• Journal of Arbitration Studies
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• v.27 no.3
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• pp.53-76
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• 2017

Korean businesses, and their legal representatives, have observed the improvements of enforcement of commercial judgments through arbitration over traditional collections litigation in U.S. Courts-due to quicker proceedings, exceptional cost savings and more predictable outcomes-in attaching assets within U.S. jurisdictions. But how are the 2016 interim measures implemented by the Arbitration Act of Korea utilized to avoid jurisdictional and procedure pitfalls of enforcement proceedings in the Federal Courts of the United States? Authors examine the necessary prerequisites of the U.S. Federal Arbitration Act as adopted through the New York Convention, to which Korea and the U.S. are signatories, as distinguished from the Panama Convention. Five common U.S. arbitration institutions address U.S. "domestic" disputes, preempting U.S. state law arbitrations, while this article focuses on U.S. enforcement of "international" arbitration awards. Seeking U.S. recognition and enforcement of Korean arbitral awards necessitates avoiding common defenses involving due process, public policy or documentary formality challenges. Provisional and conservatory injunctive relief measures are explored. A variety of U.S. cases involving Korean litigants are examined to illustrate the legal challenges involving non?domestic arbitral awards, foreign arbitral awards and injunctive relief. Suggestions aimed toward further research are focused on typical Korean business needs such as motions to confirm foreign arbitration awards, enforce such awards or motions to compel arbitration.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.121-150
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• 2006

Under the New York Convention, parties can petition the courts of the United States to confirm foreign arbitral awards. Although there is no definition in the Convention for 'non-domestic' awards, in the United States, federal and state courts read the Convention broadly and interpret this as permitting the enforcing authority to supply its own definition of 'non-domestic' in conformity with its own domestic law. There are a number of federal cases on this point. The court preferred this broad construction of 'non-domestic' awards because it comported with the intended purpose of the Convention, which was entered into to encourage the recognition and enforcement of international arbitral awards. This means that in applying the New York Convention, U.S. courts have responded to the underlying spirit rather than the technical letter of the Convention. In brief, the New York Convention has much broader application in the United States. It is applicable not only to awards rendered outside of the United States, but also to non-domestic awards rendered within United States. As this article suggests, the general attitude towards foreign awards is more pro-enforcement in the United States, whether the award is rendered in favor of the American party or in favor of the foreign party.

• Journal of Arbitration Studies
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• v.28 no.4
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• pp.111-129
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• 2018

The foundation of arbitration is the arbitration agreement between parties. If no agreement to arbitrate exists, the parties should not send to arbitrate their disputes. In the United States, there are no provisions as to arbitrability under the Federal Arbitration Act. Before a court can enforce arbitration, it must first determine arbitrability. The general presumption is that the issue of arbitrability should be resolved by the courts. The question of whether parties have submitted a particular dispute to arbitration raises a question of arbitrability which is an issue for judicial determination unless the parties clearly and unmistakably have provided otherwise. Determining if the parties agreed to arbitrate a dispute involves inquiries into whether there is a valid agreement to arbitrate the claims, and the dispute falls within the scope of the arbitration agreement. Therefore, the purpose of this article is to review how to settle the issue of arbitrability in the U.S. federal courts.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.59-90
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• 2015

Since 1855, the federal courts of the United States have been empowered to assist in the gathering of evidence for use before foreign tribunals. Today, the source of that authority is 28 U.S.C. ${\S}1782$ which permits the courts to order a person "to give [ ] testimony... or to produce a document ... for use in a proceeding in a foreign or international tribunal${\cdots}$ ." It was generally assumed, until the United States Supreme Court's decision of Intel Corp. v. Advanced Micro Devices, Inc. in 2004, that arbitration tribunals were not "foreign tribunals" for purposes of 28 U.S.C. ${\S}1782$. While the issue in Intel did not involve an arbitration tribunal, a statement by the Supreme Court in dicta has called into question the exact parameters of the words "foreign tribunal," resulting in a split of opinion among the federal courts of the United States. This article explores the legislative history of 28 U.S.C. ${\S}1782$, examines the United States Supreme Court decision in Intel, and discusses the split among the courts of the United States regarding the interpretation of "foreign tribunal." The article further surveys emerging issues: is an arbitration tribunal in a case involving foreign parties and seated in the United States a "foreign tribunal"; does agreeing to the use of the IBA Rules on the Taking of Evidence in International Arbitration circumscribe the use of 28 U.S.C. ${\S}1782$; can a party be ordered to produce documents located outside the United States; and is there a role for judicial estoppel in determining whether an application pursuant to 28 U.S.C. ${\S}1782$ should be granted?

• Journal of Arbitration Studies
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• v.28 no.1
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• pp.99-123
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• 2018

Korean businesses engaging in transactions with U.S. entities are increasingly favoring arbitration clauses to address unexpected disputes. How best ought the parties' arbitration contractual terms be drafted to avoid lengthy, protracted and expensive legal disputes? Authors examine the public policy favoring arbitration through the U.S. Federal Arbitration Act. Korean litigants seeking a "Motion to Compel Arbitration" rely on arbitration clauses designed to address four factors U.S. courts use to evaluate the enforceability of arbitration contract clauses. What role does U.S. state court jurisdiction hinder or help Korean businesses contracting with U.S. business entities located within certain boundaries? What is the effect of an arbitration clause that designates the Korean Commercial Arbitration Board in Seoul to arbitrate? All cases analyzed entail Korean business entities. Eleven cases demonstrate the results of seeking motions to compel arbitration in U.S. courts. Three cases illustrate motions to compel arbitration drafted to use the Korean Commercial Arbitration Board in Seoul. The results provide Korean businesses and legal practitioners insight into addressing the specific goals of including contractual arbitration clauses to enhance their international commercial interests in the United States.

• International Commerce and Information Review
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• v.10 no.3
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• pp.143-162
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• 2008

The Title 19 of the U.S. Code covers custom duties and is the heart of international trade regulation in the U.S.. Among the provisions in Title 19, is Chapter 4, the Tariff Act of 1930. Under U.S. Antidumping duty law, dumping occurs when `subject merchandise' is imported into the U.S. and sold at less than `fair value.' The administration of U.S. Antidumping duty law is shared between the Department of Commerce('Commerce') and International Trade Commission('USITC'). The U.S. Court of International Trade ("CIT") and the U.S. Court of Appeals for the Federal Circuit ("CAFC") decided the review of antidumping duty ("AD") determinations and administrative review results issued by the Commerce and the USITC, as well as the review of countervailing duty ("CVD") decisions. In Eurodif S.A. v. United States, the CAFC considered the important issue of whether the antidumping and countervailing duty laws apply to sales and purchases of services--in this case, the sale or purchase of enrichment services. Although the federal courts had considered the issue of whether a sale of enrichment services constitutes a sale of goods, the issue had never arisen in the context of the antidumping and countervailing duty laws. Also this is the first time that the Supreme Court has ever agreed to consider an antidumping case.

• Journal of Arbitration Studies
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• v.31 no.1
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• pp.83-105
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• 2021

If aggrieving consumers or employees cannot prove both substantive and procedural unconscionability, many U.S. state courts will enforce arbitration agreements. Additionally, U.S. courts weigh a variety of factors to determine whether an arbitration agreement is substantively unconscionable. For example, U.S. courts have considered one or a combination of the following factors: (1) the fairness of contractual terms; (2) the severity of contractual terms' deviation from prevailing standards, customs, or practices within a particular industry; (3) the reasonableness of goods-and-services contract prices; (4) the commercial reasonableness of the contract terms; (5) the purpose and effect of the terms and (6) "the allocation of risks between the parties." Further, procedural unconscionability characterized by surprise or lack of knowledge focuses on terms that are deceptively hidden in a mass of contract language, the object of another concealment, or imposed in the circumstances involving haste or high-pressure tactics so that they are not likely to be read or understood. This unconscionability doctrine can be applied to a situation where an alcoholic dementia-afflicted older adult is admitted to a nursing home. At that time, because she had alcoholic dementia, which precluded her reading, comprehending, writing, negotiating, or signing of any legal document, her son, who did not understand the adhesion contract, signed the standardized residential contract and the arbitration agreement.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.91-110
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• 2018

Consumers repeatedly make small sum purchases through business-to-consumer contracts, usually without incident. Consumer areas have been increasing; therefore, consumer disputes have been occurring frequently as well. In international consumer transactions, it is not easy to solve consumer disputes by applying the laws of different countries. Resolving disputes by using the consumer arbitration system can be a measure to protect consumers. In the U.S., a class arbitration is being operated as a mixed dispute resolution system of class action and arbitration. Consumer Arbitration has long been a controversial issue in the U.S. It is therefore a lesson for us to examine related cases. A recent U.S. Supreme Court decision, DIRECTV v. Imburgia, was looked into and after a summary of the facts, issues, and opinions and opposing opinions that had a tight controversy, a close analysis was done. The analysis through this judgment is as follows: first, the contraction of consumer protection; second, the expansion of the Federal Arbitration Act scope; third, the class arbitration's restriction; and fourth, the submission of the arbitration fairness act.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.73-86
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• 2011

Today's arbitrations see themselves as the most effective scheme for dispute resolution in a variety of transactional context. While some kind of ADR system was already introduced in Korea as of 2007 with revision of the Consumer Basic Law, consumers' needs in dispute resolution remain unmet. Recently one consumer arbitration case divides the U.S. Supreme Court. Of course, the result of the case is expected to affect tens of millions of arbitration agreements in the States which has the most developed scheme in consumer arbitrations. While Arbitration clauses in adhesion contracts are not automatically held to be substantively unconscionable, Class action waivers are one of the most controversial issues in consumer arbitration. In this study, with the theoretical background of consumer arbitrations general, and contractual defenses against adhesive contracts, reviewed are U.S. federal courts' attitudes toward certain consumer arbitration agreements including the class arbitration waiver. Moreover, several issues in AT&T case are examined for practical implications for consumer dispute resolution. All of these are expected to initiate further research to find some guidelines for the proper status and operation of consumer arbitration here in Korea.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.19-36
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• 2017

This paper reviews and analyzes the U.S. cases and statutes on the writing requirements of arbitration agreement. In order to discuss the legal aspects of writing requirement on arbitration agreement in the U.S., it is necessary to delve into both the contractual aspects of arbitration agreement and statutory specifications of the writing requirements of arbitration agreement. Statute of frauds and parole evidence rule were reviewed and employed to find legal implications on the writing requirement of arbitration agreement. Relevant cases were analyzed to verify how the courts have been responded to the conflicts regarding the validity of the arbitration contract with respect to writing requirement. International treaties absorbed into the U.S legal system were also reviewed and commented to analyze their implications on the writing requirement of arbitration agreement, including the UNCITRAL Model Arbitration Law and the New York Convention.