• 한국중재학회지:중재연구
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• 제30권2호
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• pp.3-21
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• 2020

This study focuses on the binding power of the interim measures of the arbitral tribunal in ICSID arbitration and the effects of non-compliance. Upon consideration of the intentions of those who made these rules, given the interpretation of the provisions of Article 47 of the ICSID Convention and Article 39 of the ICSID Arbitration Rules, it was found reasonable to consider that the interim measures made by the arbitral tribunal in ICSID arbitration were not binding. However, in actual ICSID arbitration, most arbitral tribunals approve the binding power of the interim measures based on the purposes and the characteristics of the interim measures. As such, there is a certain distance between the legislative intention for interim measures in ICSID arbitration and the judicial practice, but considering the demand for maintaining the integrity of the arbitration procedure, it is reasonable to consider that the interim measures are binding. In addition, the fact that the interim measures have binding power can increase the possibility that the party will comply with the interim measures. Thus, the binding power of interim measures not only encourages voluntary compliance to the interim measures of the party, but can also cause negative consequences for the party if it is not met. In other words, the arbitral tribunal will be able to form negative inferences against the party who does not comply with it in a procedural side, and in the practical side, the party who does not comply with the interim measures will be compensated for the additional damages for non-compliance.

• 한국중재학회지:중재연구
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• 제17권3호
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• pp.101-119
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• 2007

Arbitration is contractual by nature. One cannot be required to submit to arbitration any dispute which he has not agreed to so submit. As commercial transactions become increasingly complex, involving multiple parties and numerous contracts for a single transaction, however, limiting the parties who are subject to arbitration to only those who have signed a contract containing an arbitration clause would frustrate the purpose of such arbitration clause and might lead to injustice among the relevant parties. Therefore, U.S. courts have recognized a number of theories under which non-signatories may be bound to the arbitration agreement of others: (1) incorporation by reference; (2) assumption; (3) agency; (4) veil-piercing/alter ego; and (5) estoppel. Incorporation by reference and veil-piercing theories have already been recognized by Korean courts. Agency theory and estoppel theory are not recognizable under Korean law. However, the same or similar result may be achieved by applying the third party beneficiary theory or assumption by third party theory. Although a couple of Supreme Court cases appear to be at odds with the assumption theory, on the basis of the recent amendments to the Arbitration Act, such court precedents can be and should be reversed.

• 한국중재학회지:중재연구
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• 제29권1호
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• pp.3-29
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• 2019

A franchise business is a business in which the owners, or "franchisors," sell the rights to their business logo, name, and model to third party retail outlets, owned by independent, third party operators, called "franchisees." There are a number of features in franchising or terms in franchise agreements that may lead to disputes between franchisors and franchisees. These disputes may arise because of underlying risks in the franchise relationship, franchise agreement, or conduct of the parties. In this case, ADR is an effective way to resolve disputes in a quicker and often less costly way than having to go to court. If an agreement cannot be reached through mediation, then arbitration becomes the next step to resolving the differences. Whereas mediation is non-binding and focused on facilitating the parties to find a resolution that is acceptable to both, arbitration is binding and may result in a decision that is not acceptable to one of the parties. These situations can be resolved through experienced arbitration as arbitration allows franchisees to settle matters promptly and outside of the public eye. In addition, franchise dispute arbitration is usually less costly than going to traditional court. Considering all of these, reaching an agreement will also have typical clauses that address the issue of dispute resolution. It is again a more efficient process than going through the legal process and courts and is often less costly. By going through arbitration, the parties agree to give up their rights to pursue the dispute in the courts. However, there is a problem that the arbitration prior to the agreement and under the terms would be contrary to the restriction of jurisdiction under the "ACT ON THE REGULATION OF TERMS AND CONDITIONS" in Korea.

• 한국중재학회지:중재연구
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• 제13권2호
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• pp.519-546
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• 2004

On June 27, 2002 Canadian Internet Registration Authority (CIRA) launched dot-ca domain name dispute resolution service through BCICAC and Resolution Canada, Inc. The Domain name Dispute Resolution Policy (CDRP) of CIRA is basically modelled after Uniform Domain Name Dispute Resolution Policy(UDRP), while the substance of CDRP is slightly modified to meet the need of Canadian domain name regime and its legal system. Firstly, this article examined CIRA's domain name dispute resolution policy in general. It is obvious that the domain name dispute resolution proceeding is non-binding arbitration to which arbitration law does not apply. However it still belongs to the arbitration and far from the usual mediation process. Domain name arbitrators render decision rather than assist disputing parties themselves reach to agreement. In this respect the domain name arbitration is similar to arbitration or litigation rather than mediation. Secondly it explored how the panels applied the substantive standards in domain name arbitration. There is some criticism that panelists interprets the test of "confusingly similar" in conflicting manner. As a result critics assert that courts' judicial review is necessary to reduce the conflicting interpretation on the test of substantive standards stipulated in paragraph 3 of CDRP. Finally, it analysed the court's position on domain name arbitral award. Canadian courts do not seem to establish a explicit standard for judicial review over it yet. However, in Black v. Molson case Ontario Superior Court applied the UDRP rules in examining the WIPO panel's decision, while US courts often apply domestic patent law and ACPA(Anticyber -squatting Consumer's Protection Act) to review domain name arbitration decision rather than UDRP rules. In conclusion this article suggests that courts should restrict their judicial review on domain name administrative panel's decision at best. This will lead to facilitating the use of ADR in domain name dispute resolution and reducing the burden of courts' dockets.

• 무역상무연구
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• 제57권
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• pp.79-108
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• 2013

International transactions of plant and construction project need to time to time for completing the contract. During the performing the contract there may arise many claims and disputes it should be settled rapidly for processing schedule of works. However, arbitration and litigation for settlement of dispute are inappropriate in time and expense under the specifications of plant and construction project. Dispute boards are one of the successful resolution method of dispute prior to litigation or arbitration. If the dispute board was failed, of course, it may be allowed to continue into litigation or arbitration. As the creative methods of parties agreement, dispute boards may be expected to avoid claims and dispute in long and medium international contract. The purpose of this paper is to explore the specification and limitations of dispute boards that may clear disputes under long and medium contract of construction and procurement. It needs to be understand to determine whether is the useful methods for resolving dispute in the international project. This paper considers the specific natures of dispute board and its rules, procedures and problems including ICC and FIDIC for the contract of long and medium transaction.

• 무역상무연구
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• 제21권
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• pp.129-151
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• 2003

Nowadays even if environment of international commercial transaction is changing quickly municipal law could not meet with such change accordingly. So far, however, efforts towards unification have prevailingly taken the form of binding instruments, such as non-national or supranational legislation, international conventions or international model laws. Among them, the UNIDROIT Principles with parties' autonomous and yet non-binding character do not only meet the substantive requirements of a true law merchant. In addition they also counter some of the main points of criticism against the modern lex mercatoria. As such the Principles constitute a cornerstone in the lex mercatoria debate and may become the heart of the new lex mercatoria. The purpose of this article is to ask whether there could be applied the Principles in international commerce. For the purpose it is to investigate when the Principles are applied in international commerce and how effectively the Principles are applied for the decision in international commercial disputes. Even though the Principles are used for reference by parties involved for the voluntary regulation of their contract, it is sufficiently expected that the Principles are to be a stepstone of uniform contract law in international commerce. Until now cases of appling the Principles are not satisfied with its expectation as a source of non-legislative means of unification or harmonization of law. Given the party's autonomy in the contract, this is among other things because business parties are strongly tend to observe their national laws in their international commerce. And also, even though there are a number of neutral and uniform regulations for international commercial contracts, parties do not often recognize their usefulness with being up to expectation. In order to explore the applicability of the Principles a number of cases of ICC International Court of Arbitration and others are quoted.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.125-139
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• 2007

최근 한국과 미국 법원에서는 조정제도를 자주 이용하고 있다. 조정제도를 이용함으로써 법원은 사건부담을 줄일 수 있을 뿐만 아니라 소송지연을 막고 비용을 절감할 수 있다. 그러나 조정제도의 장점을 극대화하기 위해서는 일반 조정제도의 기본원칙인 당사자 원칙을 최대한 반영하고 법원의 개입은 제한하여야 할 필요가 있다. 이점에 있어 미국과 한국의 법원내 조정제도에 비교해볼 때, 전자가 법원의 개입은 필요한 최소한에 그치고 조정인과 분쟁당사자간의 당사자자치를 최대한 보장하고 있음을 알 수 있다. 이 글은 한국과 미국의 법원내 조정제도를 비교 분석하여 효과적인 법원내 조정제도를 정착시키기 위하여 개선해야 한 점을 제시하고자한다. 한국과 미국의 법원내 조정제도의 근본적인 차이는 조정절차진행에서 법원의 역할과 관련되어 있다. 특히 미국법원은 분쟁 당사자들 스스로 분쟁해결을 할 수 있도록 돕는 역할에 주력하는 반면, 한국법원은 조정절차 전 과정에서 분쟁해결에 적극 개입한다. 보다 공정하고 효율적인 민사조정절차를 위해서는 관련법의 정비뿐만 아니라 조정인의 교육과 전문성을 강화하기 위한 제도적 장치를 마련할 필요가 있다.

• 한국중재학회지:중재연구
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• 제15권3호
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• pp.55-84
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• 2005

The arbitral award is the decision of the arbitrators on the dispute that had been submitted to them by the parties, either under the arbitration clause providing for the determination of future disputes or under submission of an existing controversy. The arbitral award has the same effect between the parties as a final and binding court judgment. The arbitration award shall acquire, as soon as it is given and delivered to each parties, the authority of res judicata in respect of the dispute it settles. The validity of an award is a condition precent for its recognition or enforcement. The validity of an award depends on the provisions of the arbitration agreement including any arbitration rules incorporated in it, and the law which is applicable to the arbitration proceedings. Such provisions usually address both the form and the content of the award. As the 'form', requires article 32 of Arbitration Act of Korea that an arbitral award should, at least, (1) be made in writing and be signed by all arbitrators. (2) state the reasons upon which it is based unless the parties have agreed that it should not, (3) state its date and place of arbitration. There are some further requirement which may have to be observed before an award which has been made by a tribunal can be enforced. (4) The duly authenticated award signed by the arbitrators shall be delivered to each of the parties and the original award shall be sent to and deposited with the competent court, accompanied by a document verifying such delivery. This rule can be interpreted as if the deposit of an arbitral award with the competent court is always required as a condition for its validity or as a preliminary to its enforcement in Korea. However, we must regard this rule which requires the deposit of an arbitral award with court, as rule of order, but not as condition of its validity. Because that the date on which the award is delivered to each party is important as it will generally determine the commencement of time limits for the making of any appeal which may be available. Furthermore, the party applying for recognition or enforcement merely has to supply the appropriate court with the duly authenticated original award or a duly certified copy thereof, not any document which proves that an the arbitral award is sent to and deposited with the competent court. In order to avoid some confusion which can be caused by its interpretation and application, the Article 32 (4) of Arbitration Act of Korea needs to be abolished or at least modified.

• 한국중재학회지:중재연구
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• 제19권2호
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• pp.27-47
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• 2009

Concepts of mediation and conciliation as alternative dispute resolutions are often confusingly used. As to what is meant by mediation and conciliation, there is no uniform legal definition. However, there has been a distinction between two methods of dispute settlement under the international law (UN Charter, WTO DSU, NAFTA, EU mediation directive, WIPO Mediation Rules) although there is no clear definition on the terms of mediation and conciliation. And also under the domestic law such as U.K, France, Germany, a clear distinction has been made between two terms. Mediation means a facilitated negotiation between two parties through the intervention of a third party. A third and neutral party (mediator) help the parties in dispute to find their solution by managing a certain mediation protocol and facilitating communication between the parties while in conciliation, a third party evaluative the case and can suggest the parties a legally non-binding solution. Once the parties accept it, it becomes binding between them. However, in the U.S,, it seems that there is no practical use of distinguishing mediation and conciliation. The term of mediation is more commonly used than the term of conciliation and it has two kinds of mediation such as facilitative and evaluative mediation. Korea's conciliation system is close to conciliation or evaluative mediation. In conclusion, what is distinct between mediation and conciliation is the role of third party. If a neutral third party takes a role of advisor or facilitator, then he or she may employ a proper protocol to help the parties to find themselves their solution (mediation) while if a neutral person plays a role of evaluator, then he or she listens to the parties and suggest a solution to them (conciliation).

• 한국중재학회지:중재연구
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• 제20권2호
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• pp.173-198
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• 2010

The purpose of this paper is to research on the liability for the space damage and the settlement of the dispute with reference to the space activity under the international space treaty and national space law of Korea. The United Nations has adopted five treaties relating to the space activity as follows: The Outer Space Treaty of 1967, the Rescue and Return Agreement of 1968, the Liability Convention of 1972, the Registration Convention of 1974, and the Moon Treaty of 1979. All five treaties have come into force. Korea has ratified above four treaties except the Moon Treaty. Korea has enacted three national legislations relating to space development as follows: Aerospace Industry Development Promotion Act of 1987, Outer Space Development Promotion Act of 2005, Outer Space Damage Compensation Act of 2008. The Outer Space Treaty of 1967 regulates the international responsibility for national activities in outer space, the national tort liability for damage by space launching object, the national measures for dispute prevention and international consultation in the exploration and use of outer space, the joint resolution of practical questions by international inter-governmental organizations in the exploration and use of outer space. The Liability Convention of 1972 regulates the absolute liability by a launching state, the faulty liability by a launching state, the joint and several liability by a launching state, the person claiming for compensation, the claim method for compensation, the claim period of compensation, the claim for compensation and local remedy, the compensation amount for damage by a launching state, the establishment of the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea regulates the definition of space damage, the relation of the Outer Space Damage Compensation Act and the international treaty, the non-faulty liability for damage by a launching person, the concentration of liability and recourse by a launching person, the exclusion of application of the Product Liability Act, the limit amount of the liability for damage by a launching person, the cover of the liability insurance by a launching person, the measures and assistance by the government in case of occurring the space damage, the exercise period of the claim right of compensation for damage. The Liability Convention of 1972 should be improved as follows: the problem in respect of the claimer of compensation for damage, the problem in respect of the efficiency of decision by the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea should be improved as follows: the inclusion of indirect damage into the definition of space damage, the change of currency unit of the limit amount of liability for damage, the establishment of joint and several liability and recourse right for damage by space joint launching person, the establishment of the Space Damage Compensation Review Commission. The 1998 Final Draft Convention on the Settlement of Disputes Related to Space Activities of 1998 by ILA regulates the binding procedure and non-binding settlement procedure for the disputes in respect of space activity. The non-binding procedure regulates the negotiation or the peaceful means and compromise for dispute settlement. The binding procedure regulates the choice of a means among the following means: International Space Law Court if it will be established, International Court of Justice, and Arbitration Court. The above final Draft Convention by ILA will be a model for the innovative development in respect of the peaceful settlement of disputes with reference to space activity and will be useful for establishing the frame of practicable dispute settlement. Korea has built the space center at Oinarodo, Goheung Province in June 2009. Korea has launched the first small launch vehicle KSLV-1 at the Naro Space Center in August 2009 and June 2010. In Korea, it will be the possibility to be occurred the problems relating to the international responsibility and dispute settlement, and the liability for space damage in the course of space activity. Accordingly the Korean government and launching organization should make the legal and systematic policy to cope with such problems.