• Journal of Arbitration Studies
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• v.16 no.1
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• pp.121-151
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• 2006

As globalisation extends its effect and particularly following China's accession to the World Trade Organization(WTO) in 2001, ever greater numbers of international transactions will feature a Chinese party. China has certainly made efforts in recent years to rectify law problem. While conducting business in China, foreign companies occasionally find themselves embroiled in disputes with Chinese individuals and companies. As foreign businesses invest in the extraordinary market opportunities in China, international arbitration has also become the preferred method for handling disputes with Chinese partners or with other foreign corporation over operations in China. The new Arbitration Rules of the International Economic and Trade Arbitration Commission(CIETAC) came into force on 1 May 2005. The new rules represent a major overhaul of CIETAC arbitration procedures and are sure to enhance CIETAC's position as a leading player in the resolution of China-foreign business disputes. The changes are significant for all companies doing business in China. So, this article investigated some amendments on the basis of 2000 Rules.

• International Commerce and Information Review
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• v.16 no.5
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• pp.67-86
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• 2014

The commercial arbitration is considered an effective and rapid means in solving problems and finding solutions for disputes between the business partners. For the development of commercial arbitration, there is a need to study arbitration in practice as well as in theory. This paper analyse the situation of commercial arbitration system in Pakistan both with respect to domestic laws and international laws applicable in Pakistan. The Arbitration Bill 2009 aims to consolidate law relating domestic arbitration, international commercial arbitration, recognition and enforcement of foreign arbitral awards as well as settlement of international investment disputes. Pakistan while defending investment claims and in order to restore investor's confidence, in 2011, Pakistan introduced a law to secure foreign investments. This study explains the relationship of old and new Pakistani arbitration laws and elaborates the changes brought about by the new enactments and gives a comprehensive analysis of Pakistani arbitration laws, rules and procedures dealing with arbitration agreements and awards. In the absence of relevant trade information in Pakistan, this paper is designed to meet the needs of a Korean international trade scholars to obtain an understanding of Pakistani commercial arbitration system quickly.

• Journal of Arbitration Studies
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• v.16 no.1
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• pp.45-80
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• 2006

The purpose of this paper is to make research on the method of arbitration agreement, the adoption and contents of the Convention on the Use of Electronic Communications in International Contracts, and the standpoint and problem with reference to the new Convention's application to the method of arbitration agreement in New York Convention. Last year the UN General Assembly and UNCITRAL adopted a new Convention on the Use of Electronic Communications in International Contracts that makes agreements by electronic communications enforceable, including arbitration agreements under the Convention on the Recognition and Enforcement of Foreign Arbitral A wards (New York Convention). Aimed at enhancing legal certainty and commercial predictability where electronic communications are used in relation to international contracts, the provisions of the Convention deal with, among other things, determining a party's location in an electronic environment; the time and place of dispatch and receipt of electronic communications; and the use of automated message systems for contract formation. Under the New York Convention, arbitration agreements in international contracts must be reduced to writing before they can be enforced. But under the new Convention, an arbitration agreement made entirely in electronic form would be enforceable. The working group expressed overall support in favor of the inclusion of a reference to the New York Convention in the new Convention. However, one proposal was that the exclusions provided under article 2 of the new Convention might be too broadly worded to adequately accommodate the New York Convention. In conclusion, Korea's government authorities should take prompt measures to sign and ratify the new Convention, and declare on the scope of its application. Also Korea's arbitration institute should make preparation for the amendment of the arbitration act and arbitration rules in accordance with the new Convention.

• Journal of Arbitration Studies
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• v.33 no.3
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• pp.3-30
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• 2023

This article provides an overview of the state of attorney-client related privilege and confidentiality in Korea. It reviews the statutory framework, and how Korean courts have analyzed the privilege and confidentiality related to attorneys and their clients. It then examines the legislative initiatives Korea is currently debating with regard to adopting a more common law-style attorney-client privilege (ACP). If adopted, the new legislation will mark a significant milestone in providing guidance on how communications between attorney and client will be treated. Its impact in the context of international arbitration practice and law related to Korea is explored.

• Journal of Arbitration Studies
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• v.23 no.1
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• pp.55-84
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• 2013

There should be an arbitration agreement between concerned parties in order to resolve a dispute through arbitration. The arbitration procedures, including the selection of the arbitrator and the adjudicative rights of the arbitrator, are based on the arbitration agreement. In other words, the arbitration procedure and adjudication can be carried out within the boundaries of the arbitration agreement. Traditionally, the Doctrine of Separability of the arbitration agreement has been acknowledged in order to emphasize its importance and to clearly separate it from the contract. Today, when the Doctrine of Separability of the arbitration agreement is well established, overemphasizing this separability could hamper its effectiveness and the autonomy of the parties. Moreover, arbitration agreements in the past were required to be written, clarifying the existence of the agreement and determining the scope of its validity. Further, an arbitration agreement was considered as narrowly as possible. However, since arbitration has become a generalized resolution for disputes, the formal or content requirements should be reconsidered. In terms of validity, the subjective and objective scope should necessarily be extended as a means to resolve disputes related to an arbitration agreement and reduce the resolution cost and duration. Under this perspective, the arbitration theory should now focus on arbitration agreements rather than the place of arbitration. We should break from the nationalistic view, which understands that the arbitration system is a part of the national legal system and that arbitration is allowed solely by permission of the nation. Instead, we should extensively reinterpret the subject of arbitration agreement and its range of effects so that disputes can be resolved between the concerned parties under a single procedure and norm, a necessary step forward. Moreover, in spite of the positive contribution and role of the New York Convention toward the establishment and development of the international arbitration system, there should be an effort to overcome its deterioration. As mentioned in the recommendations regarding the interpretation of the arbitration agreement in the New York Convention in 2006, we should begin by striving to match the Convention as a means of interpretation with the changes of the twenty-first century. Ultimately, we should meet the demands of the new era through amendments to the Convention.

• Journal of Arbitration Studies
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• v.33 no.2
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• pp.3-21
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• 2023

Chinese law does not directly stipulate the criteria for determining the nationality of arbitral awards, and the Civil Procedure Law stipulates that arbitral awards are divided into domestic arbitral awards and foreign arbitral awards based on the location of the arbitration institution managing the arbitration cases. This indirectly classifies the nationality of the arbitral award based on the location of the arbitral institution. However, with regard to the nationality of eight arbitral awards in this paper made in China by the foreign arbitration institutions, the Chinese courts determined the nationality by arbitrarily selecting the criteria for the location of the arbitration institution and the criteria for the place of arbitration, except for arbitral awards made in Hong Kong. China's unclear attitude toward the criteria for determining the nationality of arbitral award has resulted not only obscures the country that can exercise the right to revoke arbitral award, but also obscures the laws and regulations applied to the approval and execution of arbitral awards. In other words, since the right to revoke the arbitral awards resides with the country of nationality of the awards, such an ambiguous attitude in China prevents the parties from responding to the cancellation lawsuit by predicting the nationality of the arbitral awards in advance. Furthermore, since China made a declaration of reciprocity reservations while joining the New York Convention, in cases where the criteria for location of the arbitral institution is applied, if the arbitration institution belongs to a contracting state, the it must apply the New York Convention to approve and execute arbitration decisions, but if it is not a contracting state, it must be approved and executed by mutual arbitration agreements or reciprocity principles. These results can lead to different results in approval and execution of the same arbitral awards depending on how the nationality is determined.

• Journal of Arbitration Studies
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• v.24 no.3
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• pp.79-103
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• 2014

In light of increasing international trade in recent years, international arbitration has been more widely used by international parties to resolve their conflicts. Thus, the need for reliable and effective enforcement of foreign arbitral awards has amplified. To facilitate the enforcement of foreign arbitral awards, the New York Convention lists grounds for the refusal of recognition and enforcement in Article V. This paper examines prominent U.S. case law on Article V(1)(b), which is put in place to ensure that arbitration proceedings are conducted properly in accordance with due process requirements: proper notice to parties and an opportunity to a fundamentally fair hearing. This examination of case law conveys that U.S. courts refuse to enforce foreign arbitral awards pursuant to Article V(1)(b) only when due process rights of the party against whom the award is to be enforced are clearly violated by the arbitral tribunal. This paper also reveals that U.S. courts mainly defer to arbitral tribunals' discretion, especially as to evidentiary matters. Therefore, it is predicted that U.S. courts will likely continue to narrowly construe the grounds in Article V to facilitate reliable and effective enforcement of foreign arbitral awards in the U.S.

• Journal of Arbitration Studies
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• v.20 no.3
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• pp.3-24
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• 2010

In the approaching 21th century, the outstanding development in international trade and commerce has established arbitration as the preferred form of dispute resolution on international business transaction. Because the form of commercial dispute becomes more complicated and varied with the quantitative increase of them, the reasonable and rapid settlement of them must be the important problem simultaneously. In this article, the author discusses various issues on the recognition and enforcement of an foreign arbitral awards under Korean Arbitration Act, which is modeled after the Model Law on International Commercial Arbitration of the UNCITRAL of 1985. The Dec. 31, 1999 amendment to the Korean Arbitration Act admits the basis for enforcement of foreign arbitral awards rendered under United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958(commonly known as the New York Convention). Korea has acceded to the New York Convention since 1973. When acceding to the convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of anther Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provision relating to the enforcement of arbitral awards falling under the New York Convention consists of Article III, IV, V. In particular, Article V of the New York Convention enumerates the grounds for refusal of recognition foreign arbitral awards. The grounds are separated into two categories : One that abides by procedures and the others are based on national legal sovereignty. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of awards. Because Korea requires enforcement to be based on a judgement, the result is that arbitral of award holders are forced to institute domestic litigation.

• Journal of Arbitration Studies
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• v.16 no.3
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• pp.53-89
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• 2006

At its thirty-second session(Vienna, 17 May-4 June 1999), the UNCITRAL decided that the priority items for the Working Group(Arbitration and Conciliation) should include enforceability of interim measures and the requirement of written (on for the arbitration agreement. The Working Group, at its forty-third session(Vienna, 3-7 October 2005), it had undertaken a detailed review of the text of the revised article 17 of UNCTTRAL Model Law on International Commercial Arbitration, and it had resumed discussions on a draft model legislative provision revising article 7, paragraph (2) of UNCITRAL Model Law. The purpose of this paper is to make research on the contents and issues of the draft legislative provisions on interim measures and preliminary orders, and on the form of arbitration agreement which the Working Group discussed and adopted at its forth-fourth session(New York, 23-27 January 2006). The draft legislative provisions on interim measures and preliminary orders are composed of the following provisions : Article 17-power of arbitral tribunal to order interim measures; article 17 bis-conditions for granting interim measures; article 17 ter-applications for preliminary orders and conditions for granting preliminary orders; article 17 quater-specific regime for preliminary orders; article 17 quinquies- modification, suspension, termination; article 17 sexies-provision of security; article 17 septies-disclosure; article 17 octies-costs and damages; article 17 novies recognition and enforcements; article 17 decies-grounds for refusing recognition or enforcement; article 17 undecies-court-ordered interim measures. There are the following issues in the draft legislative provisions on interim measures and preliminary orders : form of issuance of an interim measures in article 17(2); conditions for granting interim measures in article 17 bis; purpose, function and legal regime of preliminary orders in article 17 ter; obligation of arbitral tribunal to give notice, and non-enforceability of preliminary orders in article 17 quater; burden of proof, interplay between article 17 decies and article 34, and decision on the recognition and enforcement of the interim measures in article 17 decies; placement of article 17 undecies; amendment of scope exception of application in article 1(2). The draft legislative provisions on the form of arbitration agreement are composed of the following provisions : article 7(1) definition of arbitration agreement; article 7(2) arbitration agreement in writing; article 7(3) arbitration agreement if its terms(content) are (is) recorded in any form; article 7(4) arbitration agreement by an electronic communication; article 7(5) arbitration agreement in an exchange of statements of claim and defence; article 7(6) reference to any document containing an arbitration clause. There are the following issues in the draft legislative provisions on the form of arbitration agreement : arbitration agreement in writing in article 7(2); terms or contents of arbitration agreement in article 7(3); arbitration agreement by electronic communication in article 7(4); existence of arbitration agreement in article 7(5); reference to any document containing an arbitration clause in article 7(6); the alternative proposal on article 7; amendment to article 35(2).

• Journal of Arbitration Studies
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• v.11 no.1
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• pp.181-215
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• 2001

The thirty-fourth session of UNCITRAL Working Group on Arbitration was held in New York. Among the topics discussed at the session, many delegations agreed to reform the article 7 of the UNCITRAL Model Law on International Commercial Arbitration in light of the development of electronic commerce. As for the article 2(2) of the New York Convention, it was agreed to reflect the changes of the article 7 not in the form of a treaty amendment but in the form of an interpretative statement. The topic as to provisional measures has been found so difficult to reach an agreement that most of its texts submitted by the secretariat were left untouched for the lack of time. However, most provisions of the legislative texts on conciliation were dealt with by delegations. The next session is to be held in Vienna. While the Korean Arbitration Act of 1966 was fully amended in 1999, it seems interesting to look at the development in which the arbitration community of the world has already begun discussing the new dimension of the law and practice of international commercial arbitration. It may be considered early to start a new project of reforming the Korean Arbitration Act at this time when only three years passed after it was fully amended. It is, however, worthwhile to remember that some progressive efforts were aborted in amending the Arbitration Act of 1966. One of them is about the same issue on the insertion of some provisions on the enforcement of interim measures of protection to which the priority is given by the Working Group. It seems fair to say that it would not be dangerous to follow the developments and to adapt ourselves to such trends shown in the session. In Korea, the words “arbitration” and “conciliation” are misleadingly interchanged although these two words should be differentiated from each other in the sense of third-party binding decision. It is self-evident from the Korean Arbitration Act and judicial decisions that arbitral awards bind the disputing parties and are to be treated as final judgements by the competent courts. It is, however, not uncommon to find that the word “arbitration” is misinterpreted as having the same meaning of the word “conciliation”. One of the reasons for the confusion is that many legislations in Korea provide for conciliation as having the meaning of arbitration and vice versa. It may be probable that the proposed legislative texts on conciliation could be a kind of useful method to prevent such confusion from being uncontrollable. It is, therefore, necessary that the legislative texts should be introduced into Korea as a legislation on conciliation.