• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.41
• /
• pp.135-165
• /
• 2009

It is not difficult to understand from laws and practices in arbitration area that arbitrators appointed have as many rights as their duties to do their performing duties especially to participate in the proceeding and deliberations of the arbitral process. However, sometimes can be happened that an arbitrator who was appointed by a party, refuses to participate in the proceeding or resign during the arbitral process. Generally, in the case, it is provided that the arbitrator who fails to act can be replaced by a substitute arbitrator. When it is decided to change an arbitrator, the appointment of an substitute arbitrator is likely to cause time delay, high cost with inconvenience. And also it is to be considered for additional cost and delay from possible need for repeating the hearings that were held at former arbitral tribunal. Sometimes, a party want to delay intentionally the arbitration process by using right for challenging arbitrator or designing with an arbitrator who was appointed by the party. That is why the reason it has been discussed for allowing the truncated tribunal that the remaining arbitrators that is named as truncated tribunal are permitted to complete the proceeding and issue decisions or arbitral awards. Unfortunately there are uncertain views on the validity of arbitral proceeding or recognitions and enforcement of truncated tribunal decisions in international commercial arbitration. In this article it is focusing on discussing truncated tribunal's benefits or barriers and problems through comparing with famous arbitral rules of international arbitral institutes including rules of UNCITRAL, LCIA, KCAB and the revising draft arbitration rule of UNCITRAL.

• Journal of Arbitration Studies
• /
• v.18 no.1
• /
• pp.147-165
• /
• 2008

Appointment of arbitrators is very important in arbitration. As it has been a long laps since Korean peninsula was devided into two parts, South and North, it has come to be too much gaps between South and North in the law, social system, commercial practice and etc.. South Korea is familar to international commercial practice and capitalistic legal system generalized internationally in modern times. On the other hand as North Korea was closed society for a long time, they are not familar to international commercial practice and market economy. In this connection, commercial disputes arising from the transactions between South and North will occur frequently and it will be very difficult to select governing law or commercial practice referred to the disputes. Under the circumstances, when and if an arbitrator from South or North will be appointed as presiding arbitrator in the tribunal composed by three arbitrators, the part from which the presiding arbitrator come will be a majority, and it will be advantageous to the parties came from the part of which the presiding arbitrator come from. Such being the case, sole arbitrator or presiding arbitrator needs to be appointed among foreigner. Otherwise I recommend the tribunal composed by two arbitrators and umpire system. As to arbitrator's fee, as there is a big gap in its economic aspects between South and North, I supposed to need establishing the fund made by corporation with South and North in order to compensate arbitrators from South or abroad for their fee. Finally it is more important to prevent disputes arising from transactions between South and North. In order to prevent the disputes, education for North Korean about international commercial practice and skill to make a contract of international sale of goods and investment are needed.

• Journal of Arbitration Studies
• /
• v.21 no.1
• /
• pp.239-257
• /
• 2011

This article examines the requirements of Article 37 of the ICDR International Arbitration Rules and issues that could arise if a party petitions a U.S. Federal Court to enforce an emergency arbitrator's Article 37 decision to grant pre-arbitration provisional relief. On May 1, 2006, ICDR introduced a new procedure for the granting of emergency arbitral relief under its ICDR Rules. The procedure enables a party to apply for emergency interim relief before the appointment of an arbitrator or tribunal to adjudicate the merits of the dispute. Instead, the application for emergency relief is considered by an emergency arbitrator appointed by the ICDR. In short, the ICDR has quickly appointed emergency arbitrator and resolved a challenge to an appointment within 36 hours. In addition, the emergency decisions have been issued within just a couple of weeks. In particular, we looked at what would happen after Article 37 emergency relief is granted. Based on my examination of U.S. cases on the enforceability of interim awards and orders, We conclude that U.S. courts would enforce Article 37 interim measures, whether they are characterized by the emergency arbitrator as an interim order or award. Where the situation warrants, arbitration executives should embrace and use emergency relief procedure of ICDR Rules.

• Journal of Arbitration Studies
• /
• v.18 no.3
• /
• pp.117-138
• /
• 2008

This study lies on building the International Standardization of China Arbitration System for improving a relationship of mutual trust and the safety trade between China and other worldwide countries, especially, South Korea as their one of the biggest trading partners through the comparative analysis of China and UNCITRAL Arbitration Law. In this analysis, the differences from China and UNCITRAL in arbitration law are like belows ; lack of arbitrator's international mind, the limitation of private property right, prohibition of Ad. hoc arbitration, arbitrator's biased nationalism, localism, and their short specialties. a deficiency of the objectiveness for arbitrator's election, a judgement rejection of claimants by using nonattendance and walkout, impossibility of prior and temporary property custody for execution of arbitration award. etc. For the improvement of the International Standardization of China Arbitration, this paper propose as follows: 1) Extension of private property right, reorganization of tax system, realization of open competition, exclusion of 'Sinocentrism', globalization of arbitration system 2) The abolition of old fashioned bureaucracy with approval for ad.hoc arbitration 3) An education for arbitrator's internationalization, specialty, and to promote legal knowledge 4) A settlement of the third country arbitrators' selection for reflecting interested party's decision by the court in a selection system of arbitration committee. 5) Institutionalization of arbitration judgment that prevent for claimant's avoidance by using a withdrawal and an intentional absent 6) A permission of the right of claimant's court custody directly before the begging of arbitration request for the prevention for destruction of evidence and property concealment 7) Grant of the arbitration tribunal's interim measures of protection for private property preservation to the third party, proof security, prevention from the loss that selling the corruptible goods 8) Improvement of arbitration's efficiency from the exclusion of the obstacles that are forgery, concealed evidence, and arbitrator's bribe taking Lastly, I hope that this study will serve to promote friendly economic relationship between China and South Korea and strive for international equilibrium through the achievement of China Arbitration's International Standardization. I will finish this paper with a firm belief that this will lead to more advanced studies.

• Journal of Arbitration Studies
• /
• v.22 no.3
• /
• pp.215-238
• /
• 2012

This paper is to review the interim measures of arbitral tribunals in international commercial arbitration and to compare the emergency arbitrator systems of international arbitration institutions including the ICDR, SCC, SIAC, ACICA, and ICC. Most arbitration legislation and arbitration rules permit the arbitral tribunal to grant orders for interim measures of protection. Orders for interim measures by the arbitral tribunal are not self-enforcing. However, the revised articles with regard to interim measures of UNCITRAL Model Law of 2006 are regarded to contribute significantly to the effectiveness of interim measures in international commercial arbitration. A party that needs urgent interim or conservatory measures that cannot await the constitution of an arbitral tribunal may make an application for such measures. Major international arbitration institutions have their own rules and provisions for the emergency arbitrator system, which was set forth first by the ICRD in 2006. The application requirements for emergency arbitrators are almost the same. However, there are significant differences in details such as appointments and applications for challenging emergency arbitrators, the process and form of the emergency arbitrator's decision, etc. Therefore, it will be necessary to consider these differences for more desirable emergency arbitrator proceedings in Korea.

• Journal of Arbitration Studies
• /
• v.25 no.1
• /
• pp.47-64
• /
• 2015

Pursuant to Article 109(1) of the Attorney-at-Law Act of Korea, a person, not an attorney-at-law, who receives or promises to receive money, articles, entertainment or other benefits or who gives or promises to give those things to a third party, in compensation for providing or mediating legal services, such as examination, representation, arbitration(emphasis added), settlement, solicitation, legal consultation, making of legal documents, etc. shall be punished by imprisonment with prison labor for not more than 7 years or by a fine not exceeding KRW 50 million or may be punished by both and there is no specific provision on qualification of arbitrator except on nationality of an arbitrator in the Arbitration Act of Korea. Then, the question arises, can any non-lawyer arbitrator who receives arbitrator's fees be punished in accordance with the Attorney-at-Law Act in Korea? To search for an answer for this matter, this paper examines the Arbitration Act or the Civil Procedure Code of 33 major countries in the world and explains a research on the participation ratio of non-lawyer arbitrators in all 360 arbitration cases registered in 2012 at the Korean Commercial Arbitration Board (KCAB).

• Journal of Arbitration Studies
• /
• v.29 no.2
• /
• pp.133-159
• /
• 2019

This paper reviews 2019 new arbitration rules of Japan Commercial Arbitration Association (JCAA). JCAA has amended its Commercial Arbitration Rules, and its Administrative Rules for UNCITRAL Arbitration. Also, it has introduced a new Interactive Arbitrations Rules. These new rules take effect from 1 January 2019. First, principal amendments of JCAA Commercial Arbitration Rules are such as arbitrator impartiality, tribunal secretaries, no dissenting opinions, expedited proceedings, arbitrator fees, administrative fees. Second, JCAA's new Interactive Arbitration Rules compel communication from the arbitral tribunal to the Parties and introduce a system of fixed compensation for arbitrators. Third, JCAA's Administrative Rules for UNCITRAL Arbitration are designed to provide the minimum essentials to allow the UNCITRAL Rules to be overseen by an institution. The only significant updates focus on arbitrator remuneration. This paper presents the intent and some implications of JACC's 2019 new rules for Korean Commercial Arbitration Board (KCAB) arbitration rules. Also, it seeks to provide a meaningful discussion and improvement on the facilitating of arbitration system in Korea.

• Journal of Arbitration Studies
• /
• v.21 no.1
• /
• pp.33-56
• /
• 2011

Korea Supreme Court has cancelled four cases of thirty-nine Arbitral awards made by Korean Commercial Arbitration Board since Korea arbitration act was enacted in 1966. Three cases of them were cancelled by the reason of the arbitrator's disqualification in relation to impartiality or independence and the other to arbitration agreement enable to select the lawsuit or arbitration. When a person is approached in connection with his possible appointment as an arbitrator or has already been appointed as such, he shall without delay disclose all circumstances likely to give rise to justifiable doubts as to his impartiality or independence according to the one of the article 13 of Korean Arbitration Act. Upon being notified of the appointment as an arbitrator, each arbitrator shall immediately disclose in writing to the Secretariat any circumstances which might cause reasonable doubt about impartiality or independence. An arbitration agreement shall be made clearly and in writing not to appeal to the court or to be brought in the court. However most of the korean construction contracts have the arbitration agreement clause enable to appeal to the court or the arbitration on government official's advice. Many of these disputes are resolved by litigation after the precedent(Law case number : 2003da318) set by the Supreme Court on August 22, 2003 between the Korea(government) and the Korea Railroad or abandoned its attempt to arbitration. But each year, about four hundreds of arbitration business transactions were resolved arbitration, the voluntary submission of a dispute to an impartial person or persons for final and binding determination. Arbitration has proven to be an effective way to resolve these disputes privately, promptly, and economically.

• Journal of Arbitration Studies
• /
• v.13 no.1
• /
• pp.207-244
• /
• 2003

There are many parties who connected with contracts like a contract for construction. Dispute arising from the two parties can be souled by themselves. but it grows the necessity of settlement at one effort. The meaning of multiparty arbitration is solution of mixed disputes without inconsistency through multiparty concerned. H the parses wish to settle the disputes by arbitration, they must come to an arbitration agreement. The arbitration agreement is necessary to resolve disputes autonomously, that may be in the form of a separate agreement or in the form of a clause in a contract. More ever it is resonable to view the arbitration agreement as a substantive contract in its legal nature enabling the authority for dispute resolution by the arbitrator. I had argument about who should appoint the arbitrator. That is to say, each party can appoint the arbitrator, otherwise the courts can appoint one. The basis of multiparty arbitration is focused on the factor that the courts may have the right to order the consolidation of arbitration proceedings without consent of the parties. The dispute can be settled by the arbitrators who are appointed. Appointing arbitrator is very important because it affects the party's equality. The right to appoint arbitrator shall be entitled each party in multiparty arbitration. Therefore they can appoint plural arbitrators by mutual agreement. for .reference to Rules of Arbitration of The International Chamber of Commerce, the Court shall appoint a sole arbitrator or three arbitrators in condition. The Arbitration Act of Korea dose not have the clause on multiparty arbitration including the arbitration rules. But if we have the clause enacted, it brings a situation in which both parties gain a benefit.

• Journal of Arbitration Studies
• /
• v.26 no.1
• /
• pp.29-51
• /
• 2016

This paper reviews the Supreme Court decision of the United Kingdom in Jivraj v. Hashwani (2011) concerning the employment issue of arbitrators, falling within the exception of genuine occupational requirement under the Employment Equality (Religion or Belief) Regulations 2003, and nationality of arbitrators. In 2011, the Supreme Court of the United Kingdom delivered its judgment in Jivraj v. Hashwani, unanimously overturning decision of the English Court of Appeal. The facts of this case and the decision of the Court of Appeal have been widely discussed. The decision of the Supreme Court has been met with approval within the international arbitration community in London, having restored the legal position to that prior to the Court of Appeal's ruling. Thus, the Supreme Court unanimously overturned the Court of Appeal's finding that arbitrators are the employees of the arbitrating parties. Arbitrators were held to be genuinely self-employed, and therefore outside the scope of the Regulations or Equality Act(2010). As such, the anti-discrimination provisions are not applicable to the selection, engagement or appointment of arbitrators. Most importantly, the Supreme Court's finding that arbitrators are not employees removes the possibility of challenges to arbitration agreements on the grounds that they are in breach of the Equality Act. As a practical matter, parties no longer need to consider carving out nationality provisions when drafting arbitration agreements.