• Journal of Arbitration Studies
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• v.26 no.3
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• pp.27-50
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• 2016

International arbitration as a dispute resolution mechanism in Asia is growing in popularity. Singapore has long been acknowledged as a regional arbitration center but Korea is now facing an increased demand as an arbitration center as well. As Singapore competes with Hong Kong and other international arbitration centers, and as Korea tries to become an alternative to Singapore, both Singapore and Korea have updated their arbitral laws and arbitration rules to reflect the current international arbitration trends. This paper examines the recent changes in the arbitration laws of Singapore and Korea, with an emphasis on recent changes in Korean arbitration laws that are designed to increase Korea's popularity as a regional arbitration center. Though Korea's reputation as an arbitration center is increasing, it is still not viewed as a major arbitration service provider. It is against this backdrop that Korea's international arbitration laws and rules will be viewed, with suggested changes to increase Korea's reputation as not only a regional hub but a center of international arbitration.

• Journal of Arbitration Studies
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• v.21 no.3
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• pp.21-54
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• 2011

International commercial arbitration has established itself as the primary dispute resolution mechanism for international business transactions. Certainly, there are commonly-accepted standards that have evolved to reflect an internationally-harmonized approach to issues relating to the taking of evidence. This is reflected in International Bar Association("IBA") Rules for Taking of Evidence in International Evidence("IBA Rules"). This IBA Rules were revised in 2010. Designed to assist parties in determining what procedures to use in their particular case, IBA Rules present some of the methods for conducting international arbitration proceedings. Parties and arbitral tribunals may adopt IBA Rules in whole or in part - at the time of drafting the arbitration clause in a contract or once an arbitration commences - or they may use them as guidelines. They supplement applicable national laws and institutional or ad hoc rules. The IBA Rules were an ambitious undertaking, designed to overcome fundamental cultural differences relating to the taking of evidence under different national court systems. While it is difficult to assess how frequently the IBA Rules are actually adopted by parties, it is fair to say that they have had a considerable influence on the practice of taking evidence in international arbitration. This article mainly describes the essential provisions of IBA Rules, as revised in 2010, including but not limited to production of document, witnesses of fact, party-appointed experts, and tribunal-appointed experts. It also provides a comparison of relevant procedural rules of civil law and common law systems to each of the above mentioned provisions. It is important for arbitration practitioners to understand the differences in the taking of evidence under civil law and common law systems, respectively. This article will be helpful for practitioners and academics not only to understand the revised IBA Rules themselves but also to prepare for, and adequately deal with, the frictions that may arise as a result of the differences in approach for taking evidences. Indeed, so prepared, the arbitration practitioner will be able to anticipate the expectations, perceptions and the conduct of the parties, their counsel and the tribunal members.

• Journal of Arbitration Studies
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• v.26 no.2
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• pp.67-89
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• 2016

An ADR arbitration system has a necessary value in the sports industry for settlement of disputes. Sports disputes should be resolved independently by enacting internal regulations within the basic principles of national law rather than treated as a civil action. If the dispute is not fair and transparent, it may cause distrust. Because an arbitration system has values such as speed, flexibility of economic decisions, professionalism of arbitrator and confidentiality of arbitration-related information, the efficiency of the arbitration system for conflict resolution has emerged recently. We have to assign sports experts to reactivate sports arbitration commission committees which existed from 2006 to 2009 in Korea. Many countries, such as the UK, USA, Canada, New Zealand, Hungary, the Netherlands, Poland, Germany, and Japan, which attain advancement of sports and the International Court of Arbitration establish and run their own sports arbitration agencies. However, Korea disbanded its sports arbitration commission committee for political and economic reasons. In 2012, after their disbanding, athlete Kim Yeon-kyoung came into conflict with Heungkuk Life over terms of free agent acquisition and international transfer certification. Finally they were able to settle those political conflicts. However if there had been related laws in Korea, they could have resolved those problems easily without international disputes. Practically, it would have been almost impossible for Kim Yeon-kyoung to win the dispute. But her problem became an issue after the London Olympics, so she could win. Although it is well for her to take an active role on the international stage, it left much to be desired on account of the intervention of political circles in order to resolve the conflict. If the sports arbitration commission committee in Korea had still been active, it could have come to a peaceful settlement domestically. Therefore we have to reestablish a Korean sports arbitration committee centered around experts of sports law.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.28
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• pp.91-117
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• 2005

The purpose of this paper is to examine practical and legal considerations in the choice of the "Seat of Arbitration". As the selection of the "Seat of Arbitration" in an international commercial contract is vital both judicially and practically, so to speak, in terms of enforceability of award, judical interference in arbitration proceedings, relative convenience and expense, and the selection of arbitrators, the selection should be carefully considered and examined. In case of institutional arbitration, when the arbitration clause does not nominate the seat, the administrator or the secretariat of the institution or the arbitrator tribunal would usually determine the seat. On the contrary in case of ad hoc arbitration, Unless otherwise agreed by the parties, the "Seat of Arbitration" would be determined according to the rules which are selected by parties or their arbitrators. To avoid confusing situation about the selection of the seat, this writer would like to recommend ICC or LCIA with each Standard Arbitration Clause. If the parties want any national arbitration institution because of the expenses incurred in international institution, AAA or CEPANI is recommendable in terms of the reputation, operating system and recognized performance. Specially ICC Court of Arbitration usually examines the award before it is issued, so the enforceablity would go up. Thus when the parties lay down the arbitration clause in their contract they should confirm whether the "Seat of Arbitration" is fixed or not. If not, at least they should examine the arbitration rules which would be applied, and know in advance how the seat be determined.

• Journal of Arbitration Studies
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• v.21 no.2
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• pp.27-46
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• 2011

In the intellectual based society of the 21th century, intellectual property of nation and enterprise management has been the key element of nation's competitiveness and development. Therefore in countries like Korea, China, and many other countries, intellectual property of advancement strategy are being constructed and intellectual properties are protected at national level. Top priority task of protecting the intellectual property is to efficiently resolute intellectual property right disputes. Considering the nature of intellectual property right and arbitrage system, arbitration to solve intellectual property disputes is realistically the best method. However, not all cases of them are qualified. In order to relieve the intellectual property disputes through arbitration, qualification must be obtained. During the process, generally and globally, intellectual property right dispute is evaluated by three parts, intellectual property right contract dispute, intellectual property right violation dispute, and intellectual property right validity dispute. Based on UN's "Convention on the Recognition and Enforcement of Foreign Arbitral Awards Agreement" in 1958, June 10th, in New York, both arbitrage organization and judgment can be approved in both Korea and China countries. However, as of today, there is a big gap of arbitration qualification between two countries, which can be troublesome if intellectual property right disputes arise. For instance, in Korea, intellectual property right contract disputes and intellectual property right violation disputes are both generally accepted as arbitration qualification. However for intellectual property right validity dispute, arbitration qualification is only accepted for non-registered intellectual property as in copyright entity. It does not apply to other registered intellectual property right as in patents. In China, arbitration qualification is accepted for intellectual property right contract dispute, and also accepted for intellectual property right violation dispute to copyrights but restricted to others. As for intellectual property right validity dispute, arbitration qualification is completely denied. Therefore, when there is an intellectual property right dispute between Korea and China, the biggest problem is whether China will accept arbitrage judgments made in Korea. Theoretically, arbitrage judgement made in Korea should be also accepted in China's court. However, considering the criticism of China's passive nature of arbitration qualification for its own local intellectual property right disputes, it's very unlikely they'll actively accept arbitrary judgment made in foreign countries. Korea and China must have a more open minded approach for intellectual property disputes and arbitration qualification. Base on WTO's Intellectual Property Right Agreement, it's being defined as private right. Therefore, sovereign principle should be the basic principle of solving intellectual property right disputes. Currently, arbitration qualification is expanding internationally. So both Korea and China must also follow the trend expand the arbitration qualification with a more open minded and forward looking approach, for the good of intellectual property disputes.

• International Commerce and Information Review
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• v.16 no.5
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• pp.67-86
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• 2014

The commercial arbitration is considered an effective and rapid means in solving problems and finding solutions for disputes between the business partners. For the development of commercial arbitration, there is a need to study arbitration in practice as well as in theory. This paper analyse the situation of commercial arbitration system in Pakistan both with respect to domestic laws and international laws applicable in Pakistan. The Arbitration Bill 2009 aims to consolidate law relating domestic arbitration, international commercial arbitration, recognition and enforcement of foreign arbitral awards as well as settlement of international investment disputes. Pakistan while defending investment claims and in order to restore investor's confidence, in 2011, Pakistan introduced a law to secure foreign investments. This study explains the relationship of old and new Pakistani arbitration laws and elaborates the changes brought about by the new enactments and gives a comprehensive analysis of Pakistani arbitration laws, rules and procedures dealing with arbitration agreements and awards. In the absence of relevant trade information in Pakistan, this paper is designed to meet the needs of a Korean international trade scholars to obtain an understanding of Pakistani commercial arbitration system quickly.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.64
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• pp.65-97
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• 2014

Arbitration is the dispute methods for speedy and economic resolutions in international commercial areas. In maritime disputes cases in East Asia, Korea and Japan are the regional benefits to cover and deal with the maritime cases on arbitration. And Korea and Japan are the competitive maritime industry for heavy shipbuilding industry, cargo carrier, processing and transhipment service on ports, and ship financial services in national competitive areas. Japan is the Tokyo maritime arbitration commission(TOMAC) as an uniquely capable of dealing with arbitrations involving problems arising in the sea field. TOMAC provides amended its arbitration rules 2014 aiming at matching with the maritime disputes circumstances with three maritime arbitration rules as ordinary rules, simplified rules and the rules of small claims arbitration procedure. KCAB however, as the unique commercial arbitration board in Korea is dealing on all of the commercial disputes on only the international commercial arbitration rules in 2011. Though KCAB is dealt with maritime dispute cases on international arbitration rules in Korea, it is small and simple compared with TOMAC in Japan. Maritime disputes are highly complicated and embroiled with multi-parties contract and subcontracts arising under contracts relating to bills of lading, charter parties, sale and purchase of ships, shipbuilding, ship financing and so forth. This paper is to provides a discussion and comparison on recently arbitration rules focus on the maritime aspects on Korea and Japan. We need to consider to make an independent and special institute and maritime arbitration rules including the multiparty consolidation and med-arb provisions for handling the disputes and resolution of maritime conflict cases in Korea.

• Journal of Arbitration Studies
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• v.32 no.1
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• pp.25-42
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• 2022

The modern arbitration practice recognises the need for a faster and simplified procedural framework for international disputes with fairly low amounts at stake. This has driven several institutions to expand their offer of procedural guidelines with a simplified set of rules that would fit this purpose. Expedited arbitration is increasingly used by parties and is growing in popularity. The basic idea behind establishing expedited arbitration rules is to create the possibility for the parties to a dispute to agree on a simplified and streamlined procedure and to have an arbitration award issued within a short period. The associated cost savings for the parties is another benefit. The importance of developing rules for expedited dispute resolution has recently also been considered by the UNCITRAL Working Group II, in light of the "increasing demand to resolve simple, low-value cases by arbitration" and "the lack of international mechanisms cope with such disputes." As a result, the UNCITRAL 2021 Expedited Arbitration Rules (UNCITRAL EAR) took effect on September 19, 2021. The EAR was adopted by the Commission on 21 July 2021 and, next to UNCITRAL's well-known instruments like the Arbitration Rules (UAR) and the Model Law, represent another chapter in the Commission's impactful work in the field of international arbitration. Overall, the UNCITRAL EAR has great potential to meet the need for more flexible and efficient arbitration proceedings, primarily because they provide the tribunal with strong managerial powers while still leaving room for consultation with the parties. However, parties must remember that not all disputes may be suitable for expedited arbitration, and disputes that are complex or have the possibility of being joint or consolidated may not benefit from simplified procedures and tight deadlines. This article will outline the core features and characteristics of the UNCITRAL EAR.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.459-488
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• 2004

General interest in the out-of-court dispute resolution system are mounting in Korea, and the spread of ADR(alternative dispute resolution) is the worldwide trend. In addition, it was confirmed that the resolution of disputes by ADR such as the decision based on arbitration made by the Prime Ministerial Administrative Decision Committee is no longer in exclusive possession of the civil case. The activation of ADR could lead to the smooth agreement between parties by getting away from the once-for-all mode of decision such as the dismissal of the application or the cancellation of disposal and the like in relation to administrative cases for the years. In consequence, it is anticipated that the administrative litigation that applicants have filed by not responding to the administrative decision would greatly reduce in the future. But, it would be urgent to provide for the legal ground of the ADR system through the revision of related laws to take root in our society because ADR has no legal binding power relating to the administrative case due to the absence of its legal grounds. The fundamental reason for having hesitated to introduce ADR in relation to the administrative case for the years is the protective interest of the third party as well as the public interest that would follow in case the agreement on the dispute resolution between parties brings the dispute to a termination in the domain of the public law. The disputes related to the contract based on the public law and the like that take on a judicial character as the administrative act have been settled within the province of ADR by applying the current laws such as the Civil Arbitration Law, Mediation Law, but their application to the administrative act of the administrative agency that takes on a character of the public law has been hesitated. But as discussed earlier, there are laws and regulations that has the obscure distinction between public and private laws. But there is no significant advantage in relation to the distinction between public and private laws. To supplement and cure these defects it is necessary to include the institutional arrangement for protection of the rights and benefits of the third party, for example the provision of the imposition of the binding power on the result of ADR between parties, in enacting its related law. It can be said that the right reorganization of the out-of-court dispute resolution system in relation to the administrative case corresponds with the ideology of public administration for cooperaton in the Administrative Law. It is high time to discuss within what realm the out-of-court dispute resolution system, alternative dispute resolution system, can be accepted and what binding power is imposed on its result, not whether it is entirely introduced into the administrative case. It is thought that the current Civil Mediation Law or Arbitration Law provides the possibility of applying arbitration or mediation only to the civil case, thereby opening the possibility of arbitration in the field of the intellectual property right law. For instance, the act of the state is not required in establishing the rights related to the secret of business or copyrights. Nevertheless, the disputes arising from or in connection with the intellectual property rights law is seen as the administrative case, and they are excluded from the object of arbitration or mediation, which is thought to be improper. This is not an argument for unconditionally importing ADR into the resolution of administrative cases. Most of the Korean people are aware that the administrative litigation system is of paramount importance as the legal relief for administrative cases. Seeing that there is an independent administrative decision system based on the Administrative Decision Law other than administrative litigation in relation to administrative cases, the first and foremost task is the necessity for the shift in thinking of people, followed by consideration of the plan for relief of the rights through the improvement of the administrative decision system. Then, it is necessary to formulate the plan for the formal introduction and activation of ADR. In this process, energetic efforts should be devoted to introducing diverse forms of ADR procedures such as settlement conference, case evaluation, mini-trial, summary jury trial, early neutral evaluation adopted in the US as the method of dispute resolution other than compromise, conciliation, arbitration and mediation

• International Commerce and Information Review
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• v.19 no.2
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• pp.169-190
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• 2017

The purpose of this article by looking into the international commercial arbitration system of China is to provide solutions regarding commercial disputes that may occur in trade between China and Korea. For the research, literature review based on the Chinese Arbitration Law and CIETAC Arbitration Rules was employed. According to the research, the arbitration system of China applies partially differentiated legislation between domestic and international arbitration rules, unaccepting any ad-hoc arbitration, a limitation to the party autonomy, a deficiency of independence given to the arbitral institution, the participation of jurisdiction on arbitration is severe and it brings hardships in the execution of arbitral award. Beside these, in China's arbitral institution the jurisdiction directly progresses adjustments during the arbitration procedure and the following result is written as the award. Thus, the research is expected to provide legal and practical solutions to the commercial dispute with Chinese companies by looking into the main contents of legislations of the international commercial arbitration system in China.