• Title/Summary/Keyword: Rules on International Arbitration

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Enforcement of Arbitral Awards Incompatible with the Korean Procedural Framework

  • Lim, Sue Hyun
    • Journal of Arbitration Studies
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    • v.30 no.3
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    • pp.67-94
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    • 2020
  • This paper examines the current enforcement regime of Korea and provides an overview of the same with focus on the changes before and after the 2016 revision of the Korean Arbitration Act. It briefly studies the pro-arbitration bias of the New York Convention, as well as the Korean judiciary's stance on the enforcement of foreign arbitral awards. Some of the substantial issues discussed in the paper include the major procedural changes brought about by the 2016 amendment with respect to the enforcement of arbitral awards. The paper also discusses the rare instances where the Korean judiciary refused to recognize or enforce an arbitral award, and the reasoning behind the refusal. The paper discusses and analyzes four court judgments that reflect the Korean judiciary's position on the enforcement of foreign and domestic arbitral awards in Korea. It focuses on the NDS v. KT Skylife case, where the court of first instance refused the enforcement on grounds that the relief granted by the arbitral tribunal was not specific enough for enforcement. Ultimately, the appellate court, although agreeing on the specificity requirement, reversed the ruling and granted an enforcement judgment on grounds that the application for enforcement had the legal interest to request an enforcement judgment.

Recent Trends and Use of International Commercial Mediation in The Area of Intellectual Property Rights - Focused on the WIPO Mediation (지식재산권 분야의 국제상사조정제도와 활용 - WIPO조정을 중심으로)

  • YI, LORI
    • Journal of Arbitration Studies
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    • v.31 no.2
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    • pp.77-98
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    • 2021
  • International commercial mediation of intellectual property rights fully meets the interests of the parties in such disputes in terms of their needs for neutral forum of dispute resolution, cost-effective settlement, objective opinion of relevant experts, internationally enforceable solution. In addition, as a procedural flexibility, respected self-determination of the parties, exploration of possible creative business solutions, maintenance of business relationship and confidentiality of mediation are major characteristics which can be competitively differentiated from the lawsuit or arbitration. The settlement agreement as a result of the WIPO mediation has an effect of contract while the settlement agreement as a result of most domestic ones has an effect of judicial reconciliation which can be domestically enforced. The latter is not subject to the application of the Singapore Convention on Mediation which establishes a harmonized legal framework for the right to invoke settlement agreements as well as for their enforcement. The WIPO international mediation system and its experience may be a good reference for Korea to take an initiative to establish a globally competitive international mediation system in the area of intellectual property rights.

A study on the Interpretation of Governing Law to Application in Electronic Transaction Dispute (전자거래분쟁에서 준거법 적용상 해석론)

  • Kang Lee-Soo
    • Journal of Arbitration Studies
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    • v.14 no.1
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    • pp.3-28
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    • 2004
  • The implementation of electronic transaction raises some new legal and institutional problem so it is necessary for us to prepare alternatives. As the development of electronic transaction is difficult without smooth settlement of dispute the pursue of smooth settlement of dispute is very important menu. while the most common method relating to the settlement of dispute is litigation. them relating to the litigation, the subject of governing law so jurisdiction and the subject of governing laws should be resolved above all. Further more in addition, the old act prior act was regarded as insufficient in that it lacked rules on international governing law to adjudicate, or international adjudicatory governing law, where as the expectation of the public was that the private international law should function as the basic law of the legal relational encompassing rules on governing law given the increase of It international disputes. for the move the private international law has also attracted more attention from the korean. Therefore, governing law to application concerned about electronic transaction should be prepared and the environment to keep electronic transaction secure and stable be guaranteed. And we should make plans to protect companies and consumers and should make efforts to expand electronic transaction infrastructure .

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Settlement Promotion of Commercial Disputes through the Arbitration Agreement (중재협정을 통한 상사분쟁의 해결촉진)

  • Kim, Sang-Ho
    • Journal of Arbitration Studies
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    • v.20 no.2
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    • pp.27-47
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    • 2010
  • It is well recognized that the availability of prompt, effective and economical means of dispute resolution is an important element in the orderly growth and encouragement of international trade and investment. Increasingly, arbitration, instead of litigation in national courts, has become the preferred means of resolving private international commercial disputes. Under the situation, it will be important thing for arbitral institutions to reach an agreement to promote the dispute settlement of the commercial disputes, for which efforts have been made between the Korean Commercial Arbitral Board(KCAB) and principal arbitration institutions of the foreign countries. Since 1973, the KCAB has entered into many arbitration agreements with well-known foreign institutions of arbitration. If the place of arbitration is not so designated by the parties, it, as a general rule, shall be the country of the respondent(s) under the Korea-Japanese Arbitration Agreement. On the other hand, the U.S.-Korean Commercial Arbitration Agreement maintains 'Joint Arbitration Committee which finally decide the place of arbitration. In 1996, the Korea-Austria Agreement of Cooperation was concluded for the prompt and equitable settlement on an amicable basis of commercial disputes. Under this Agreement, arbitral institutions between Korea and Austria agreed to act as an appointing authority in accordance with the UNCITRAL Arbitration Rules. It is also very important for Korea and China including North Korea to cooperate each other for the settlement of the commercial disputes within the Pan Yellow Sea Economic Bloc(PYSEB). The PYSEB is quickly becoming a distinctive and crucial region in the world sharing geographical proximity, many common historical experiences, and similar cultural norms and values although they have disparities in stages of development, trade and economic policies, and financial and legal frameworks. Finally, it should be considered to establish a central common system for settlement promotion of the commercial disputes within the PYSEB through the arbitration agreement. Such a dispute resolution system was already introduced and established within the area of the NAFTA, and it is called the Commercial Arbitration and Mediation Center for the Americas(CAMCA).

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A Study on Emergency Arbitrator System of SCC and Requirements for Granting of Interim Measures (스톡홀름 상업회의소(SCC) 중재기관의 긴급중재인 제도와 임시적 처분의 인정요건에 관한 연구)

  • Ahn, Keon-Hyung;Kim, Sung-Ryong
    • Journal of Arbitration Studies
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    • v.21 no.2
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    • pp.65-83
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    • 2011
  • The purpose of Emergency Arbitrator System is to provide parties with the possibility of obtaining interim measures before constitution of the arbitral tribunal. This paper examines the Emergency Arbitrator System set forth in Article 32 and Appendix II of Arbitration Rules of Stockholm Chamber of Commerce (SCC) in comparison with Article 37 of ICDR International Arbitration Rules. This paper also provides a case study of 4 Decisions rendered by Emergency Arbitrators under the auspices of SCC in 2010. It was found that it took only 4 days on average from the date upon which the request for emergency interim measures was registered to SCC to the decision rendered by Emergency Arbitrators. The figures of average days reflect its rapidity well, one of the most preferred characteristics of arbitration. However, a case study of SCC decisions shows that only one request for interim measures was successfully granted. In other words, it was found that the requirements for granting of interim measures by emergency arbitrator were quite strictly applied. If interim measures is to be granted, it was found that the requesting party should prove to satisfy the requirements for granting of interim measures as follows: First, the requesting party has to demonstrate that it may suffer irreparable or serious harm in commercially-sensible, not in a strictly literal sense unless the interim measure is granted. Second, the party requesting interim measures has to persuade the Emergency Arbitrator that the request was of an urgent nature. Third, the requesting party is required to meet the reasonable possibility that it may succeed on the merits of the claim.

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A Study on Arbitration for Dispute Resolutions of the Commercial Transaction and the Investment in Central Asia (중앙아시아에서 무역과 투자분쟁해결을 위한 중재제도에 관한 고찰)

  • YU, Byoung-Uk
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.68
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    • pp.123-148
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    • 2015
  • Central Asian Countries had been independent in 1991 from USSR. Since then it have been increasing foreign trade and investment amount with outside countries including China, Japan, EU and South Korea. Korean enterprises and entities have endeavored to secure plentiful natural resources, oil and gas energy and expand the market share to exporting the consuming and industrial competitive goods and services for those countries. In the case of disputes of commercial transactions and investment, arbitration is regarded as a dispute resolution system which has been preferred in international transactions and investments by the business world. Since the collapse of the USSR, Central Asian Countries have worked to modernize its arbitration law and procedure to conform with international standard rules. Arbitral legislation in Central Asian countries is based on the Model Law as adopted in 1985. However, CIS's legislation systems of arbitration are not satisfied with the international standard in national laws and practices. That is the reason to consider for the specific parliament about arbitration for the dispute resolutions in the commercial transaction and investment between Korean enterprises and CIS. In this article, it is discuss problems and its alternatives in the dispute resolution about the commercial transaction and investment into Central Asian countries including the tendency to the increasing the trade volumes of goods and investment between South Korea and CIS. According to this article, South Korea consider the long term strategy followed the preferred economic relative partnership for business success on commercial transaction and investment with the Central Asian Countries.

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The Current Status and New Regulatory Arrangements of the Enforcement of Commercial Arbitration Awards in China from the Foreign Investor's Perspective (중국에서의 상사중재판정 집행에 관한 동향과 제도개선 연구 : 외국투자자 관점을 중심으로)

  • Chung, Yong-Kyun
    • Journal of Arbitration Studies
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    • v.20 no.1
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    • pp.133-167
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    • 2010
  • The enforcement of commercial arbitration awards in the People's Republic of China is one the controversial obstacles faced by foreign investors in China. The foreign investor will fail to enforce the arbitration award, if the Chinese court refuses the enforcement in China, even if the arbitration tribunal rules the award in favor of foreign investor who is in dispute with Chinese partners. In Korea, we have not many researches in the enforcement of foreign related awards and awards ruled by other jurisdiction. In recent times, Professor Kyung-Ja Cha(2005) and Professor Sun-Jeong Kim(2008) analyzed the enforcement of arbitration awards in China. Professor Kyung-Ja Cha(2005) reports the details of the enforcement statistics of CIETAC during 1990s. Professor Sun-Jeong Kim(2008) analyzed the obstacles of the enforcement of foreign related awards in China. This paper extends their researches in the field of the enforcement of arbitration awards in China. First, this paper extends Professor Kyung-Ja Cha(2005)'s study by introducing the Chinese enforcement situation during the period of 2000-2007. Second, this paper extends Professor Sunjung Kim(2008) emphasizes the local protectionism and the weakness of judiciary as key factors of obstacles to enforce the foreign related awards in People's Republic of China. This paper, additionally, highlights the role of the Guanxi and the antagonism of court toward arbitration institution to enforce the foreign related awards in People's Republic of China. Third, this study provides the recent developments of Supreme People's Court(SPC)'s rules to narrow down the gap between the practices of international arbitration and those of People's Republic of China. The Implications of this study are as follows. First, it is desirable for foreign investors to appoint the CIETAC or BAC as the arbitration commission in China. Second, the local competent attorney is the best choice to solve the respondent's insolvency in China. Third, foreign investors is required to monitor the provisions on the electronic instruments such as EDI and Email in Chinese law.

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A Study on the Determination and the Allocation of the Costs of Arbitration in ICC Rules of Arbitration(1998) (ICC중재규칙(1998)에서 중재비용의 결정 및 할당에 관한 연구)

  • Oh, Won-Suk;Kim, Young-Hak
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.32
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    • pp.93-111
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    • 2006
  • The purpose of this paper is to analyze the composition of the arbitration costs in ICC Rule of Arbitration and to examine how each item of the costs is determined. Furthermore this author tired to find the principles or criteria deciding which of the party should bear them or in what proportion they shall be home by the parties in Article 31. Thus this author could find three common approaches. First, all of the costs are home by the losing party, or Second, all of the costs are allocated in proportion to the result of award in each case. Third, all of the costs determined by the Court as shared equally by the parties and both parties bear their own costs. But, both parties may include their intention in accordance with the principle of party autonomy. For example if the parties with to ensure that the arbitration costs be shared equally and that the arbitrator make no allocation of costs and fees, the following sentence could be added to the arbitration clause. "All costs and expenses of the arbitrators (and the arbitral institution) shall be home by the parties equally; each party shall bear the costs and expenses, including attorneys' fees, of its own counsel, experts, witnesses and preparation and presentation of its case."

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A Study on the Selection of Arbitrators In International Arbitration (국제상사중재에서 중재인선정 방식에 관한 연구)

  • Shin, Koon-Jae
    • Journal of Arbitration Studies
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    • v.20 no.1
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    • pp.21-39
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    • 2010
  • The role of the arbitrator is so significant in the international arbitration that its success or failure may depend on the credibility of the arbitrator. It has long been understood that the ideal arbitrators are should be independent, unbiased, and have the requisite legal and/or technical expertise and experience for the case at hand. Arbitrators may be selected either by agreement of the parties, by appointment by arbitral institution or by a national court. This article outlines the main method of selecting the members of the tribunal plus some of the benefits and burdens of each method. One of the most common methods of appointing arbitrators is by agreement of the parties. This approach is very attractive because it allows parties to submit a their dispute to judges of their own choice, that they also agree on. Most arbitral institutions have a panel of arbitrators and their arbitral rules. So, if disputants agree on a specific arbitral institution, they can settle their disputes by arbitration easily and quickly. If disputants are unable to agree on arbitrator(s) or a specific arbitral institution, method of selecting arbitrator(s) by national court must be employed.

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A Study on the Dispute Boards in International Medium and Long-term Transaction - Focus on the Construction Contract - (중장기 국제거래에서 분쟁해결위원회에 관한 고찰 - 건설계약을 중심으로 -)

  • Yu, Byoung Yook
    • THE INTERNATIONAL COMMERCE & LAW REVIEW
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    • v.57
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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.

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