADR) system to resolve disputes, rather than going through lawsuits, is used widely all across the world. The mediation system in the ADR has many advantages. Mediation is an ancient Chinese original dispute settlement system. The Chinese government tries to insure mediation to settle the disputes in business activities. There has been a stark increase in disputes following economic development and, in order to solve this, the Supreme People's Court has placed mediation as a priority in civil suits. In particular, China intends to powerfully move forward by building a "Moderately Prosperous Society" and to eradicate poverty as this year's economic and social development goal. Solving disputes through mediation would, above all else, be effective and be appropriate to the national development's goals. China should also provide policies that are fair and do not damage equality while it operates the mediation system.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.185-198
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• 2020

In the event of a medical conflict in South Korea, civil lawsuits can be very complicated, time-consuming, and costly. Under the Medical Conflict Conciliation Act, the mediation system has expanded its function to coordinate disputes between individuals and medical institutions in a more efficient manner prior to litigation. Currently, conflict mediation organizations and legal systems are established in each sector, and the Healthcare Dispute Settlement Commission will also play an important role in the public sector. In this study, the characteristics of the evaluation system of the Korea Institute of Medical Conflict Arbitration are examined; and, by looking at the case of medical examinations, it is proposed to show the mediation system and the manner and role of the examinations. Medical expertise is a very important area of the qualitative standards and expertise of participants because the participants must play a role in medical consultation and appraisal in connection with medical experts.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.3-31
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• 2015

This paper sets out a multi-dimensional approach that parties drafting a "hybrid clause" for their arbitration agreement can adopt, for purposes of maximizing enforceability, taking into account the multi-jurisdictional interplay between the seat Court, the governing law and the enforcement Court(s), as well as mandatory rules that can be present in the lex arbitrii, the governing law, and/or the law of the enforcement for a. This paper draws on both the co-authors' practice experience, as well as first principles of party autonomy in light of mandatory rules, based predominantly on the scholarship of Briggs and Nygh.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.33-58
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• 2015

Arbitration clauses or institutional arbitration rules rarely, if ever, specify the law applicable to the arbitration agreement. A wide range of laws may thus govern this question, such as the law at the place of arbitration, the law where the agreement or the award is enforced or the law of the main contract between the parties. It is also conceivable that international uniform law or soft law may play a role. Tribunals and courts seized with this question must consequently decide which of these various laws shall apply to verify the existence and validity of the arbitration agreement. This paper picks up on this controversially debated conflict of laws issue. At times, this debate is characterized by a strong divide between arbitration and international trade law practitioners. But are the different approaches really leading to diverging results in arbitral practice?

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.135-154
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• 2015

The European Union has adopted the ADR Directive and ODR Regulation in 2013 with the purpose to strengthen the e-commerce within the EU. Not covered by these legislations is the trade in the B2B sector. The author examines the question of whether online ADR under the currently applicable legal framework would be possible in Germany. At the center of his review is the possibility of an arbitration clause which refers exclusively to an online ADR scheme, may be included in the General Terms and Conditions of an online trader.