• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.76
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• pp.21-47
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• 2017

Interim measures by an arbitral tribunal aim to protect the parties' rights before or during arbitral proceedings for avoiding frustration of the final award in international commercial disputes. Even though decisions of the interim measure are expected to be performed by parties directly during the arbitral processing, it is not easy to be provided by the arbitral tribunals cause of lack the power to enforce their decisions directly against the parties. Particular court supports mechanism for enforcement directly to assistance to arbitral tribunal's decisions. Decisions on interim measures are provisional. Even though the arbitration is ongoing to request interim measure directly to the arbitral tribunal, relevant courts are able to ensure effective relief cause by the difficulty of limited rights of the arbitral tribunal. In this time both revised Korean Arbitration Act in 2016 and UNCITRAL 2006 revised Model Law are complemented to attach articles for recognition and enforcement of interim measures by arbitral tribunal during the arbitration processing. It could be possible to enforcement of decisions of interim measures by arbitral tribunal on the revised arbitration law. In this paper it is considered the problems and alternatives on related applicable articles and articles of recognition and enforcement for the interim measures by arbitral tribunal under the revised UNCITRAL Model law and Korean Arbitration Act.

• Journal of Arbitration Studies
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• v.32 no.3
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• pp.47-70
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• 2022

This paper studies legal regulation of the public policy exception in the Russian Federation and domestic judicial practice on the issue. It reviews current legislation and analyzes a number of recent court cases where an arbitral award rendered by a foreign arbitration body was refused recognition and enforcement based on public policy violation. By doing so, it contributes to the knowledge on the concept of public policy in the Russian legal system and how public policy can affect the process of recognition and enforcement of foreign arbitral awards on its territory. The review of court cases demonstrates different aspects of how the public policy exception can be applied by Russian arbitrazh courts. Such decisions can provide a clearer picture of the kinds of situation that can lead to invoking the public policy clause by the court. Also, it is of practical value as persons preparing to file a claim or to be a defendant in a Russian court can be required to present existing court decisions in support of their claim or defence.

• Journal of Arbitration Studies
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• v.31 no.3
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• pp.3-23
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• 2021

England is a significant base for international trade in Europe, and dispute resolution through arbitration is active. Therefore, due to the geographical relationship with the European continent, the settlement of trade transactions and disputes with European countries is one of the most essential tasks. In this regard, arbitration procedures in England have been actively used for a long time. In England, dispute resolution methods through arbitration have been developed centered on merchant groups such as guilds from the 16th century and have been actively used until today. However, the arbitration procedure also had the characteristics of the common law because there was no legislation related to arbitration. Therefore, arbitration based on common law was carried out until the first half of the 19th century. In the 'Arbitration Act 1889', two types of arbitration systems, 'common law arbitration' and 'statutory arbitration' coexisted. However, in the arbitration procedure, according to the newly enacted 'Arbitration Act 1889', the arbitration agreement was binding from the time the arbitration agreement was reached. There was a way to select an arbitrator even if it was not explicitly stipulated in the arbitration agreement, and the arbitration award was quickly enforced. Arbitration under contract was preferred over common law arbitration, where withdrawal and revocation of awards were possible. However, in response to these provisions, the England courts considered the arbitration system to deprive the courts of jurisdiction, while a strengthened judicial review of arbitration procedures was done. In particular, England unified the arbitration-related laws, which had been scattered for a long time, adopted the model law, and enacted the 'Arbitration Act 1996'. Under the recognition and enforcement of arbitral awards in 'Arbitration Act 1996', Section 66 deals with the recognition and enforcement of arbitral awards and foreign arbitral awards. Section 2 of the 'Arbitration Act 1950' is inherited and used as it is. Second, it deals with the execution of arbitral awards under the New York Convention: Article 100 (New York Convention), Section 101 (Approval and Enforcement of Awards), Section 102 (Evidence Presented by a Party Seeking Recognition and Enforcement), and Section 103 (Provides Matters Concerning Rejection Recognition and Enforcement).

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.30
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• pp.91-120
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• 2006

An Arbitration agreement is one kind of contracts between two or more contracting parties; any possible disputes that arise concerning a contract will be settled by arbitration. Contracting parties who have made a valid arbitration agreement will submit a dispute for settlement to private persons(arbitrators) instead of to a court. Arbitration may depend upon the agreement of the private parties, but it is also a system which has been built on the law and which relies upon that law in order to make it effective both nationally and internationally. That is to say, arbitration is wholly dependent on the underlying support of the court. The complementarity of the courts and of the arbitrators is a well-established fact; they seek for the common purpose, the efficacy of international commercial arbitration. Most states' laws contain the provisions which have been set for the supportive role of the courts relating to arbitration; (1) the enforcement of the arbitration agreement(rulings on validity of the arbitration agreement), and the establishment of the tribunal at the beginning of the arbitration, (2) challenge of arbitrators, interim measures, and intervention during evidence in the middle of the arbitral proceedings, (3) filing of the award, challenge of the arbitral award, and recognition and enforcement of the arbitral award at the end of the arbitration. Most international instruments and national laws concerning arbitration believe that authoritative courts should play their power not to control and supervise arbitration but to support and develop the merits of arbitration at most. 1985 UNCITRAL Model Law also expressly limit the scope of court's intervention to assist arbitration, not to control it.

• Journal of Arbitration Studies
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• v.18 no.3
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• pp.23-50
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• 2008

In a global economy where, private parties increasingly favour arbitration over litigation, many foreigners are unfortunately reluctant to arbitration with China's parties because the China national courts do not scrutinize the merits when deciding whether to recognize and enforce foreign awards. As a result, the finality of arbitral awards hangs in uncertainty. Overseas concern is that China's courts may abuse "Public Policy" grounds provided for in the New York Convention to set aside or refuse to enforce foreign awards. The purpose of this article is to examine the distrust to enforcement of arbitral awards whether that is just an assumption. In spite of the modernize and internationalize her international arbitration system and many reforms provided in the related law and rules, the most vexing leftover issues are caused of the lack of "rule of law" in China. This situation imply the risk of pervert 'Public Policy' as the ground for refusing enforcement of arbitral awards. Some cases reflect the fear. But it is unclear whether those cases caused from the lack of "rule of law" in China. Same uncertainty present between Hon Kong-China under th one country-two legal system after the return of Hong Kong to China on 1 July 1997. While China is striving to improve its enforcement mechanism in regard to the enforcement of arbitral awards, it can only be expect following the establishment of rule of law in the future.

• Journal of Arbitration Studies
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• v.18 no.2
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• pp.103-127
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• 2008

This paper is to research the powers and interim measures of the arbitral tribunal in the arbitral proceedings of the international commercial arbitration under arbitration legislation and arbitration rules including the UNCITRAL Model Law and Arbitration Rules. The powers of the arbitral tribunal may be found within the arbitration agreement or any arbitration rules chosen by the parties, or the chosen procedural law. The power of the arbitral tribunal to decide its own jurisdiction is one of the fundamental principles of international commercial arbitration. It is a power which is now found in nearly all modern arbitration and rules of arbitration. Where an arbitral tribunal has been appointed then it will usually have the power to proceed with the arbitration in the event that a party fails to appear. It cannot force a party to attend but it may sanction the failure. While the arbitral tribunal can direct the parties to attend and give evidence the arbitral tribunal has no power to compel a party to give evidence. The arbitral tribunal may continue the arbitration in the absence of the party or its failure to submit evidence and make an award on the evidence before it. Under most of arbitration legislation and arbitration rules, the arbitral tribunal has the power to appoint experts and obtain expert evidence. The power to order a party to disclose documents in its possession is a power given to the arbitral tribunal by many national laws and by most arbitration rules. The arbitral tribunal cannot, however, compel disclosure and in the case where a party refuses to disclosure documents then the sanctions that the arbitral tribunal can impose must be ascertained from the applicable rules or the relevant procedural law. A number of arbitration rules and national laws allow for the arbitral tribunal to correct errors within the award. Most of arbitration legislation and arbitration rules permit the arbitral tribunal to grant orders for interim measure of protection. Article 17(1) of the Revised UNCITRAL Model Law of 2006 states: Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures. Interim measures of protection usually take such forms as (1) conservatory measures intended to prevent irreparable damage and maintain the status quo; (2) conservatory measures intended to preserve evidence or assets. Orders for interim measures by the arbitral tribunal are not self-enforcing. However, the arbitral tribunal must have the powers necessary to make interim measures effective. The Article 17 B of the Revised UNCITRAL Model Law of 2006 provides applications for preliminary orders and conditions for granting preliminary orders. And the Article 17 H provides recognition of enforcement of interim measures. In conclusion, the revised articles with regard to interim measures of the UNCITRAL Model Law of 2006 would contribute significantly to the security of the effectiveness of interim measures in international commercial arbitration. Therefore, Korean Arbitration Law and Arbitration Rules would be desirable to admit such revised articles with regard interim measures.

• Journal of Arbitration Studies
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• v.15 no.2
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• pp.197-224
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• 2005

The purpose of this paper is to make research on the party's autonomy principle and the applicable law to the arbitration agreement, the applicable law to the validity of the arbitration agreement, the applicable law to the arbitrability of the arbitration agreement, the applicable law to the contracting ability of the arbitration agreement, and the applicable law to the method of the arbitration agreement. If no choice of law is made by the parties with respect to the arbitration agreement-which is the stand situation-the validity of the agreement may have to decided under its proper law, or under the law of the place of arbitration, or the law of the place of enforcement. If the subject matter is not arbitrable, the arbitration agreement remains without effect. The rules determining arbitrability may differ from one country to another, from one legal system to another. If a party is lacking capacity to enter into an arbitration agreement, the recognition and enforcement of the arbitral award may be refused at the request of the party against whom it is invoked. This principle is laid down in the New Yark Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The validity of an arbitration agreement sometimes also depends on the form in which it is made. Article II. 2 of the New York Convention states that the term 'agreement in writing' shall include an arbitral clause in a contract or an arbitration agreement, signed by the parties of contained in exchange of letters or telegrams.

• 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.

• Journal of Arbitration Studies
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• v.17 no.2
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• pp.71-100
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• 2007

To promote the way of resolving the increasing disputes regarding international intellectual property by arbitration, we should overcome uncertainty thwarting the dispute resolution; i.e., whether a dispute regarding intellectual property would be an arbitrable subject, whether the arbitration agreement would be valid and enforceable, and whether the arbitral award could be recognized and enforced in a foreign country. This article is intended to seek how to promote and facilitate the resolution of international disputes regarding intellectual property by arbitration. This article in Chapter II will examine the characteristics of the IP disputes first. Chapter III of this article will study arbitrability of IP disputes. Then, Chapter IV will discuss the requirements, validity, and effectiveness of arbitration agreement of international IP disputes. The author will discuss the procedure of arbitration of the international IP disputes in Chapter V, and finally the recognition and enforcement of foreign arbitral awards thereon in Chapter VI. Due to the so called 'territoriality principle' in intellectual property, the international disputes thereof confront numerous procedural setback, e.g., jurisdiction, conflict of laws, the recognition and enforcement of foreign judgments or awards. To overcome such setbacks, I propose resolution of international IP disputes by one-step arbitration procedure through widely recognizing the arbitrability of IP disputes, and utilizing unnational nature of arbitration. In addition, I propose to set up the principles as to arbitration of the international IP disputes as the American Law Institute has formulated the principles for International Intellectual Property Litigations. By setting up these principles, I am certain it will be helpful to just and prompt resolution of international IP disputes which occur more frequently these days.

• Journal of Arbitration Studies
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• v.23 no.4
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• pp.29-53
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• 2013

Chinese ISD has been changed a lot since the reformation policy in 1978 and it is expected that China will present a changed attitude toward its advantage as its industrialization continues to advance. This study generally examines the ISD in BIT and also considers not only the attitude of China with regard to ISD but also the changes on the Chinese side. Moreover, this study determines the areas on which the Chinese government focuses. In order to conduct this study, the author attempts to classify the attitudes on ISD into chronical change and treaty powers based on the analysis of BIT. In addition, the paper examines the main contents of ISD in BIT which previously involved an agreement such as arbitral institution, arbitral range, counter-measures of local country, standard for admitting the nationality of corporate investors, and recognition and enforcement of arbitral award. Based on analysis, this paper mentions matters that require attention and caution in the Korea-China FTA as regards investment negotiation, and also suggests instructions for investors who may face dispute with the Chinese government.