• 한국중재학회지:중재연구
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• 제34권1호
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• pp.3-26
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• 2024

"Arbitration" is a procedure to settle a dispute over property rights or disputes based on non-property rights that the parties can resolve through a reconciliation, not by a judgment of a court, but by an award of an arbitrator, and is a kind of Alternative Dispute Resolution(ADR). Arbitration is the most representative and efficient ADR system in many fields, so by activating it, disputes can be resolved smoothly and ultimately, and social costs caused by a heavy increase in lawsuit can be reduced. Arbitration costs are often evaluated as 'cheap', but in reality, they can be similar to or exceed litigation costs. Nevertheless, unlike the Civil Procedure Act, which stipulates the litigation aid system for those who are hard to pay litigation costs, the Arbitration Act or the Arbitration Industry Promotion Act does not have the arbitration aid system for those who are hard to pay arbitration costs. However, considering ① the utility of arbitration compared to other dispute resolution procedures, such as litigation, ② the possibility of resolving trial delays through vitalizing arbitration, ③ the need to guarantee access to arbitration, ④ the feasibility of revitalizing arbitration by the arbitration aid system, it is necessary to introduce the Arbitration Aid System. To explain the details of the Arbitration Aid System, a person who intends to apply for arbitration or a party who continues arbitration could be the applicant. Regarding the judge, this paper suggests the establishment of a council for arbitration aid to prevent the possibility of prejudgment by the arbitral tribunal. Also, if the council accepts the application for arbitration aid, it would be appropriate for the arbitral tribunal to determine the allocation of arbitration costs considering the decision of the council and to include it into arbitral awards.

• 한국중재학회지:중재연구
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• 제17권3호
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• pp.57-79
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• 2007

Laws regarding to Arbitration in North Korea are Arbitration Act, Foreign Economic Arbitration Act, Regulations on the Foreign Trade Arbitration Commission, Regulation for treatment of cases in Arbitration Commission, Rules of Hearing. North Korea has enacted the laws related to Arbitration including Arbitration Act enacted in 1995 and Foreign Economic Arbitration Act enacted in 1999. In the North Korea's planed economy system, as there will be many disputes among organizations, companies, other Institutions Arbitration Act resolves the disputes to compete the economic plan. North Korea's Arbitration Act is different from Normal Arbitration Acts in particular other socialist states in view of arbitration agreement and selection of arbitrator and functions as the tools controlling the members of North Korea and have the characteristics such as national arbitration system and mixture of criminal trial and governmental control and strict legal control system on violent acts in North Korea's plan and plan regulation. And North Korea's Arbitration Act deals with the civil disputes and limits the parties and subject matter of arbitration. The parties in dispute such as organizations, companies, other Institutions could apply for arbitration to Central Arbitration Body and Provincial (City under the direct control of Government) Arbitration Body and Sectional Arbitration Body. The purpose of this paper is to contribute to the enhancement of the understanding arbitration in North Korea by studying the clauses in the Arbitration Act.

• 무역상무연구
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• 제29권
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• pp.3-37
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• 2006

This writing is for the purpose of investigating the specific character and problem point of China arbitration system which has near 90 years history and overviewing the drift of system improvement which happens recently. The arbitration system of China which traditionally does not acknowledge ad hoc arbitration, unlike most of the other nations that employ The UNCITRAL model law and make it their own legislation, is restrictive to the parties concerned principle of private autonomy considerably. Also the independence of arbitration is delicate, because of a civil characteristic weakness of the arbitral institutions and the intervention of the courts on the arbitration procedure and award. The dual system of domestic and international arbitration which maintains after enforcement of 1994 arbitration law is often to be a primary factor interrupting the development of Chinese arbitration system and making it vulnerable to challenges. The system improvement demand of the recent time reflects this point and makes the arbitration system of China to a international standard rather than now, so it is a desirable direction for China to be as the member of the world economy to be globalization.

• 한국중재학회지:중재연구
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• 제25권2호
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• pp.49-70
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• 2015

There are three categories of arbitration - domestic arbitration, foreign-related arbitration and foreign arbitration. Although the meaning of foreign arbitration and International Commercial Arbitration is different, they are used to mean the same in practice. In fact, there is significant controversy about the meaning of non-domestic arbitration because it is too difficult to distinguish between non-domestic arbitration and domestic arbitration. In the Chinese arbitration system, there are two main laws,Chinese Arbitration Law and Chinese Civil Procedure Law. Chinese Arbitration Law regulates the internal matters, while Chinese Civil Procedure Law regulates the external legal regulations. After the 2012 revised Chinese Civil Procedure Law, a number of laws and regulations have been revised, and almost every Arbitrations Rules have been revised, and will be in effect in 2015. Depending on the nationality of arbitration, the applicable laws will be different. The nationality of arbitration is so important that this paper will pay more attention to it. Although the case in China has no precedent effect, it is so important to the parties that this paper will address it. This paper will analyze the process and the cases of the recognition and enforcement of the award system in China.

• 한국중재학회지:중재연구
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• 제8권1호
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• pp.87-122
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• 1998

This study reports on the Arbitration system in the China International Economic and Trade Arbitration commission (CIETAC) and the International Arbitration problems of Korea and China. The Chines laws including Arbitration laws are influenced by the civil Code system Particulary the German system. China is contracting state of the U N Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958 New York Convention), which became effective in the China April 22, 1987. International Commercial Arbitration is popular in China. CIETAC is the sole International Commercial Arbitration body in China. CIETAC has two sub-commissions, on is shen zhem S E Z and the other in shanghai. The CIETAC rules, are similar to the rules in effect in Countries using a civil Code system. Both an agreement to submit an existing dispute to Arbitration and an Arbitration clause in a contract relating to future disputes are recognizeal as valiad Arbitration agreements. CIETAC has the power to make a decision on disputes concering the validity of the Arbitration agreements, or jurisdiction over a specicific case.

• 한국중재학회지:중재연구
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• 제14권1호
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• pp.103-132
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• 2004

This paper suggests the establishment of construction arbitration tribunal in The Korean Commercial Arbitration Board or the construction arbitration institution under the Ministry of Construction for effective system of Construction Arbitration. Our conclusion tells that it is desirable to establish construction arbitration institution under the Ministry of Construction upon the result of analyzing some factors such as participation of construction workers, sophistication of construction field. In contrast, it is more desirable to establish the construction arbitration tribunal in The Korean Commercial Arbitration Board when we consider the feasibility, sophistication of ADR, organization, rules, arbitrator availability, internationalization Therefore, our final suggestion is to establish construction arbitration tribunal in The Korean Commercial Arbitration Board for effective system of Construction Arbitration. More detailed are as follows: . Establishment of the committee for resolution of construction disputes consisting of experts and specialists from construction-related institution, union, law firm and universities. 1 The committee manages finance, rules on construction arbitration and arbitrator members. 1 Establishment of intermediation team, construction arbitration team, housing arbitration team, real estate arbitration team under the construction arbitration tribunal . Establishment of a committee of arrangements consisting of experts and specialists from The Korean Association of Arbitration Studies, Korea Arbitrators Association, The Korean Commercial Arbitration Board, The Construction Association of Korea in order to accomplish effective system for construction arbitration.

• 한국중재학회지:중재연구
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• 제17권2호
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• pp.101-124
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• 2007

The legal systems and open-door policies to foreign affairs in North Korea have been followed by those of China. Whereas an arbitration system of South Korea accepted most parts of UNCITRAL Model Law, North Korea has succeeded to an arbitration system of a socialist country. China, under the arbitration system of socialist country, enacted an arbitration act reflected from UNCITRAL Model Law for keeping face with international trends. We have used these three arbitration system as a tool for analyzing an arbitration system in North Korea. With an open-door policy, North Korea and China enacted an arbitration act to provide a legal security. Therefore, the core parts of arbitration system in North Korea and China are based on a socialist system while those of South Korea is on liberalism. So, North Korea and China enacted an arbitration act on the basis of institutional arbitration, on the other side, South Korea is based on ad-hoc arbitration. Because of these characters, in terms of party autonomy, it is recognized with the order as South Korea, China and North Korea. Also North Korea enacted separate 'Foreign Economic Arbitration Act' to resolve disputes arising out of foreign economies including commercial things and investments. There are differences in arbitration procedures and appointment of arbitrators : South Korea recognizes parties' autonomy, however parties should follow the arbitration rules of arbitration institutes in North Korea and China. According to an appointment of arbitrators, if parties fail to appoint co-arbitrators or chief arbitrators by a mutual agreement, the court has the right to appoint them. In case of following KCAB's rules, KCAB secretariats take a scoring system by providing a list of candidates. A party has to appoint arbitrators out of the lists provided by arbitration board(or committee) in North Korea. If a party may fail to appoint a chief arbitrator, President of International Trade Arbitration Board(or Committee) may appoint it. In China, if parties fail to appoint a co-arbitrator or a chief arbitrator by a mutual agreement, Secretary general will decide it. If a arbitral tribunal fails to give a final award by a majority decision, a chief arbitrator has the right for a final decision making. These arbitration systems in North Korea and China are one of concerns that our companies take into account in conducting arbitration procedures inside China. It is only possible for a party to enforce a final arbitral award when he applies an arbitration inside North Korea according to International Trade Arbitration Act because North Korea has not joined the New York Convention. It's doubtful that a party might be treated very fairly in arbitration procedures in North Korea because International Trade Promotion Commission controls(or exercises its rights against) International Trade Arbitration Commission(or Board).

• 한국중재학회지:중재연구
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• 제24권1호
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• pp.133-157
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• 2014

To confirm the division of the scope of sports arbitration, the English sports arbitration system will be analyzed as well as the scope of the regulations of the international sports arbitration court. If these forms of sport arbitration are combined with the existing China legal system and sports systems, they will effectively deal with the procedures of sports arbitration and of their linked programs, and clarify the nature of sports arbitration. With regard to the judicial supervision mode, domestic scholars have two theoretical perspectives, "comprehensive supervision theory" and "program supervision theory". Based on analyzing the above theories, the author believes that the opposition between the two is not absolute, as both can reach agreement on the important issue of whether to conduct substantive court examination or not under the premise of party autonomy.

• 한국중재학회지:중재연구
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• 제24권2호
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• pp.161-181
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• 2014

This thesis, which mainly focuses on the characteristics of the Chinese arbitration system, will mainly deal with three characteristics and analyze the causes that directly or indirectly influence them. The first characteristic is China does not recognize ad hoc arbitration. Ad hoc arbitration is the initial form of arbitration, and it occupies an important position in many countries; however, China's judicial system does not recognize it. There are many disadvantages for building a system of ad hoc arbitration in China; i. e., the arbitration system in China is undeveloped and shot-time established, and it lacks social and civil society basis, along with a credit system, which the Western ad hoc arbitration relies on. The second characteristic is the existence of excessive judicial supervision and control over arbitration in China. Judicial supervision over arbitration has been the customary practice in each country of the modern world, but sharp variation exists in the legal stipulations and the courts' attitude toward the standard to be applied in the supervision over arbitration. In China, there has always been a controversy over judicial supervision, and the standards applied in the supervision over arbitration by courts in different regions are less than identical. The last characteristic is the existence of a combination of mediation with arbitration, which is called Arb-Med in China. Such means that in the process of arbitration, the arbitrator may conduct mediation proceedings for the case it is handling if both parties agree to do so. Under the Chinese law, Arb-Med may lead to a binding and enforceable outcome. However, it has several legal disadvantages and almost no country adopts this system. China still insists that this system will go on because Arb-Med was first made in China, and its effect was proven through long-time practice in CIETAC.

• 한국중재학회지:중재연구
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• 제9권1호
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• pp.183-232
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• 1999

The legislative body of The People's Republic of China, the National People's Congress, enacted the first arbitration act in China's history on August 31st, 1994, which took effect on September 1, 1995. The problems revealed through a comparison of China's Arbitration Act with the UNCITRAL model arbitration law were studied as well as the enacting process, background, status and system, important contents, problems of Chaina's Arbitration Act, and the differences between the old arbitration regulations and the new arbitration act. These are all discussed in this paper. The Arbitration Act is the basic act ruling over china's arbitration system: it unified the previously confusing laws and regulations relevant to the arbitration system, and the act brings out fundamental changes in China's domestic arbitration to the level of international arbitration standards. It is possible to view this act as a cornerstone in China's arbitration system. But, as discussed in this paper, there are still a lot of problems with the new act and only a few of the merits which the UNCITRAL model arbitration law has. First, under China's Arbitration Act, parties enjoy autonomy to some degree, but the range of party autonomy, compared to that of the UNCITRAL model arbitration law, is too narrow. Second, because China's Arbitration Act didn't explicitly provide issues which can give rise to debate, a degree of confusion in its interpretation still remains. Third, China's Arbitration Act's treatment of some important principles was careless. Fourth, in some sections, China's Arbitration Act is less reasonable than the UNCITRAL model arbitration law. These problems must be resolved in order to develop China's arbitration system. The best way of resolving these problems for China is to adopt the UNCITRAL model arbitration law. But it is difficult to expect that China will accept this approach, because of the present arbitration circumstances in China. Although it is difficult to accept all the contents of the UNCITRAL model arbitration law, China's legislators and practitioners must consider the problems mentioned in this paper.