• Journal of Arbitration Studies
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• v.29 no.1
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• pp.53-70
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• 2019

This study analyzed some cases of the China International Economic and Trade Arbitration Commision (CIETAC) related to the application of the Contracts for the International Sale of Goods (CISG). As a contracting party of the CISG, China has accumulated a considerable amount of experience in applying CISG through commercial arbitrations. This study sought to understand how CISG is operated in commercial arbitration in China. By analyzing actual cases in China, Korean commercial arbitration can avoid mistakes and further improve. This study of Chinese cases will give some useful information for Korean companies. As defined by the CISG, the applicability can be divided into direct application and indirect application. When China joined the CISG, it made a reservation out of Article 1(1)(b). Korea and China are contracting parties to CISG and CISG is, therefore, directly applied. It is beneficial for Korea to understand how CIETAC is indirectly applied in China then. Some of the results of this study are as follows: First, CIETAC made a correct judgment most of the time on the direct application of CISG. However, there were mistakes in the judgment of the nationality of the parties in a few cases. The parties must clearly define applicable laws when entering into a contract. Secondly, the 2012 "CIETAC Arbitration Rules" was revised so that the "party autonomy" was introduced into Chinese commercial arbitration concerning indirect application. Therefore, the principle of autonomy of the parties was not fully recognized in the past judgments. Instead, the domestic law of China was applied in accordance with the reservation of Article 1(1)(b). Thirdly, China did not explain the application of CISG in Hong Kong, which led to ambiguity in concerned countries. Therefore, it is necessary to confirm the status of CISG in Hong Kong. In addition, Korean companies should clearly define the applicable laws when dealing with Hong Kong companies.

• Journal of Arbitration Studies
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• v.16 no.1
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• pp.153-185
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• 2006

This article deals with the Improvement of Compulsory Arbitration System on Trade Union and Labor Relations Adjustment Act in Korea. If a labor dispute occcur, the settlement of labor dispute must be reached for the parties' own accord. The autonomy of the parties concerned is the fundamental principle in the settlement of labor dispute. If the Rights Which are guaranteed by art. 33 Constitutional Law belong to civil liberties, we should consider Trade Union Act as the restriction of basic rights. Arbitration is a procedure which permits the most positive intervention by the arbitrator. It is carried out by an arbitration committe which is composed of three arbitrators appointed by the chairman of the Labor Relations Commission. Compulsory arbitration system of the labor for parties should be improved. In case of necessary public enterprises, more strict requirements on assembly for labor disputes should be prepared and the government should support institutions to prevent labor-management disputes by educating experts on labor-management relations and improving the quality of arbitration.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.33
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• pp.145-164
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• 2007

The Arbitration costs provided in Article 31 consist of arbitrators' fees, arbitrators' expenses, ICC administrative expenses, expenses of experts appointed by the Arbitral Tribunal, and parties' costs. Among them the first three items are independently determined by the Court in accordance with the Scale, while another two items are determined by the arbitrator and each party. The three items determined by the Court are communicated by Secretariat to the Arbitral Tribunal for inclusion in the award following the approval of the draft submitted to the Court. Also the final award may decide which of the parties shall bear them or in what proportion they shall be borne by the parties. According to Article 31(3), the arbitrators have complete jurisdiction or discretion to allocate the costs. Three common approaches are as follows; First, all of the costs are borne by the losing party. Second, all of the costs are allocated in proportion to the outcome of the case. Third, all of the costs determined by the Courts are shared equally by the parties and both parties bear their own costs. But, both parties may include intentions in accordance with the principle of party autonomy. For example, if the parties wish to ensure that the arbitration costs be shared equally and that the arbitrator make no allocation of costs or fees, the following sentence could be added to the arbitration clause in their contract. "All costs and expenses of the arbitrators [and the arbitral institution] shall be borne by the parties equally; each party shall bear the costs and expenses, including attorneys' fees, of its own counsel, experts, witness and preparation and presentation of its case" And also, if the parties wish expressly to link any allocation of costs, and fees to the result of the award the following could be added to the arbitration clauses. "The arbitrators may award to the prevailing party, if any, as determined by the arbitrators, its costs and expenses, including attorneys' fees"

• Journal of Arbitration Studies
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• v.32 no.1
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• pp.43-69
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• 2022

In the case of the United States, which has the same provision as Article 10 of the Federal Arbitration Act, a contract may be exceptionally validated if the parties have clearly concluded the contract to expand the grounds for vacating awards in an arbitration agreement. It is possible that the parties create the grounds for vacating that is not stipulated in the statue by clear agreement. However, it remains the issues when this contract is valid. If we investigate the grounds for setting aside as discussed in this paper, in cases ① where an arbitrator failed to apply the substantive law expressly designated by the parties without a good reason; ② where there was a serious error in the application of the substantive law; ③ where an arbitrator decided under ex aequo et bono despite the parties explicitly designated the substantive law, the parties may bring an action for annulment of arbitral awards in court according to their agreement to expand the grounds for vacating the awards. It is important enough to change the rights and obligations of the parties for them whether or not the substantive law of the arbitration was applied. With Regard to the contract to expand the grounds for setting aside the awards in arbitration agreement, there are still issues how to handle the case where the parties have not designated the substantive law, and the validity of a contract to expand the grounds for vacating on reasons other than violation of law application, and relations with Article 5 of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, where the misapplication of the law does not stipulated as the grounds for refusal to recognize and enforce the foreign arbitral award, and so on.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.71
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• pp.85-105
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• 2016

Independent guarantee is new financial product developed in international commercial transaction. The nature of independent guarantee is an independent undertaking, which takes the form of documentary transaction. As long as the documents presented by the beneficiary are on their face complying with the terms and conditions of the guarantee, the guarantor is obliged to pay upon the complying presentation. Where parties choose to apply for issue of independent guarantee in international commercial transactions in China, Chinese court shall respect the autonomy of parties. If either the guarantor or the beneficiary is located outside of China, or the facts which cause the establishment, change or cancellation of independent guarantee relationship occurred outside of China, it shall be deemed as foreign related independent guarantee. If the interested parties requests for confirmation of the independence of foreign related independent guarantee, it shall be supported by Chinese court. However, parties dealing with Chinese domestic commercial transaction have not fully realized the severity of independent guarantee liability. The market credit is being cultivated and the financial innovation is being explored at present in China. In order to guard against the systematic and the regional financial risk, before relevant rules are promulgated, Chinese court shall not recognize the independence guarantees issued for the domestic commercial transaction, but treat it as joint liability surety.

• Journal of Arbitration Studies
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• v.30 no.1
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• pp.67-86
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• 2020

In the case of multiple commerce contracts in commerce, as well as multiple contracts related to it, a solution for the merging of arbitration proceedings is necessary in order to ensure uniformity of dispute resolution. Since the arbitration proceedings are based on the parties' agreement, no merging of two or more arbitration proceedings may transpire unless all parties agree. Claims of merging in arbitration proceedings lead to problems such as lack of party autonomy, resulting from lack of consent of the parties to merging, and how to appoint an arbitrator in a multilateral arbitration proceeding. Many of the major arbitration bodies have recognized the significant benefits of the terms of consolidation, and have recently revised the Arbitration Rules to include or extend existing clauses to reflect the needs of the parties. This study introduces the merging provisions of several selected major arbitration rules, such as the ICC, Switzerland, SCC, LCIA, SIAC, HKIAC, ACICA, and UNCITRAL rules, and looks at the main similarities and differences among the rules.

• Journal of Arbitration Studies
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• v.14 no.1
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• pp.61-101
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• 2004

Information and communications technologies are affecting an economic and social transformation of all countries. Without exception international commercial dispute resolution systems are faced with change its mechanism to online technology. Dispute parties can seek redress through arbitration other than litigation or mediation. Traditional dispute resolutions do not match the cyber trade environment which is basically pursuit the speed and efficiency in cyberspace. Arbitration other than resolution methods have been considered to be match with the online environment which is including party autonomy, speed and internationally accepted and binding awards. Traditional arbitration, however is lack of time and different physical location relating all parties. So we now think cyberspace as for the resolving place which is online arbitration. Even the parties exist in different space and time they may meet in the same time and space without moving or trips. Nowadays there are many online arbitration service provider serving the resolution of dispute arising with online transaction. In this paper we study the tendency for online arbitration, the recognize uncertain matters and avoiding programs its matters when use the online arbitration between disputing parties under cyber trade environment.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.89-120
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• 2006

If the existence and effect of the arbitration agreement becomes an issue in international business transactions, it is the key point how we shall determine the applicable law by national rules for the conflict of laws, or by other methods. The argument in determination of the applicable law to the existence and effect of the arbitration agreement is related to regal nature of the arbitration agreement. As there are foreign factors in international arbitration, therefore we must consider such an aspect. Besides, we have to examine whether the general theory of contract is universally applicable to the arbitration agreement. Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the arbitration agreement. However, it is a difficult problem to recognize the applicable law chosen by the parties, whether it is based on any regal standard(for example New York Convention or the private international law or the essential quality of the arbitration agreement). In the light of the actual transactions, when the parties don't make a choice of the applicable law expressly, it will finally come down to presuming the party's implied intent. Nevertheless, finding the implied intent is a difficult problem. Some argue that we shall presume the choice of applicable law by an objective standard such as a place of arbitration, to prevent too much expansion of the scope of the recognition. But we need to review that this interpretation harmonizes with the principle of party autonomy. Especially, if we desire to detect the vital point where it is most closely linked to the arbitration agreement, we have to inquire how we will decide such a relation by means of any standard. However, as the existing Arbitration Act doesn't offer the solution to these issues, therefore we have to settle these problems through the development of adjudications and theories.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.33-55
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• 2007

Parties to national or international disputes use arbitration because they think it is faster than litigation or affords privacy. But it is very important for the parties that the decision of arbitrators is made impartially and independently. For the parties to accept the outcome of an arbitration, it is essential that the final outcome be the result of an impartial process, especially because arbitration is a form of adjudication, albeit a private one. The success of arbitration resides in the conduct of arbitrators. The more independent and impartial arbitrators are, the more trustworthy arbitration will be. Just as court procedures allow for the recusal of judges under certain circumstances, the arbitral process provides means to remove arbitrators from a tribunal if arbitrator can no longer be considered impartial or independent. This is blown as the disqualification or challenge of arbitrators. An arbitrator can also be challenged when he or she does not fulfill the contactually agreed and stipulated qualifications required by the arbitral agreement. An arbitrator's inability to act impartially could give rise to a challenge to the arbitrator, and even to the award. However, deciding whether an interest or relationship could give rise to an apprehension of bias is a difficult issue for every arbitrator. The standard of arbitrator's impartiality and independence is not commensurable to that of judge, because the parties are permitted considerable autonomy in selecting arbitrators. Particularly it may be expected for the party-appointed arbitrator to act as the advocate of the party in the deliberations of the tribunal. Doubts that could give rise to a challenge to the arbitrator should be justifiable. That is the case if a reasonable, informed third party would conclude that the arbitrator's decision making might be influenced by factors other than evidence presented by the parties. Consequently, for example, the mere fact that an arbitrator was to work in the same firm as one of the parties' counsel, this could not automatically be considered as grounds for challenge for lack of impartiality.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.117-136
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• 2007

Currently, it is the general trend that the party's autonomy principle is applicable in determining the applicable law for the international private law and the international commercial arbitration. The purpose of this article is to make research on the party's autonomy principle for the international commercial arbitral awards. For this purpose ist to analyse regal issue the applicability of the lex mercatoria and the possibility of $d\acute{e}pe\c{c}age$ relating to the party autonomy. In this Article ist dealt with Art. 29 para. 1 of the Korean Arbitration Act in comparison with Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure. The Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para. 1 of the German Code of Civil Procedure provides equally. "The arbitral tribunal shall decide the dispute in accordence with such 'rules of law' as chosen by the parties as applicable to the substance of the dispute. Any designation of the law or legal system of a given State shall be construed, unless otherwise expressed, as directly referring to the substantive law of that State and not to its conflict of laws rules." The term 'rule of law' used to describe the applicability of the lex mercatoria and the possibility $d\acute{e}pe\c{c}age$. Unlike Art. 28 para. 1 UNCITRAL Model Law and Art. 1051 para.1 of the German Code of Civil Procedure. Act, Art. 29(1) of the Korean Arbitration Act provides that the arbitral tribunal shall decide the dispute in accordence with the 'law' chosen by the parties as applicable to the substance of the dispute. However the majority view in Korea takes the position that the term 'law' should be interpreted broadly so as to encompass 'rules of law' at UNCITRAL Model Law and the German Code of Civil Procedure.