• 한국중재학회지:중재연구
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• 제16권2호
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• pp.51-88
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• 2006

The obligation on a national court to recognize and enforce arbitral awards as provided in Article III New York Convention, which both Korea and China have ratified, is subject to limited exceptions. Recognition and enforcement will be refused only if the party against whom enforcement is sought can show that one of the exclusive grounds for refusal enumerated in Article V(1) New York Convention has occurred. The court may also refuse enforcement ex officio if the award violates that state's public policy. This article explores the circumstances where arbitral awards may be refused enforcement under the Korean and Chinese arbitration laws. It first analyzes the relevant statutory provisions. In Korea and China, which have adopted the UNCITRAL Model law, the grounds of challenge are exhaustively defined within their respective arbitration laws. According to their arbitration laws, an arbitral award may be set aside if a party making the application proves that (i) a party to the arbitration agreement was under some incapacity or the agreement is not valid under the applicable law, (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case, (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration, or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. An arbitral award may also be set aside ex officio by the court if the court finds that (i) the subject-matter of the dispute is not capable of settlement by arbitration under the applicable law or (ii) the award is in conflict with the public policy. This article then reviews relevant judicial decisions rendered in Korea and China to see how the courts in these countries have been interpreting the provisions specifying the grounds for challenging arbitral awards. It concludes that the courts in Korea and China rarely accept challenges to arbitral awards, thereby respecting the mandate of the New York Convention.

• 한국중재학회지:중재연구
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• 제31권1호
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• pp.107-127
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• 2021

Vietnam is an important country with many trade transactions with the Republic of Korea. Arbitration is a method of resolving disputes that can arise with the increase in trade transactions. It is essential to study the legal system and precedents of Vietnam on the approval and enforcement of foreign arbitral awards. Such is the case because the law in Vietnam and the court's position on the approval and enforcement of foreign arbitration awards issued by the courts depend on the possibility of realizing the parties' rights concerning their disputes. Therefore, it is of great value both theoretically and practically to analyze the exact differences between approval and the denial of approval. Vietnam has enacted the Commercial Arbitration Act, which replaces the previous Commercial Arbitration Decree and creates an arbitration-friendly environment that meets international arbitration standards. Regarding the approval and execution of foreign arbitration awards, the Commercial Arbitration Act, the Civil Procedure Act, the Civil Execution Act, and the Vietnam Foreign Arbitration Awards Approval and Enforcement Ordinance are regulated. Following these laws and regulations, the reasons for the approval, enforcement, and rejection of the arbitral award are specified. In accordance with these laws and inappropriate arbitration agreements, an arbitral award beyond the scope of its right of disposition, an arbitral tribunal, or the concerned parties could not be involved in a proceeding or an arbitral award if the involved party does not have an opportunity to exercise its rights lawfully. If the state agency in the forum does not recognize the arbitral award, the dispute is not subject to arbitration under Vietnamese law, or the arbitral award does not conform to the basic principles of Vietnamese law, the parties are not bound, and the foreign arbitration award is rejected for approval and execution.

• 한국중재학회지:중재연구
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• 제30권2호
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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.

• 한국중재학회지:중재연구
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• 제26권4호
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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.

• 무역상무연구
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• 제35권
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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.

• 한국중재학회지:중재연구
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• 제25권2호
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• pp.19-47
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• 2015

International arbitration is an increasingly popular means of alternative dispute resolution for cross-border commercial transactions. The primary advantage of international arbitration over court litigation is enforceability. An international arbitration award is enforceable in most countries in the world. Especially, statistics indicate of ASEAN such as Malaysia and Singapore that the vast majority of defeated companies comply with the terms of international arbitral awards against them or settle soon after the award is rendered. Unlike Malaysia and Singapore, in Indonesia, there are several grounds for refusal of enforcement of an award including where both the nature of the dispute and the agreement to arbitrate do not meet the requirements set out in the Arbitration Law. Because Indonesia does not acknowledge decisions of foreign courts, theoretically they could enforce an international arbitral award which was set aside by the court in the seat of arbitration. This paper introduces the legal system and cases of recognition and enforcement of foreign arbitration awards in ASEAN, especially Malaysia, Singapore, and Indonesia. Secondly, by comparing their law and cases, the paper emphasized the international suitability and global fitness in involved in recognition and enforcement of foreign arbitration awards.

• 무역상무연구
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• 제31권
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• pp.107-134
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• 2006

Enforcement of an arbitration award is an extremely important issue in arbitration. Arbitration, as a dispute settlement process, is rendered meaningless if it is not possible to enforce an award rendered by an arbitration tribunal. On the other hand, the present international arbitration system guided by the New York Convention and UNCITRAL Model Law is established on the dual supervision from the national courts. The nationality of the international arbitral award closely relates to the supervision of the national court, and the national court is entitled to decide the nationality of the international award in accordance with the conditions set in its own domestic law. The national court may set aside arbitral award made in its territory while the foreign court may refuge enforcement of foreign arbitral awards according to its own law and international convention to which it is a party. The conditions set in the Arbitration Law of the People's Republic of China are in agreement with those set in the UNCITRAL Model Law. The Chinese national court is entitled to set aside international awards made in China in accordance with the Chinese Law. The purpose of this paper is to clarify the Chinesr practice on the revocation of international commercial arbitral awards.

• 한국중재학회지:중재연구
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• 제27권1호
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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.

• 한국중재학회지:중재연구
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• 제29권1호
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• pp.31-52
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• 2019

As international transactions have grown more numerous, situations of disputes related to the transactions are getting more complicated and more diverse. Cost-effective remedies to settle the disputes through traditional methods such as adjudications of a court will be insufficient. There fore, nations are attempting to more efficiently solve investor-state disputes through arbitration under organizations such as the ICSID Convention, the ICSID Additionary Facility Rules, and the UNCITRAL Arbitration Rules by including the provisions on investor-state dispute settlement at the conclusion of an investment agreement. In case of an arbitration under the ICSID Convention, ICSID directly exercises the supervisorial function on arbitral proceedings, and there is no room for the intervention of national courts. In time of the arbitration where the ICSID Convention does not apply, however, the courts have to facilitate the arbitral proceedings. When the recognition and enforcement of an arbitral award under the ICSID Convention are guaranteed by the Convention, it should be considered that the New York Convention does not apply to them under the Convention Article 7 (1) fore-end. In exceptional cases in which an arbitral award under the ICSID Convention cannot be recognized or enforced by the Convention, the New York Convention applies to the recognition and enforcement because the award is not a domestic award of the country in which the recognition or enforcement is sought. It is up to an interpretation of the New York Convention whether the New York Convention applies to ISDS arbitral awards not based on the ICSID Convention or not. Although an act of the host country is about sovereign activities, a host country and the country an investor is in concurring to the investment agreement with the ISDS provisions is considered a surrender of sovereignty immunity, and it will not suffice to exclude the investment disputes from the scope of application of the New York Convention. If the party to the investment agreement has declared commercial reservation at its accession into the New York Convention, it should be viewed that the Convention applies to the recognition and enforcement of the ISDS awards to settle the disputes over an investitive act, inasmuch as the act will be considered as a commercial transaction. When the recognition and enforcement of an arbitral award on investment disputes about a nation's sovereign act have been sought in Korea and Korea has been designated the place of the investment agreement arbitration as a third country, it should be reviewed whether the disputes receive arbitrability under the Korean Arbitration Act or not.

• 한국중재학회지:중재연구
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• 제20권3호
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• pp.3-24
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• 2010

In the approaching 21th century, the outstanding development in international trade and commerce has established arbitration as the preferred form of dispute resolution on international business transaction. Because the form of commercial dispute becomes more complicated and varied with the quantitative increase of them, the reasonable and rapid settlement of them must be the important problem simultaneously. In this article, the author discusses various issues on the recognition and enforcement of an foreign arbitral awards under Korean Arbitration Act, which is modeled after the Model Law on International Commercial Arbitration of the UNCITRAL of 1985. The Dec. 31, 1999 amendment to the Korean Arbitration Act admits the basis for enforcement of foreign arbitral awards rendered under United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958(commonly known as the New York Convention). Korea has acceded to the New York Convention since 1973. When acceding to the convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of anther Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provision relating to the enforcement of arbitral awards falling under the New York Convention consists of Article III, IV, V. In particular, Article V of the New York Convention enumerates the grounds for refusal of recognition foreign arbitral awards. The grounds are separated into two categories : One that abides by procedures and the others are based on national legal sovereignty. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of awards. Because Korea requires enforcement to be based on a judgement, the result is that arbitral of award holders are forced to institute domestic litigation.