• Journal of Arbitration Studies
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• v.13 no.2
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• pp.103-122
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• 2004

Recognition and enforcement of the arbitral award play an important role in the settlement of the international commercial disputes. The New York Convention makes it a duty for the courts of signatories to recognize and enforce the foreign arbitral awards not taking the nationality of the party concerned into consideration. Recognition and enforcement of the arbitral award may be refused if the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. The arbitral award has the same force as an irrevocable judgement including effect of excluding further litigation, its execution and formation. But the effect of set aside arbitral award made abroad in arbitral place was denied by France court for the interest of his people. There is no arbitral act but arbitral procedure is regulated by New Code of Civil Procedure in case of France. An appeal against the decision which grants recognition or enforcement is open if the recognition or execution is contrary to international pubic policy in virtue of Art. 1502. Arbitrator may consider compulsory provisions in arbitral place to assure to recognition and enforcement of the arbitral award.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.3-33
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• 2017

This paper examines some questions and issues of the effect of an arbitral award, and discusses about the restriction of the trial level in other separate actions permitted under the existence of grounds of setting aside arbitral award after the amendment of the Arbitration Act in 2016. Because there are no interests of litigation in the action for setting aside arbitral award due to the exclusion of res judicata by provisory clause of Article 35, filing an action for setting aside is not allowed even when the grounds of setting aside exist. If we examine the precedent on possibility of retrial for excluding the outward form of invalid judgement, we can find that the court did not approve the retrial. Therefore, the action for setting aside that which is for excluding the outward form of an arbitral award will not be allowed for filing. On the issue of whether an arbitral award having a ground for setting aside can be an object of the action for setting aside for excluding its outward form or not, the views of scholars are divided. In the case of an arbitral award that has grounds for setting aside, it could be interpreted that the arbitral award would not have a formale Rechtskraft or effect of sentence (bindende Kraft). Even if there is formale Rechtskraft or effect of sentence (bindende Kraft), the significance of existence of action for setting aside arbitral award under paragraph 1 of Article 36 is reduced because other actions separate from arbitration is permitted under the 2016 Act. The amendment of the Arbitration Act in 2016 provides an opportunity to review the position and the role of action for setting aside the arbitral award. It also requires further studies on efficiently treating other actions separate from arbitration. Because the restriction of the trial level of other separate actions can make arbitration active by making arbitration procedures become 3 trial levels from 4 trial levels, it needs to be solved with legislative action. Specifically, if the trial starts at the stage of trial on appeal, it can utilize the strength of both the arbitration and the litigation, playing a chief role in boosting arbitration by removing the problems of action for setting aside and enabling arbitration institutes and the person interested to promote the activation of arbitration.

• Journal of Arbitration Studies
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• v.23 no.1
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• pp.1-23
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• 2013

When a court recognizes an arbitral award, it acknowledges that the award is valid and binding, and thereby gives it a set of effects similar to those of a court's judgment, among which res judicata is the most important. The res judicata effect of an arbitral award generally forbids parties to an action from subsequently litigating claims that were raised in a prior arbitration. In common law countries, res judicata may also preclude re-adjudication of issues raised and decided in a prior arbitration. The Korean Arbitration Act acknowledges the rights of parties to an arbitral award to seek not only an enforcement judgment but also a recognition judgment on an arbitral award. Therefore, the question arises whether or not the winning party in an arbitration must acquire a recognition judgment on the arbitral award in order to enjoy the effects of a recognized award. However, according to the case law and generally accepted views, an arbitral award is automatically recognized without any additional procedure, as long as it satisfies the requirements for recognition. Therefore, in order to resolve this question, it is desirable to eliminate the statutory clause that stipulates the right to seek recognition judgment.

• 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.15 no.3
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• pp.55-84
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• 2005

The arbitral award is the decision of the arbitrators on the dispute that had been submitted to them by the parties, either under the arbitration clause providing for the determination of future disputes or under submission of an existing controversy. The arbitral award has the same effect between the parties as a final and binding court judgment. The arbitration award shall acquire, as soon as it is given and delivered to each parties, the authority of res judicata in respect of the dispute it settles. The validity of an award is a condition precent for its recognition or enforcement. The validity of an award depends on the provisions of the arbitration agreement including any arbitration rules incorporated in it, and the law which is applicable to the arbitration proceedings. Such provisions usually address both the form and the content of the award. As the 'form', requires article 32 of Arbitration Act of Korea that an arbitral award should, at least, (1) be made in writing and be signed by all arbitrators. (2) state the reasons upon which it is based unless the parties have agreed that it should not, (3) state its date and place of arbitration. There are some further requirement which may have to be observed before an award which has been made by a tribunal can be enforced. (4) The duly authenticated award signed by the arbitrators shall be delivered to each of the parties and the original award shall be sent to and deposited with the competent court, accompanied by a document verifying such delivery. This rule can be interpreted as if the deposit of an arbitral award with the competent court is always required as a condition for its validity or as a preliminary to its enforcement in Korea. However, we must regard this rule which requires the deposit of an arbitral award with court, as rule of order, but not as condition of its validity. Because that the date on which the award is delivered to each party is important as it will generally determine the commencement of time limits for the making of any appeal which may be available. Furthermore, the party applying for recognition or enforcement merely has to supply the appropriate court with the duly authenticated original award or a duly certified copy thereof, not any document which proves that an the arbitral award is sent to and deposited with the competent court. In order to avoid some confusion which can be caused by its interpretation and application, the Article 32 (4) of Arbitration Act of Korea needs to be abolished or at least modified.

• Journal of Arbitration Studies
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• v.27 no.1
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• pp.59-84
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• 2017

The effects of an arbitration agreement depend on the legislative policy of the nation where arbitral awards are made and where awards are worked out in the private procedures. According to the main body of Article 35 of the Korean Arbitration Act, arbitral awards have the same effects on the parties as the final and conclusive judgment of the court. This is only possible if the awards are formed by satisfying all the legal requirements, have gone into effect, and have become final and conclusive. It is for the legal stability and the effectiveness of the settlement of disputes that the Act grants arbitral awards. While investigating the effects of an arbitral award, the character of the arbitration in which the party's autonomy applies should be considered, along with the substance of the disputes which parties intend to resolve by an arbitration agreement. The proviso of Article 35, which was added in the 2016 Act, says that the main body of the Article shall not apply if recognition or enforcement of arbitral awards is refused under Article 38. Two stances have been proposed in interpreting the proviso. One of them is that there are grounds for refusing the recognition and enforcement of the awards. The other one is that the ruling of the dismissal of a request for enforcement has been final and conclusive. According to the former, it is really unexplained as to its relations with the action for setting aside arbitral awards to court and the distinction between nullity and revocation, and so on. Therefore, its meaning must be comprehended on the basis of the latter so that the current Act system with revocation litigation could be kept. The procedures of setting aside, recognizing, and enforcing arbitral awards are independent of one another under the Act. It is apprehended that the duplicate regulations may lead to the concurrence or contradiction of a court's judgment and ruling. Thus, we need to take proper measures against the negative sides by interfacing and conciliating these proceedings.

• Journal of Arbitration Studies
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• v.30 no.2
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• pp.43-68
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• 2020

The "arbitration" system resolves disputes through judgments on rights relations or claims between disputed parties by judging by private trial, but it does not have organizational and material bases to execute the contents of these judgments. Therefore, unless the parties succeed in voluntarily surrendering to the results of the arbitration award, the implementation of the award will be accomplished by the enforcement of the assistance of the National Court. However, unlike the court's ruling, the arbitration tribunal does not generate enforcement power from the judgment itself, and it must be filed with the court for execution. In this regard, Germany provides for arbitration proceedings in the Civil Procedure Act Volume 10. In particular, Article 1060 governs the approval and enforcement of domestic arbitral awards. Accordingly, the procedure for declaring the feasibility of domestic arbitration proceedings and the execution of forced execution are commenced. Regarding the enforceable declaration of a domestic arbitral award, it differs from the simpler process requirements compared to the procedure in a foreign arbitral award, and usually has the same effect as a final judgment between the parties without a separate approval procedure. However, the arbitration award does not constitute an enforceable power that can be implemented, but is enforced through the national court's declaration procedure. However, if there is a ground for cancellation as provided for in Article 1059 (2) of the German Civil Procedure Act, the arbitral award is canceled and the application for enforcement is dismissed.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.3-31
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• 2011

In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. It could be the object of arbitral proceedings that disputes which are capable of a settlement by arbitration. It is a matter for debate that disputes containing punitive damages may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. To offer some solution to these issues, it is necessary to inquire into the nature of punitive damages. the policy and function of alimony, the fair apportionment of a loss. Moreover, international relations formed with international transactions should be considered. Punitive damages would be the object of arbitral proceedings as the dipute in private laws. When punitive damages pursue only punishment in the domestic arbitration that there is not foreign factors, arbitral tribunal could not make arbitral award containing punitive damages. However, if punitive damages are admitted under the rules applicable to substance of dispute, and there is the arbitration agreement in which is implied that the parties agree to submit to an arbitral award, arbitral tribunal could make arbitral award containing punitive damages in international arbitration. When it is questionable whether it is offend against our public policy or not, that we accept the effect of arbitral award containing punitive damages, and we admit the enforcement of it, we have to take the nature of punitive damages, the policy and function of alimony, the fair apportionment of a loss and the stability of international transactions into consideration.

• Journal of Arbitration Studies
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• v.26 no.4
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• pp.3-41
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• 2016

This paper reviews the problems on the arbitral awards enforcement in the 2016 Korean Arbitration Act. In order to get easy and rapid enforcement of the arbitral awards, the new arbitration act changed the enforcement procedure from an enforcement judgement procedure to an enforcement decision procedure. However, like the old arbitration act, the new act is still not arbitration friendly. First of all, there are various problems in the new act because it does not approve that an arbitral award can be a schuldtitel (title of enforcement) of which the arbitral award can be enforced. In this paper, several problems of the new act are discussed: effect of arbitral award, approval to res judicata of enforcement decision, different trial process and result for same ground, possibility of abuse of litigation for setting aside arbitral awards and delay of enforcement caused by setting aside, infringement of arbitration customer's right to be informed, and non-internationality of enforcement of interim measures of protection, inter alia. The new arbitration act added a proviso on article 35 (Effect of Arbitral Awards). According to article 35 of the old arbitration act, arbitral awards shall have the same effect on the parties as the final and conclusive judgement of the court. The proviso of article 35 in the new act can be interpret two ways: if arbitral awards have any ground of refusal of recognition or enforcement according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court; if arbitral awards have not recognised or been enforced according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court. In the case of the former, the parties cannot file action for setting aside arbitral awards in article 36 to the court, and this is one of the important problems of the new act. In the new act, same ground of setting aside arbitral awards can be tried in different trial process with or without plead according to article 35 and 37. Therefore, progress of enforcement decision of arbitral awards can be blocked by the action of setting aside arbitral awards. If so, parties have to spend their time and money to go on unexpected litigation. In order to simplify enforcement procedure of arbitral awards, the new act changed enforcement judgement procedure to enforcement decision procedure. However, there is still room for the court to hear a case in the same way of enforcement judgement procedure. Although the new act simplifies enforcement procedure by changing enforcement judgement procedure to enforcement decision procedure, there still remains action of setting aside arbitral awards, so that enforcement of arbitral awards still can be delayed by it. Moreover, another problem exists in that the parties could have to wait until a seventh trial (maximum) for a final decision. This result in not good for the arbitration system itself in the respect of confidence as well as cost. If the arbitration institution promotes to use arbitration by emphasizing single-trial system of arbitration without enough improvement of enforcement procedure in the arbitration system, it would infringe the arbitration customer's right to be informed, and further raise a problem of legal responsibility of arbitration institution. With reference to enforcement procedure of interim measures of protection, the new act did not provide preliminary orders, and moreover limit the court not to recognize interim measures of protection done in a foreign country. These have a bad effect on the internationalization of the Korean arbitration system.

• Journal of Arbitration Studies
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• v.17 no.2
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• pp.3-21
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• 2007

Arbitration is a private and contractual means of dispute resolution. As a creature of contract, any particular arbitration owes its existence-and attendant limitations-to an arbitral agreement. This means that, in practice, the parties select their own judges, forum, and rules. By agreeing to arbitration, parties hope to achieve several goals. And arbitration has proven to be quicker, cheaper, and more predictable than litigation as a means of resolving many types of claims. As a primary method of conflict resolution, it is now worthwhile to consider carefully any procedural mechanism designed to promote the central aims of this alternative to litigation. It is helpful to frame any particular analysis according to (1) the type of decision for which preclusive effect is sought (arbitral award or court judgment) and (2) the type of subsequent proceeding in which preclusion is sought (an arbitration or a litigation). Res judicata may well bar litigation of that claim between the parties, but non-parties (affiliates or individuals) will not benefit from this bar unless the arbitral tribunal makes findings sufficient to satisfy the elements of collateral estoppel. The final permutation to be considered involves an arbitral award's preclusive effect on a subsequent arbitration. Whether a prior court decision should preclude issues or claims in a subsequent arbitration presents the easiest case for analysis. It is the easiest primarily because there is generally little room to debate whether adequate procedures were followed in a litigation. That is, one can safely assume that the rules of evidence and the rules of civil procedure were followed and that formal records sufficiently memorialize both the proceeding itself and the ultimate decision. Procedural regularity is mentioned not necessarily because it is an analytic tool, but because so many jurists and scholars see it as an impediment to the application of preclusionary doctrines.