• Journal of Arbitration Studies
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• v.22 no.1
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• pp.89-110
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• 2012

No-fault automobile insurance system is a statutory scheme to provide automobile accident victims with compensation for certain expenses arising from personal injuries occurring in car accidents. New York State has enacted No-Fault Law to ensure that the injured in automobile accidents be paid rapidly by their own insurance company for medical expenses, lost earnings regardless of fault, replacing common law system of reparation for personal injuries under tort law. Its primary purpose is to facilitate compensation without the need to exhaust time-consuming litigation over establishing the existence of fault and the extent of damages. No-Fault Law allows arbitration as a method for settling the no-fault insurance disputes. No-fault arbitration, however, differs in a significant way from general arbitration system. First, No-Fault Law provides the parties with the option to submit any dispute involving no-fault automobile insurance to arbitration. Second, no-fault arbitration attempts to speed its procedure incorporating various methods. Third, the parties are required to seek review of arbitral awards by master arbitrator prior to seeking court's review. Fourth, the parties have right to bring de novo action in court if master arbitrator's award exceeds $5,000. Given the current state of law in Korea, it may not be easy to introduce no-fault arbitration system into Korea in the context of automobile insurance disputes settlement as its law has a long-established reparation system based on tort liability and no-fault arbitration system has its own features that differ from general arbitration system. Nonetheless, it could be suggested that no-fault arbitration be introduced in other fields which require speedy dispute resolution and a third party's decision to settle the disputes. The optional right of submitting disputes to arbitration as provided by No-Fault Law of New York State may offer a ground to supprot the effectiveness of an optional arbitration agreement.

• Journal of Arbitration Studies
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• v.30 no.3
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• pp.47-66
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• 2020

Due to the division of China's departmental laws, the disconnect between theory and practice, and the influence of traditional academic thinking on the understanding of the knowledge structure of arbitration legal talents in practice, the construction of law school colleges, teaching teams, and research centers mostly revolves around departmental laws, tearing the connection of the arbitration legal system. The student-centered, process-guaranteed, and result-oriented arbitration master of law training model is "virtualized," the shaping of arbitration professionalism is ignored, the coverage of practical teaching is narrowed, and the arbitration legal profession is mostly formalized. The prevalence of specialized curriculum systems shortage, single faculty, formalized practical teaching, outdated curriculum settings, unsuitable curriculum system design for development, and inaccurate professional curriculum standards and positioning renders it difficult to integrate the "Belt and Road." The cutting-edge, the latest research results, and practical experience cannot reflect the connotation, goals, and requirements of "Entrepreneurship" education, as well as arbitral issues such as the ineffective monitoring of practical education and the inconsistent evaluation of standards and scales. Under the background of the "Belt and Road," based on system theory and practice and through training goals that innovate and initiate organizational form, activity content, management characteristics, assessment and support conditions, etc., the arbitration law teaching curriculum system is gradually improved and integrated. Through the establishment of a "Belt and Road" arbitration case file database and other measures, a complete arbitration law theory and practice teaching guarantee system has been established. Third parties are introduced, arbitration law experimental modules are developed, students are guided how to discover new knowledge, new contents are mastered, solidarity, cooperation, and problem-solving capabilities are cultivated in the practice of the "Belt and Road," and quality education, vocational education, and innovation education are organically integrated. In order to implement the requirements of arbitration law education, innovation development and collaborative management of arbitration law teaching practice base should be cultivated, thus giving full play to the effect of collaborative education between universities and arbitration institutions.

• Journal of Arbitration Studies
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• v.9 no.1
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• pp.183-232
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• 1999

The legislative body of The People's Republic of China, the National People's Congress, enacted the first arbitration act in China's history on August 31st, 1994, which took effect on September 1, 1995. The problems revealed through a comparison of China's Arbitration Act with the UNCITRAL model arbitration law were studied as well as the enacting process, background, status and system, important contents, problems of Chaina's Arbitration Act, and the differences between the old arbitration regulations and the new arbitration act. These are all discussed in this paper. The Arbitration Act is the basic act ruling over china's arbitration system: it unified the previously confusing laws and regulations relevant to the arbitration system, and the act brings out fundamental changes in China's domestic arbitration to the level of international arbitration standards. It is possible to view this act as a cornerstone in China's arbitration system. But, as discussed in this paper, there are still a lot of problems with the new act and only a few of the merits which the UNCITRAL model arbitration law has. First, under China's Arbitration Act, parties enjoy autonomy to some degree, but the range of party autonomy, compared to that of the UNCITRAL model arbitration law, is too narrow. Second, because China's Arbitration Act didn't explicitly provide issues which can give rise to debate, a degree of confusion in its interpretation still remains. Third, China's Arbitration Act's treatment of some important principles was careless. Fourth, in some sections, China's Arbitration Act is less reasonable than the UNCITRAL model arbitration law. These problems must be resolved in order to develop China's arbitration system. The best way of resolving these problems for China is to adopt the UNCITRAL model arbitration law. But it is difficult to expect that China will accept this approach, because of the present arbitration circumstances in China. Although it is difficult to accept all the contents of the UNCITRAL model arbitration law, China's legislators and practitioners must consider the problems mentioned in this paper.

• Journal of Arbitration Studies
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• v.19 no.2
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• pp.197-227
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• 2009

This study describe the brief history and current statutes of Philippine arbitration. The practice of arbitration in the Philippines can be traced as far back as the barangay. From 1521, Spanish Civil Code became effective in the Philippines. During this period, the Supreme court was discouraged by the tendency of some courts to nullify arbitration clauses on the ground that the clauses ousted the judiciary of its jurisdiction. According to the growing need for a law regulating arbitration in general was acknowledged when Republic Act No.876(1953), otherwise known as the Arbitration Law, was passed. In 1958, the Philippines became a signatory to the New York Convention and in 1967 the said Convention was ratified. But no legislation has been passed. As a consequence, foreign arbitral awards have sometimes been deemed only presumptively valid, rather than conclusively valid. Fifty years after, the Philippine Congress enacted, Republic Act No. 9285, otherwise know as the Alternative Dispute Resolution Act of 2004. The enactment was the Philippines solution to making arbitration an efficient and effective method specially for international arbitration. To keep pace with the developments in international trade, ADR Act of 2004 also ensured that international commercial arbitration would be governed by the UNCITRAL Model Law on International Arbitration and also fortified the use and purpose of the New York Convention by specifically mandating. If the international commercial arbitration will be revitalization in the near future in the Philippine, it will be shown that the model law's comprehensive provisions will give the beat framework for arbitration.. The writer expect that Philippines continues in its effort to be the premier site for international arbitration in Southeast Asia.

• Journal of Arbitration Studies
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• v.24 no.3
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• pp.125-169
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• 2014

In France, arbitration, both domestic and international, has recently been subjected to a major reform. This article discusses the content of the 2011 reform and its aftermath, while putting into perspective the current arbitration act in South Korea, an arbitration-friendly jurisdiction that contemplates reforming its own law. The two legal systems are characterized by their concern for efficiency and rationalization of the arbitration proceedings, through the codification of essential principles previously established by case law and through the promotion of the independence of this ADR vis-$\grave{a}$-vis state courts. The efficiency consideration is strengthened at every stage of the proceedings: from the arbitration agreement often considered valid and rarely challenged, through the proceedings for annulment, recognition and enforcement of the award, up to the judicial assistance of the French supporting judge towards the actual arbitral proceedings. Finally, new concerns are emerging: the increase of transparency and the arbitrability of disputes in some uncertain fields of law.

• Journal of Arbitration Studies
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• v.32 no.2
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• pp.55-83
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• 2022

The United Nations Convention on International Settlement Agreements Resulting from Mediation (Singapore Mediation Convention) results in new challenges to the area of international dispute resolution by providing the enforcement regime for mediated settlement agreements, which have not been admitted as enforceable in some civil law countries, including Korea and Japan. Japan has struggled to promote international arbitration and international mediation, and such efforts were accelerated by the adoption of the Singapore Mediation Convention in 2018. In order to standardize arbitration proceedings and promote the practice of international arbitration, Japan produced two noticeable results: the new JCAA Arbitration Rules and the amendment to the Arbitration Act of Japan. In addition to that Expedited arbitration procedure and Interactive Arbitration Rules of JCAA present the new possibility of international arbitration procedure for civil law practitioners, the amendment to the Arbitration Act of Japan suggests significant implications to Korea for its manifest provisions regarding enforcement requirements and proceedings and its protection of Access to Justice for foreign law practitioners.

• Journal of Arbitration Studies
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• v.7 no.1
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• pp.33-54
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• 1997

• Journal of Arbitration Studies
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• v.23 no.3
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• pp.1-23
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• 2013

Form requirements particularly for arbitration clauses are widely perceived as an obstacle for efficiently resolving disputes on an international level. The paper discusses the recent suggestion that the freedom of form principle under Art. 11 CISG extended to arbitration, forum selection, or choice of law clauses in international sales contracts and thus superseded any and all formal requirements in this regard. After analysing national and international form requirements with regard to said clauses, the authors elaborate that while dispute clauses are indeed encompassed by the CISG's scope of application, freedom of form under the CISG was neither intended to nor should it apply to dispute clauses. This result is further confirmed by the interplay of the CISG with other international conventions, first and foremost the 1958 New York Convention, as well as a careful analysis of the so called most-favourable-law-approach.

• Journal of Arbitration Studies
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• v.27 no.3
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• pp.33-52
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• 2017

This article tried to describe the laws concerning the enforcement of foreign arbitration awards in Indonesia. This issue is relevant in the light of frequent curiosity of foreign commentators, business communities, practicing lawyers, concerning the arbitration in Indonesia, in particular its enforcement of foreign arbitration awards. The main laws on arbitration analyzed were, firstly, the Indonesian law on arbitration, namely Law No 30 of 1999 on Arbitration and Alternative Dispute Resolution and the Presidential Regulation No 34 of 1981 concerning the Ratification of the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. The provisions of Law of 1999 analyzed were confined to its international provisions on arbitration, in particular the requirements for the enforcement of foreign arbitration awards and also the requirement that the awards do not violate Indonesian public policy. The problem with the Indonesian arbitration law (and the courts' practice) were that no provisions which provided guidance or meaning with regard to public policy. The absence or lack of guidance or definition on public policy had some times confused lawyers or the parties in dispute fearing that their arbitration awards would not be enforced due to the violation of public policy. Secondly was the different opinion of two Indonesian arbitration experts, Prof. Sudargo Gautama and Prof. Priyatna Abdurrasyid. Both scholars had rather different opinions with regard to the meaning of public policy in Indonesia. Thirdly was a recent case law, Astro Nusantara Bv et.al., vs PT Ayunda Primamitra Case (2010) decided by the Indonesian Supreme Court with regard to the enforcement of foreign arbitration awards. This article concluded that the Indonesian court, in particular the Central of Jakarta Court, so far have given its support that the execution of foreign awards was duly enforced.

• Journal of Arbitration Studies
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• v.12 no.2
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• pp.263-302
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• 2003

Since new Korean arbitration law was modeledafter UNCITRAL Model Law on International Commercial Arbitration Law, the judicial review on the arbitral award is at most limited to fundamental procedural justice. Thus, drafting valid arbitration clause is paramount important to enforce arbitral awards in the new legal environment. A losing party in arbitral process would often claim of the invalidity of arbitration agreement to challenge the arbitral award. Especially, the validity of arbitration clause in the construction contracts is often challenged in Korean courts. This is because the construction contracts usually include selective arbitration agreement in multi-tiered dispute resolution clause that is drafted ambiguous or uncertain. In this paper selective arbitration agreement means a clause in a contract that provides that party may choose arbitration or litigation to resolve disputes arising out of the concerned contract. On the hand multi-tiered dispute resolution clause means a clause in a contract that provides for distinct stages such as negotiation, mediation or arbitration. However, Korean courts are not in the same position on the validity of selective arbitration agreementin multi-tiered dispute resolution clause. Some courts in first instance recognized its validity on the ground that parties still intend to arbitrate in the contract despite the poor drafted arbitration clause. Other courts reject its validity on the ground that parties did not intend to resort to arbitration only with giving up their right to sue at courts to resolve their disputes by choosing selective arbitration agreement. Several cases are recently on pending at the Supreme Courts, which decision is expected to yield the court's position in uniform way. Having reviewed recent Korean courts' decisions on validity and applicability of arbitration agreement, this article suggests that courts are generally in favor of arbitration system It is also found that some courts' decisions narrowly interpreted the concerned stipulations in arbitration law despite they are in favorable position to the arbitration itself. However, most courts in major countries broadly interpret arbitration clause in favor of validity of selective arbitration agreement even if the arbitration clause is poorly drafted but parties are presume to intend to arbitrate. In conclusion it is desirable that selective arbitration agreement should be interpreted favorable to the validity of arbitration agreement. It is time for Korean courts to resolve this issue in the spirit of UNCITRAL model arbitration law which the new Korean arbitration law is based on.