• Journal of Arbitration Studies
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• v.26 no.3
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• pp.27-50
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• 2016

International arbitration as a dispute resolution mechanism in Asia is growing in popularity. Singapore has long been acknowledged as a regional arbitration center but Korea is now facing an increased demand as an arbitration center as well. As Singapore competes with Hong Kong and other international arbitration centers, and as Korea tries to become an alternative to Singapore, both Singapore and Korea have updated their arbitral laws and arbitration rules to reflect the current international arbitration trends. This paper examines the recent changes in the arbitration laws of Singapore and Korea, with an emphasis on recent changes in Korean arbitration laws that are designed to increase Korea's popularity as a regional arbitration center. Though Korea's reputation as an arbitration center is increasing, it is still not viewed as a major arbitration service provider. It is against this backdrop that Korea's international arbitration laws and rules will be viewed, with suggested changes to increase Korea's reputation as not only a regional hub but a center of international arbitration.

• Journal of Arbitration Studies
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• v.27 no.3
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• pp.53-76
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• 2017

Korean businesses, and their legal representatives, have observed the improvements of enforcement of commercial judgments through arbitration over traditional collections litigation in U.S. Courts-due to quicker proceedings, exceptional cost savings and more predictable outcomes-in attaching assets within U.S. jurisdictions. But how are the 2016 interim measures implemented by the Arbitration Act of Korea utilized to avoid jurisdictional and procedure pitfalls of enforcement proceedings in the Federal Courts of the United States? Authors examine the necessary prerequisites of the U.S. Federal Arbitration Act as adopted through the New York Convention, to which Korea and the U.S. are signatories, as distinguished from the Panama Convention. Five common U.S. arbitration institutions address U.S. "domestic" disputes, preempting U.S. state law arbitrations, while this article focuses on U.S. enforcement of "international" arbitration awards. Seeking U.S. recognition and enforcement of Korean arbitral awards necessitates avoiding common defenses involving due process, public policy or documentary formality challenges. Provisional and conservatory injunctive relief measures are explored. A variety of U.S. cases involving Korean litigants are examined to illustrate the legal challenges involving non?domestic arbitral awards, foreign arbitral awards and injunctive relief. Suggestions aimed toward further research are focused on typical Korean business needs such as motions to confirm foreign arbitration awards, enforce such awards or motions to compel arbitration.

• Journal of Arbitration Studies
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• v.16 no.3
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• pp.3-22
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• 2006

이 논문은 지난 10월 26일 및 27일 양일간에 걸쳐 서울의 Grand Intercontinental Hotel에서 개최된 국제중재학술대회 ICC/KCAB/KOCIA Conference에서 발표된 것으로 외국 변호사들의 이해를 돕기 위해 우리나라 중재법의 주요 내용을 설명하되, 특히 뉴욕협약과 국제상사중재에 관한 유엔모범법과 차이가 있는 부분을 주로 설명하였다. 이 논문은 우리나라 중재법이 규율하는 분야 중에서 그 적용범위, 중재적격, 통지의 서면성, 중재합의의 형식, 중간구제조치의 집행, 중재의 준거법 및 중재인의 선정 등에 관하여 설명하였다. 또한 이 논문은 우리나라가 일본, 중국 및 우리나라를 포함하는 동북아무역과 관련한 분쟁에서 중재의 중심지가 되어야 할 것을 역설하고, 이를 위해서 우리나라 유일의 중재기관인 대한상사중재원이 중재인 및 사무국 분야에서 개선이 필요함을 주장하였다.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.3-18
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• 2017

International legal reviews on ISD, a procedure for resolving disputes under the Korea-US FTA, are examined from the perspective of law. If the ISD system does not exist, even if the investor suffers damage due to the illegal act of the host country, he or she must file a lawsuit through the court of the host country, which is unreasonable from the investor's point of view and makes it difficult to guarantee fairness and transparency. Some of the Koreans pointed out that there are some problems with the KORUS FTA dispute settlement regulations, and that the United States federal courts are taking a friendly attitude to the decisions made by the US Customs in determining the dispute by the KORUS FTA Agreement and the US Customs Act. In cases where the State does not violate international law but results in harmful consequences, the responsibility of one country is borne by the treaty. Foreign investment always comes with many challenges and risks. Therefore, the ISD system is a fair and universal arbitration system, which is considered to be a necessary system even for protecting the Korean companies investing abroad. In the investment treaty, compensation for the nationalization of foreign property and reimbursement under the laws of the host country were dissatisfied with foreign investors. In particular, some Koreans have pointed out that there are some problems in the KORUS FTA dispute resolution regulations and there is a need for further discussion and research. Based on the experiences and wisdoms gained in the course of Korea-US FTA negotiations, the dispute arbitration mechanism is urgently needed to reduce the possibility of disputes and to make amicable directions.

• Journal of Arbitration Studies
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• v.20 no.2
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• pp.27-47
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• 2010

It is well recognized that the availability of prompt, effective and economical means of dispute resolution is an important element in the orderly growth and encouragement of international trade and investment. Increasingly, arbitration, instead of litigation in national courts, has become the preferred means of resolving private international commercial disputes. Under the situation, it will be important thing for arbitral institutions to reach an agreement to promote the dispute settlement of the commercial disputes, for which efforts have been made between the Korean Commercial Arbitral Board(KCAB) and principal arbitration institutions of the foreign countries. Since 1973, the KCAB has entered into many arbitration agreements with well-known foreign institutions of arbitration. If the place of arbitration is not so designated by the parties, it, as a general rule, shall be the country of the respondent(s) under the Korea-Japanese Arbitration Agreement. On the other hand, the U.S.-Korean Commercial Arbitration Agreement maintains 'Joint Arbitration Committee which finally decide the place of arbitration. In 1996, the Korea-Austria Agreement of Cooperation was concluded for the prompt and equitable settlement on an amicable basis of commercial disputes. Under this Agreement, arbitral institutions between Korea and Austria agreed to act as an appointing authority in accordance with the UNCITRAL Arbitration Rules. It is also very important for Korea and China including North Korea to cooperate each other for the settlement of the commercial disputes within the Pan Yellow Sea Economic Bloc(PYSEB). The PYSEB is quickly becoming a distinctive and crucial region in the world sharing geographical proximity, many common historical experiences, and similar cultural norms and values although they have disparities in stages of development, trade and economic policies, and financial and legal frameworks. Finally, it should be considered to establish a central common system for settlement promotion of the commercial disputes within the PYSEB through the arbitration agreement. Such a dispute resolution system was already introduced and established within the area of the NAFTA, and it is called the Commercial Arbitration and Mediation Center for the Americas(CAMCA).

• Journal of Arbitration Studies
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• v.32 no.4
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• pp.53-85
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• 2022

Small and medium-sized enterprises ("SMEs") are vulnerable to trade secret misappropriation. Korea's legislation for the protection of SMEs' trade secrets and provision of civil, criminal, and administrative remedies includes the SME Technology Protection Act, the Unfair Competition Prevention Act, the Industrial Technology Protection Act, the Mutually Beneficial Cooperation Act, and the Subcontracting Act. Among these acts, the revised SME Technology Protection Act of 2018 introduced the "administrative technology misappropriation investigation system" to facilitate a rapid resolution of SMEs' technology misappropriation disputes. On September 27, 2021, Korea's Ministry of SMEs announced that it had reached an agreement to resolve the dispute between Hyundai Heavy Industries and Samyeong Machinery through the administrative technology misappropriation investigation system. However, not until 3 years and a few months passed since the introduction of the system could it be used to resolve an SME's technology misappropriation dispute with a large corporation. So there arose a question on the usefulness of the system. Therefore, we conducted a comparative legal analysis of Korea's laws enacted to protect trade secrets of SMEs and to address technology misappropriation, focusing on their legislative purpose, protected subject matter, types of misappropriation, and legal remedies. Then we analyzed the administrative technology misappropriation investigation system and the cases where this system was applied. We developed a proposal to enhance the usefulness of the system. The expert interviews of 4 attorneys who are experienced in the management of the system to check the practical value of the proposal. Our analysis shows that the lack of compulsory investigation and criminal sanctions is the fundamental limitation of the system. We propose revising the SME Technology Protection Act to provide correction orders, criminal sanctions, and compulsory investigation. We also propose training professional workforces to conduct digital forensics, enabling terminated SMEs to utilize the system, and assuring independence and fairness of the mediation and arbitration of the technology misappropriation disputes.

• 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.

• Journal of Arbitration Studies
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• v.12 no.1
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• pp.271-321
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• 2002

Every year, many million of business transactions take place. Ocassionally, disagreements develop over these business transactions. Many of these disputes are resolved by mediation, arbitration and out-of-court settlement options. The American Arbitration Association(AAA) helps resolve a wide range of disputes through mediation, arbitration, elections and other out-of-court settlement procedures. The AAA offers a broad range of dispute resolution services to business executives, attorneys, individuals, trade associations, unions, management, consumers, families, communities, and all level of governments. The 198,491 cases composed of the 194,303 arbitration cases and the 4,188 mediation cases, were filed with the AAA in 2000. These case filings represent a full range of matters, including commercial finance, construction, labor and employment, environmental, health care, insurance, real state, securities, and technology disputes. The Korean Commercial Arbitration Board (KCAB) does more than render arbitration services. It helps facilitate settlements and guarantee implementation thereof between trading partners at home and abroad involving disputes related to such areas as the sale of commodities, construction, joint venture agreements, technical assistance, agency agreements, and maritime transport. The 643 cases composed of the the 197 arbitration cases and the 446 mediation cases, were filed with the KCAB in 2001. There are some differences between the AAA and the KCAB regarding the number and the area of mediation and arbitration case filings, the breath of service offerings, the scope of alternative dispute resolution, and the education and training. In order to apply to the proceedings of the commercial mediation and arbitration, the AAA has the Commercial Mediation Rules, the Commercial Arbitration Rules, the Expedited Procedures, the Optional Procedures for Large, Complex Commerical Dispute, and the Optional Rules for Emergency Measures of Protection as amended and effective on September 1, 2000. In order to apply to the proceedings of commercial arbitration, the KCAB has the Arbitration Rules as amended by the Supreme Court on April 27, 2000, which have been changed to incorporate the revisions of the Arbitration Act that went into effect on December 31, 1999. There are some differences between the AAA's commercial Arbitration Rules and the KCAB's Arbitration Rules regarding the clauses of jurisdiction and administrative conference, number of arbitrators, communication with arbitrator, vacancies, preliminary hearing, exchange of information, oaths, evidence by affidavit and posthearing filing of documents or others, interim measures, serving of notice, form of award, scope of award, delivery of award to parties, modification of award, release of liability, administrative fees, neutral arbitrator's compensation, and expedited procedures. In conclusion, for the vitalization of KCAB and its ADR system, the following measures should be taken : the effective case management, the development of on0-line ADR, the establishment of ADR system of electronic commerce disputes, and the variety of dispute resolution rules in each expert field.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.83-105
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• 2017

In contemporary society interest in and consumption of beauty treatment are increasing, raising interest in health and beauty. However, beauty-related laws are becoming factors of hindrance of beauty development. Currently the Public Health Control Act plays a basic role in the beauty art business in Korea, However the contents are in discord with international laws and its definition is not clear. Therefore it is causing conflicts of different occupations and job associations which are similar to art business. Especially, because neither definitions nor policies on beauty care devices exist in the Public Health Control Act, beauty care devices using in foreign countries cannot be used in Korea due to classification as medical devices. Under this circumstance, therefore, beauty care device uses by beauty artists violate the law. The government has tried to solve these irrational regulations. Recently, the Small and Medium Business Administration announced 'the improvement plan of small business and young founders site regulation for public economy recovery' in a ministerial meeting on December 28, 2016. Regulations on policy preparation for skincare devices were inclusive in this announcement. It is the question whether the regulations will be executed or not. Even though beauty industrial competitiveness was presented in the 18th Presidential Council on National Competitiveness in 2009, it was not practiced. The proposal bills for beauty law improvement have been put forth several times since 2000 including an improvement plan for regulating beauty care devices. However, so far there have been no improvements. The damage on the regulation classifying beauty devices as medical devices is not only restricted to skincare. This develops beauty devices and the beauty industry which imports and exports beauty devices. When beauty devices are exported, complicated procedures are unavoidable and when beauty devices are imported, irrational problems like reregistration procedures and costs occur. The reason why an improvement plan has not gone into practice is the resistance of the dermatologists' association. Dermatologists tend to stand positively against harming public health by saying that beauty devices used by beauty artists cause people to suffer side effects. In contrast, anyone who has a licence to use beauty devices is able to use them in foreign countries. It is not only infringement of one's right as a beauty artist but also people's right to receive beauty care services. With this reason, Korean's current law under which beauty devices are ruled as medical devices should be revised with accordance to domestic surroundings. Therefore in order to advance and globalize the beauty industry, the support and cooperation of the Korean government and relevant associations is needed to legislate and revise the beauty devices laws. The relevant associations abandon regional self-centeredness and cooperate to define ranges, size and management of beauty devices for safe use. If no collaboration exists, an arbitration agency should be established to solve the problem.