• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.46
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• pp.381-406
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• 2010

The enforcement of international arbitration raises a variety of procedural and related issues in national and international arbitral laws. In addition to the problems it is not easy to understand the rights and enforcement of interim measures by arbitral tribunal. Many countries and international rules allow the arbitral tribunal to submit the interim measures applied by a dispute party. However, interim measures are not recognised and enforced by itself in international commercial arbitration. It has not been completed in the rules of arbitration nationally and internationally. This is the reason why the confirmation of international and national laws is important to effect interim measures practically. In the case of Korean arbitral laws do not include articles of enforcement of interim measures even permit rights of decision of interim measures by arbitral tribunal in the national arbitral laws improperly and unreliably. This paper discuses the deficits of enforcement of interim measures which is submitted the type of award by the arbitral tribunal. The paper also points out and refers the revised model law of arbitration by UNCITRAL in 2006 which was changed to allow the interim award and should be imposed its enforcement of any types of interim measures by the arbitral tribunal in international commercial arbitration.

• Journal of Arbitration Studies
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• v.31 no.1
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• pp.55-81
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• 2021

Awarding interest in international arbitration remains one of the most challenging areas for tribunals and parties given the myriad of issues that arise. This article seeks to provide an overview of how international arbitral tribunals grant delay interest. It reviews the various issues that international arbitral tribunals face concerning pre-award and post-award interest, determining the appropriate interest rate, surrounding simple or compound interest, and the complex issue of choice of law. A comparative context is provided by surveying the laws of major jurisdictions from both the common law and civil law and the regulations of leading arbitral institutions. It concludes with a review of the law, jurisprudence, and practice in Korea related to delay interest and how Korean tribunals under the KCAB Domestic and International Rules have determined delay interest in recent years.

• The Korean Society of Law and Medicine
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• v.13 no.1
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• pp.295-329
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• 2012

A medical malpractice case requires special legal protection, considering its characteristics, such as seriousness and long term effects of its damages, medical information asymmetry between practitioners and patients, and difficulties in realization of liability. Taking the points above into consideration, Medical Malpractice Arbitration Act of 2012(MAA) has legislative intent to protect the rights of the injured from medical malpractice, while protecting the stability of medical practice by providing arbitration as an alternative dispute resolution. However, constitutional review is required for one new scheme of compensation for medical injuries during delivery, which is implemented in MAA of 2012, especially with regard to freedom to exercise occupation, property, equality under the Constitution. Two important aspects are 1. according to the law, absolute liability applies to compensation for damages during delivery without negligence of practitioners; and 2. the practitioner bears some portion of the cost, 30% in the law above. This article aims to analyze this new institution in various aspects of the Constitution, and, as a result, it does not comply with constitutional criteria.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.35
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• pp.101-124
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• 2007

This paper purposes to examine the setting aside and the refusal of enforcement of arbitral awards and their implications for practitioners. The aim of challenging an award before a national court at the seat, or place, of arbitration is to have it modified in some way by the relevant court, or more usually, to have that court declare that the award is to be disregarded (i.e. "annulled" or "set aside") in whole or in part. If an award is set aside or annulled by the relevant court, it will usually be treated as invalid and accordingly unenforceable, not only by the courts of the seat of arbitration but also by national courts elsewhere. This is because, under both the 1958 New York Convention and the UNCITRAL Model Law, the competent court may refuse to grant recognition and enforcement of an award that has been "set aside" by a court of the seat of arbitration. The New York Convention set out various grounds for refusal of recognition and enforcement of an arbitration award. The provisions of the Model Law governing recognition, enforcement or setting-aside of awards are almost identical to those set out in the Convention. Especially, the New York Convention and the Model Law state that an arbitral award may be refused and set aside if a national court of the place of arbitration finds that the award is in conflict with the public policy of its own country. Each state has its own concept of what is required by its "public policy". It is possible to envisage, for example, a dispute over the division of gaming profits from a casino. In many states, the underlying transaction that led to the award would be regarded as a normal commercial transaction and the award would be regarded as valid. Indeed, it is a consistent theme to be found in the legislation and judical decision of many countries. If a workable definition of "international public policy" could be found, it would provide an effective way of preventing an award in an international arbitration from being set aside and refusal for purely domestic policy consideration.

• Journal of Arbitration Studies
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• v.25 no.3
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• pp.3-31
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• 2015

This paper sets out a multi-dimensional approach that parties drafting a "hybrid clause" for their arbitration agreement can adopt, for purposes of maximizing enforceability, taking into account the multi-jurisdictional interplay between the seat Court, the governing law and the enforcement Court(s), as well as mandatory rules that can be present in the lex arbitrii, the governing law, and/or the law of the enforcement for a. This paper draws on both the co-authors' practice experience, as well as first principles of party autonomy in light of mandatory rules, based predominantly on the scholarship of Briggs and Nygh.

• Journal of Arbitration Studies
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• v.33 no.3
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• pp.3-30
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• 2023

This article provides an overview of the state of attorney-client related privilege and confidentiality in Korea. It reviews the statutory framework, and how Korean courts have analyzed the privilege and confidentiality related to attorneys and their clients. It then examines the legislative initiatives Korea is currently debating with regard to adopting a more common law-style attorney-client privilege (ACP). If adopted, the new legislation will mark a significant milestone in providing guidance on how communications between attorney and client will be treated. Its impact in the context of international arbitration practice and law related to Korea is explored.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.125-154
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• 2012

The International Chamber of Commerce (ICC) has published revised rules of arbitration, which come into force on 1 January 2012 (the ICC Rules 2012). The ICC Rules 2012 apply to all arbitrations commenced on or after 1 January 2012, unless the parties have agreed to submit their arbitration to the rules in effect on the date of their arbitration agreement (Article 6(1)). The ICC Rules 2012 explicitly require both the arbitrators and the parties to make every effort to conduct the arbitration in an expeditious and cost-effective manner. The changes will force participants to define more aspects of their claims and outline the merits of the dispute earlier on in the process. The Rules also contain new penalties for behaving in a way that undermines the process's efficiency. The new Rules permit the tribunal, when making allocating costs, to take into account the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner. Entirely new provisions relate to the emergency arbitrators, case management, and multi-party arbitrations. The ICC Rules 2012 take into account developments in arbitration practice and procedure, and in information technology, since the last revision of the rules in 1998, the aim being to provide modern and flexible procedures that promote efficiency in the arbitral process.

• Journal of Arbitration Studies
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• v.13 no.1
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• pp.73-97
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• 2003

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.3-20
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• 2010

Traditionally, finality has been regarded as one of virtues of arbitration. However in many cases absence of appeal process in arbitration is also a factor deterring people from choosing arbitration. Even though unsatisfied party may resort to a court for annulment of an award, it is allowed only when there are procedural defects. When there are substantive defects in matters of fact or matters of law, it is not easy or almost impossible to bring the case on the table again. The introduction of arbitration appeal process has been discussed in international arbitration fora, and some countries have already been adopting appeal process. Realizing this trend, it is time for us to consider adopting similar appeal process. Arbitration being based on the party autonomy, there's no good reason to prohibit appeal when the parties agree to do so. Arbitration appeal should be allowed within arbitration system itself, rather than resorting to a court, so that many virtues of arbitration can be maintained in the appeal. In designing an arbitration appeal system, following measures should be considered: minimum amount in dispute to trigger the right of appeal should be set in order to reduce the volume of appeal; losing appellant should be responsible for the legal cost of his opponent in order to deter non-meritorious appeals; time limits on initial appeal application and subsequent briefs should be set in order to accelerate appeal process; and, appeal tribunals should be composed of more experienced arbitrators in order to provide more accurate award. If we are equipped with a well designed appeal process within arbitration system, Korea will be able to emerge as an attractive international arbitration forum.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.55
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• pp.63-93
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• 2012

The purpose of this paper is to examine the consideration factors, from both parties' perspective, to select the most appropriate arbitral institution when they inset an arbitration clause in their contract. Accordingly, the author analyzed the advantages of institutional arbitration compared to non-institutional arbitration. The typical advantages of institutional arbitration would include: $\bullet$ Benefits of using an established set of rules $\bullet$ Services provided by the institution $\bullet$ Low risks of obstruction $\bullet$ Enhancement of the possibilities of enforcement $\bullet$ Forecast of the estimated cost $\bullet$ Specially useful for existing disputes Next, this author examined the consideration factors when selecting the institution in respect of the following factors: $\bullet$ Institution's arbitration rules $\bullet$ Institution's rule regarding the appointment of arbitrators $\bullet$ Ability of administrators of each institution $\bullet$ Reputation of the arbitral institution and the likability of enforceability of its award $\bullet$ Cost $\bullet$ Choice of the arbitral institution in relation to the choice of place of arbitration Finally, this author reviewed Model Arbitration Clause of major international or local Institutions, including ICC, AAA, LCIA, KCAB, CIETAC, ICSID and WIPO. Further examination was given to the selection of the numbers of the arbitral tribunal, the seat of arbitration and the language of arbitration, according to the designated articles in each institution's arbitration rules.