• Journal of Arbitration Studies
• /
• v.33 no.2
• /
• pp.85-108
• /
• 2023

In international commercial arbitrations that arise from an international commercial contract, arbitral tribunals ruling on the merits of the arbitration apply the law governing the contract. The parties to contract are free to designate the law under the principle of parties autonomy. This paper examines this principle under the Korean Arbitration Act, and makes some legislative suggestions. For this purpose, this paper first discusses what is the scope of matters covered by the law governing the contract, what are the rules of conflict-of-laws for determining the law governing the contract, and what happens when the arbitral tribunal incorrectly applies the law governing the contract? Then, this paper further goes to examine issues such as the form of choice-of-law agreement, the explicit or implicit choice of law, the parties' ability to choose the rules of law including lex mercatoria, the change of choice-of-law agreement, the independence of choice-of-law clause.

• Journal of Arbitration Studies
• /
• v.16 no.3
• /
• pp.53-89
• /
• 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
• /
• v.17 no.3
• /
• pp.31-56
• /
• 2007

The purpose of this thesis lies on building the foundation for the further activation of trade among the Northeast Asian countries such as South Korea, Japan, China, Russia, and North Korea through an analytical comparison of their arbitration systems. Further activation of trade cannot be reached without previously building safety measures on the negotiation of exports, the control on defective imported merchandise, the returns on investments, and the stable management of businesses. Throughout this thesis an analytical comparison of these five countries' most important areas on arbitration will be carried out. These areas are the arbitration laws and organizations; the structures of the laws; scope of arbitration; form of arbitration agreement, appointment of arbitratiors, place of arbitration, hearing, court assistance in taking evidence, governing law, decision making by panel of arbitrators, form and contents of awards, effective of award, recourse against award, recognition and enforcement of awards. etc. It was found in each of the areas cases to be identical, similar or verydifferent; also, cases unable to arbitrate. This phenomenon was found to occur due to the differences in political and economic systems and perception of arbitration among these countries. Additionally, this thesis points out what should each country do for its integration. It is also suggested the organization of a common arbitration research body to continue the efforts for raising the awareness, building trust, and mutual recognition among the countries to ultimately create a common arbitration system. Lastly, it is a personal will that this thesis will serve as the starting point for in depth researches in each of the presented areas.

• Journal of Arbitration Studies
• /
• v.20 no.1
• /
• pp.109-131
• /
• 2010

Investment Agreement is to be a part of FTA, as negotiating together both trade and investment. For example, it has a separate chapter about investment in KORUS FTA contract and is more detailed and inclusive than BIT contents which are traditional investment provisions. It is called to the investment norm of FT A. The investment agreement lures a foreign investment by providing the environment which is stable to the foreign investors. Hence, it plans in goal for the economic development of the home country. In international investment, the arbitration award cases are coming out to be divided into two parts applying MFN provisions in investor protective principles and dispute resolution process; the tendency of broad interpretation and the tendency of limited interpretation. In the case of RosInvest Co UK Ltd v. the Russian Federation awarded in 2007, the arbitration tribunal interprets that the application scope of MFN provisions contain the more lucrative dispute provision than other BITs without limitations in entity right of the investor. This judgment is the same view as arbitration tribunal position of Maffezini case. The arbitration tribunal of Plama case has kept out an assertion magnifying the arbitration tribunal's jurisdiction. That is, for applying more inclusive investor-nation resolution method from different treaty, tribunal mentioned that MFN provision had to see clearly a point of applying the investor-nation dispute resolution method. Dispute resolution process providing inclusive MFN provision has both the tendency of broad interpretation and the tendency of limited interpretation. It needs ceaselessly to do the monitoring about cases of arbitration award. In conclusion, the point where MFN provisions are applied conclusively is recognized, but it is still controversial whether or not to magnify the jurisdiction of arbitration tribunal applying MFN provisions. Therefore, it does not exist clear principle in the theory or in the award eases about the application scope for entity protection provision of MFN. Hence, The Korean government of Korea and local autonomous entities needs to keep their eyes on the trend of the international arbitration award cases in relation to the investment dispute for the future. Also, Korean government or local self-governing group must consider MFN provisions when they make a contract of international investment treaty such as writing concretely the application of MFN provisions from KORUS FTA.

• Journal of Arbitration Studies
• /
• v.16 no.1
• /
• pp.45-80
• /
• 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
• /
• v.30 no.1
• /
• pp.39-66
• /
• 2020

Under the doctrine of separability, if the party did not specifically challenge the validity of the arbitration clause, then it is presumed valid, and arbitrators would still have authority to adjudicate disputes within the scope of the arbitration clause. Further, the Primerica and Spahr decisions address whether a court or an arbitrator should adjudicate a claim that a contract containing an arbitration clause is void ab initio due to mental incapacity. If the arbitration agreement is separable, as was found in Primerica, then the "making" of the agreement is not at issue when the challenge is directed at the entire contract and arbitrators may exercise authority. If an arbitration provision is not separable from the underlying contract, as in Spahr, a defense of mental incapacity necessarily goes against both the entire contract and the arbitration agreement, so the "making" of the agreement to arbitrate is at issue, and the claim is for courts to decide. Although no bright line rule can be established to deal with challenges of lack of mental capacity to an arbitration agreement, the rule in Prima Paint should not be extended to this defense. Extending the rule in Prima Paint would force an individual with a mental incapacity to elect between challenging the entire contract and challenging arbitration. Accordingly, there should be a special set of rules outside of the context of Prima Paint to address the situation of status-based defenses, specifically mental capacity defenses, to contracts containing arbitration provisions.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.49
• /
• pp.61-86
• /
• 2011

Korea Supreme Court has given thirty-nine time's judgments on enforcement of Arbitral awards for thirty-six arbitration cases and made four time's decision on the arbitration cases since Korea arbitration act was enacted in 1966. Most of the arbitration cases appealed to the Supreme Court was to obtain the recognition and enforcement of arbitral awards or to set aside the arbitral awards according to the Korea arbitration Act article 36 and article 37, by reason of (a) a party to the arbitration agreement was under some incapacity under the law applicable to him or the said agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, (b) a party making the application was not given proper notice of the appointment of the arbitrator or arbitrators or of the arbitral proceedings or was otherwise unable to present his case (c) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, 5 cases of these arbitral awards were refused to obtain the enforcement of Arbitral awards and have been cancelled finally by the Supreme Court only by the New York Convention of 1958.

• Journal of Arbitration Studies
• /
• v.15 no.1
• /
• pp.3-26
• /
• 2005

Since the Agreement on Commercial Arbitration was signed by the Governments of South and North Korea last year, there has been quite a few discussions on the way for implementing the Agreement in both public and private sectors. The Department of Justice of South Korea was quite active in making the draft of arbitration rules representing the South Korean views in alliance with the Department of Reunification of South Korea and recently held an informal seminar to preview their draft. On the other hand, the Korea Arbitration Association, a main body of commercial arbitration which are composed of professors and lawyers, were carefully watching the steps and the draft made by the Department of Justice. The reasons are to assure that not only shall the commercial arbitration rules comply with comment norms of international arbitration but shall it be made to meet the needs of enterprises investing in the Special Economic District of Kaesung City in North Korea. The concerns of the Korea Arbitration Association can be accomplished if the Department of Justice would modify the provisions pointed out in the seminars. Five general principles shall be brought into the attention in promulgating the commercial arbitration rules. First, it should comply with the Agreement on Commercial Arbitration signed by South and North Korea. Second, it should accept common rules contained in UNCITRAL arbitration rules. Third, it should boost the promptness of proceedings when a case was filed. Fourth, it should feature unique aspects of trade between South Korea and Korea by differentiating it from purely international trade between a country and a country. Lastly, it should combine the respective rules of both South and North Korea, currently in effect. With the above five principles accomplished, it should be noted that the Agreement on Commercial Arbitration the upper authority of arbitration rules, mandates the following features. It declared that arbitration be processed by three arbitrators. Single arbitrator is not permitted. Arbitration can be adopted even if an arbitration clause does not exist in an agreement by the parties, provided that the dispute arose out of the scope of the Agreement on investment Guarantee signed by South Korea and North Korea. It excluded quick and simplified procedures even if the amount of claim in arbitration is minimal. All the procedures should take a formal procedure. It let the double administration offices operate. One is to sit in Seoul of South Korea and the other is to sit in Pyongyang of North Korea. This would intimidate the fastness of procedures. With the above principles and the features considered, each provision in the draft by the Department of Justice should be reviewed and suggested for change.

• Journal of Arbitration Studies
• /
• v.23 no.4
• /
• pp.55-76
• /
• 2013

This study aims to analyze the main features of Mongolian arbitration system compared with Korean Arbitration Law which was revised under the UNCITRAL Arbitration Model Law. On the basis of this comparative study, certain differences are suggested: First, the environment of Mongolian arbitration is still insufficient in terms of its operation and usage at the international level. Second, the Mongol National Arbitration Court has established Ad-hoc Arbitration Rules and has promoted Ad-hoc Arbitration although it is an institutional arbitration organization. Third, the arbitration objects are defined as the types of tangible and intangible assets in Mongolia which are different from those of the Korean Arbitration Law. Accordingly, court and officer disputes, family disputes, labor-management relations, and criminal matters are covered by the arbitration objects. Fourth, Mongol Arbitration Law specifies the following persons disqualified for arbitrator appointment: the member of the Constitutional Court, judge, procurator, inquiry officer, investigator, court decision enforcement officer, attorney, or notary who has previously rendered legal service to any party of the disputes, and any officials who are prohibited by laws to be engaged in positions above the scope of their duties. Fifth, the arbitrator selection and appointment criteria should be documented, and the arbitrator should have the ability to resolve the disputes independently and fairly and achieve concord from both parties. Sixth, if there is no agreement between the parties, the arbitration language should be Mongolian, and the arbitral tribunal has no power to decide on it. Seventh, despite the agreement for a documentary hearing between the parties, there should be provided opportunities for an oral hearing if either of the parties requires it. Eighth, if the parties do not understand the language of the arbitration, the parties can directly ask the translation service. They should also keep secrets in the process of arbitration. Ninth, the cancellation of arbitral award is allowed by the application of the parties, not by the authority of the court. Except for the nine differences above, the Mongolian arbitration system is similar to that of the Korean Arbitration Law. This paper serves to contribute to the furtherance in trade relationship between Mongolia and Korea after the rapid and efficient resolution of disputes.

• Journal of Arbitration Studies
• /
• v.16 no.2
• /
• pp.51-88
• /
• 2006

The obligation on a national court to recognize and enforce arbitral awards as provided in Article III New York Convention, which both Korea and China have ratified, is subject to limited exceptions. Recognition and enforcement will be refused only if the party against whom enforcement is sought can show that one of the exclusive grounds for refusal enumerated in Article V(1) New York Convention has occurred. The court may also refuse enforcement ex officio if the award violates that state's public policy. This article explores the circumstances where arbitral awards may be refused enforcement under the Korean and Chinese arbitration laws. It first analyzes the relevant statutory provisions. In Korea and China, which have adopted the UNCITRAL Model law, the grounds of challenge are exhaustively defined within their respective arbitration laws. According to their arbitration laws, an arbitral award may be set aside if a party making the application proves that (i) a party to the arbitration agreement was under some incapacity or the agreement is not valid under the applicable law, (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case, (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration, or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. An arbitral award may also be set aside ex officio by the court if the court finds that (i) the subject-matter of the dispute is not capable of settlement by arbitration under the applicable law or (ii) the award is in conflict with the public policy. This article then reviews relevant judicial decisions rendered in Korea and China to see how the courts in these countries have been interpreting the provisions specifying the grounds for challenging arbitral awards. It concludes that the courts in Korea and China rarely accept challenges to arbitral awards, thereby respecting the mandate of the New York Convention.