• 한국중재학회지:중재연구
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• 제14권1호
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• pp.157-184
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• 2004

Dispute plays a key role in maintaining the desirable trading performance. There are many problems such as problems of enforcement of arbitral award and the uncertainty of legal system in PRC. Therefore, the Korean trading companies with Chinese companies should be more concerned with mediation. It's because mediation are more likely to be effective than arbitration and litigation to resolve disputes with chinese companies. This article investigates some differences of mediation between ROK and PRC, and suggests the following ways to resolve dispute. First, the Korean companies should utilize the mediation in small claim but arbitration in big claim. Second, Write a contract and insert mediation clause in BCC or the standard arbitration clause in KCAB. Third, the companies should be more concerned with prevention of dispute than dispute resolution. In conclusion, to expand mediation system into an effective dispute resolution system, The Korean Dispute Resolution Center should be established.

• 한국중재학회지:중재연구
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• 제7권1호
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• pp.411-446
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• 1997

This paper reports the results of an experimental companson of the winning rates in arbitral awards between the Korean Commercial Arbitration Board and the Japan Commercial Arbitration Association, and analyzed the comparative advantages of KCAB in international arbitration compared with ICC. There are so many factors to analyze the level of internationalizaton and competitiveness in the arbitration. From the recent lituratures, arbitration experts reported and debated tremendous elements which is vital to have a competition in the international arbitration market. Arbitration factors such as fairness, reliability, awareness, extension, enforcement, inexpensiveness, closed and expedited proceedings, arbitrators, expert knowledge, service, arbitral award, etc. are very important to appraise the level of the globalization and competitiveness of arbitration organizations Using these factors, I appraised current level of the globalization and competitiveness of the Korean Commercial Arbitration Board, unique arbitration organization in South Korea. Next, we are able to compare the level of fairness using the concept of 'winning rate' All over the world, only several arbitration organizations published and opened their own arbitral awards even In anonymity. The Japanese arbitration institutions published it regularly as well as the Korean When compared with these two institutions' "winning rates". there is similiar tendency in favor of domestic corporations That is to say, the winning rates in domestic arbitration cases are greater than those in international arbitration cases. This embarks an implication of unequality, a part of unfairness, in these two countries' arbitration. Finally, an analysis was conducted between the statistics of KCAB and ICC, especially to the focus on the number of arbitration cases, arbitration tribunals, arbitration places, parties' nationalities. the types of contents, the amount of arbitration, arbitration costs. There are two meanings to keep in mind for advancement of Korean arbitration. One is to establish new strategy specializing in small amount arbitration less than US$200,000. The other is to rearrange the panel of arbitration, especially in increasing field of arbitration cases such as the disputes of license, technology transfer, patent, etc.

• 한국중재학회지:중재연구
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• 제24권2호
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• pp.3-31
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• 2014

As all aspects of international activity have kept growing in good transaction, transnational investments, joint ventures, and the licensing of intellectual property, it is inevitable for disputes to increase across national frontiers. International disputes can be settled by arbitration and ADR. In the situation presented in the paper, any dispute shall be finalized by arbitration and conciliation in the Gaeseong Industrial Complex. Inter-Korean Commercial Arbitration in the Gaeseong Industrial Complex has become the principal method of resolving disputes in trade, commerce, and investment in accordance with the "Agreement on South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). But the follow-up measures of the said agreements have not been fulfilled. Some prerequisite measures of the Inter-Korean commercial arbitration must be satisfied. In order to proceed with arbitration and conciliation in the Gaeseong Industrial Complex, we need to ask the following: Does the status of an arbitrational matter? Should an agreement to arbitrate contain a choice of law clause? Should one provide for one arbitrator or three? How should the arbitrators be selected? What is the relation between party-appointed arbitrators and the presiding arbitrator (neutral arbitrator)? Do arbitrators compromise more than the litigation? Can conciliation be combined with arbitration? To execute the enactment of arbitration regulations, the contents of the Arbitration Rules of the Korean Commercial Arbitration Board (South) and the Korea International Trade Arbitration Committee (North), together with the Korean Arbitration Act and External Arbitration Act of North Korea and the UNCITRAL Model Arbitration Law and UNCITRAL l Arbitration Rules are reflected in the Rules. There are many aspects of the Inter-Korean Commercial Arbitration. It is essential to understand key elements; namely, the arbitration agreement, appointment of arbitrator, arbitral proceeding and arbitral award, and enforcement and setting aside of arbitral award. This research deals with five chapters. Chapter 1 provides the introduction. Chapter 2 deals with trade volume between South and North Korea and the kinds of dispute in Gaeseong. Chapter 3 addresses contents and follow-up measures of the agreement on the "South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). Chapter 4 features the problems and tasks of the pertinent agreements. Chapter 5 gives the conclusion. Enabling parties to find an amicable solution to the dispute in the Gaeseong Industrial Complex can lead to a useful and appropriate framework either through direct negotiation or by resorting to conciliation or mediation in accordance with pertinent agreements and follow-up measures contained in the agreements.

• 한국중재학회지:중재연구
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• 제23권4호
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• pp.55-76
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• 2013

This study aims to analyze the main features of Mongolian arbitration system compared with Korean Arbitration Law which was revised under the UNCITRAL Arbitration Model Law. On the basis of this comparative study, certain differences are suggested: First, the environment of Mongolian arbitration is still insufficient in terms of its operation and usage at the international level. Second, the Mongol National Arbitration Court has established Ad-hoc Arbitration Rules and has promoted Ad-hoc Arbitration although it is an institutional arbitration organization. Third, the arbitration objects are defined as the types of tangible and intangible assets in Mongolia which are different from those of the Korean Arbitration Law. Accordingly, court and officer disputes, family disputes, labor-management relations, and criminal matters are covered by the arbitration objects. Fourth, Mongol Arbitration Law specifies the following persons disqualified for arbitrator appointment: the member of the Constitutional Court, judge, procurator, inquiry officer, investigator, court decision enforcement officer, attorney, or notary who has previously rendered legal service to any party of the disputes, and any officials who are prohibited by laws to be engaged in positions above the scope of their duties. Fifth, the arbitrator selection and appointment criteria should be documented, and the arbitrator should have the ability to resolve the disputes independently and fairly and achieve concord from both parties. Sixth, if there is no agreement between the parties, the arbitration language should be Mongolian, and the arbitral tribunal has no power to decide on it. Seventh, despite the agreement for a documentary hearing between the parties, there should be provided opportunities for an oral hearing if either of the parties requires it. Eighth, if the parties do not understand the language of the arbitration, the parties can directly ask the translation service. They should also keep secrets in the process of arbitration. Ninth, the cancellation of arbitral award is allowed by the application of the parties, not by the authority of the court. Except for the nine differences above, the Mongolian arbitration system is similar to that of the Korean Arbitration Law. This paper serves to contribute to the furtherance in trade relationship between Mongolia and Korea after the rapid and efficient resolution of disputes.

• 한국중재학회지:중재연구
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• 제21권2호
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• pp.3-25
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• 2011

국제상사중재를 다루는 중재판정부의 중재인은 당사자들 간의 유효한 합의를 통하여 구속력 있는 중재판정을 행사할 권한을 가진다. 중재계약에 다른 정함이 없는 한 중재인의 판정권에 대한 결정은 중재인 자신이 내린다. 중재인은 중재합의에 의하여 그 권한이 부여된 사건에 대해서만 권한을 갖게 되나, 명시적으로 그 권한에 따라야 하는 사건 외에 당해 사건을 해결하기 위하여 처리하지 않으면 안 될 모든 문제, 즉 당해 사건과 절단될 수 없는 형태로 연계되어 있는 문제 또는 그 부차적인 조건의 문제를 해결하여야 하는 책임을 지게 된다. 중재판정부는 그 자율적인 권한범위를 규율하는 권한을 가지며, 그 권한 속에는 중재합의의 존부 또는 효력에 관한 것도 포함된다. 중재인의 판정권에 이의가 있는 당사자는 법원에 중재계약의 부존재 무효 확인을 청구할 수 있고, 중재판정이 이미 내려진 경우에는 중재판정취소의 소를 제기하거나, 집행판결에서 이의를 제기할 수 있다. 우리 중재법의 입장에서 국제중재판정의 판정기준에 대해 는 중재판정부는 당사자들이 지정한 법에 따라 중재판정을 내려야 하며, 특정 국가의 법 또는 법체계가 지정된 경우에 달리 명시되지 아니하는 한 그 국가의 국제사법이 아닌 분쟁의 실체법을 지정한 것으로 보고 있다. 국제중재의 법적 안정성, 예측가능성의 관점에서 실정법을 그 판단의 규준으로 삼는다. 한국의 국제중재의 특성은 국제성 중립성, 보편성을 보장받는 점이다. 중재인 구성원은 세계 각국의 국적을 가진 전문 중재인들이 참가하고 있다. 중재절차에 있어서도 중재인은 실체법이나 절차법, 또는 법률의 상충에 관계없이 어느 특정법률을 적용하도록 강요받지 않고 각각의 경우에 가장 적합한 법률에 따르며 중재판정부의 진행절차는 국제중재규칙에 의해 규율된다.

• 한국중재학회지:중재연구
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• 제15권3호
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• pp.27-54
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• 2005

In the era of globalization firms must operate all useable resources into marketing activities to survive on the unlimited competition. However, firms face many kinds of disputes with counterparts because of aggressive marketing activities. There are two ways of solving these disputes : litigation and arbitration. As compared to litigation, arbitration is more popular because of such merits as the enforcement of arbitral award in foreign countries, the single trial system, the settlement by specialists, and the confidential proceedings. This paper examines trade firms' perception on the arbitration system and the effects of the advantages of arbitration and quality of arbitrators on the outcome of arbitration. The results show that the advantages of arbitration and quality of arbitrators influenced positively on the outcome of arbitration, but influenced negatively on the closed-door of arbitration procedures and a fair procedure of arbitrator. Though this paper has several limitations, this paper may contribute to figure out the relationship between arbitration merits and quality of arbitrator and outcomes as a first empirical paper and to suggest future research method and direction.

• 한국중재학회지:중재연구
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• 제20권2호
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• pp.91-130
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• 2010

This thesis, which mainly focuses on judicial supervision of commercial arbitration in China, will deal with the developing process of arbitration system and analyze the actual condition of judicial supervision in commercial arbitration. And it also focuses on the underlying problems attributed to the excessive judicial intervention and an effort that the related academic world, arbitration industry and legal circles in China start to make in order to improve the system, resolving them. About the time China became a member of the WTO and about the 10th anniversary of the enforcement of Arbitration Law, powerful demands to solve the problems started to exist intensively. Academic field in China integrated these demands into the form of "proposed amendment of arbitration law", which enhanced the independence of arbitration and the autonomy of the involved parties drastically, as it accepted major contents of UNCITRAL Model Law while preserving of original tool of Chinese arbitration system. Separately from the movement in academic field, Supreme People's Court starts to exert itself for the, improvement of arbitration system, by announcing a series of proposed judicial interpretation so that it could collect the public opinion continuously and reflect the gathered opinion in judicial interpretation efficiently. Notwithstanding, there still remains to be ameliorated that the Arbitration Law of the PRC won't be able to overcome original limit when valuating judicial intervention on arbitration in some ways.

• 한국중재학회지:중재연구
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• 제30권2호
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• pp.121-144
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• 2020

If the interim disposition of the Arbitration Tribunal is not immediately enforceable, it will only give pressure to the other party concerned and the arbitration could work against him if the other party fails to implement it. If enforcement is impossible, the disposition will have no practical effect or practical benefit. In addition, if a system is contrary to its unique characteristics or nature, it will not function as a system or it will become an unnecessary decoration. There is no room for argument that the above provisions are wrong or misinterpreted if the temporary disposition in arbitration cannot be characterized by its characteristics, such as its provisionality, urgency, incidentality, or invasibility. As attracting international arbitration cases can create enormous added value for the national economy, countries are scrambling to create a mediating-friendly legal environment in their countries, and Korea has been more active in arbitration than in the past. Despite various efforts, however, attracting international arbitration cases is still a long way off. Therefore, Korea should create a mediating-friendly, legal environment to attract arbitration cases. There are many reasons why arbitration is activated internationally, but the most important of them is that it is easier to approve and execute. The use of the approval and execution of heavy court is, in turn, the most important requirement of a mediating-friendly environment. It is natural that temporary dispositions made in arbitration should be as easy to approve and enforce as in the case of arbitration. In addition, it is natural for the parties to consider the use of approval and execution when deciding where to mediate or when applying for arbitration; thus, the degree of ease of execution, along with the procedural use of arbitration or provisional disposition, will be a measure of the likelihood of hosting international arbitration cases, as well as the activation of arbitration.

• 무역상무연구
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• 제19권
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• pp.191-223
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• 2003

Electronic commerce and the Internet offer unprecedented opportunities. The explosive expansion of the use of the Internet makes it possible for businesses to expand their markets and render services. Global transaction costs are easy to cut off using Internet and transaction speed is faster than before. Where cyberspace is not free from claims, Offline transaction can lead to problems and disputes the same is for cyberspace transactions. However ADR is not meet for the online transaction for speed, cost and open network system, ODR methods to resolve electronic commerce conflicts is crucial for building confidence and permitting access to justice in an online business environment. The use of the Internet and the network in dispute resolution has an impact on the types of communication implied in the relevant processes such as automated negotiation, online mediation and online arbitration and involves new technological issues such as the integrity and confidentiality of data and communication used to transmit and store data. Among the ODR systems Online Arbitration is currently binding both parties disputed and can achieve the aim of dispute award the same as the traditional arbitration. Arbitration is based on the New York Convention 1958, Arbitration Model law 1985 and national Arbitration Act that are founded on territorial area and rested on arbitration agreement, constitution of the arbitral tribunal, due process, final and binding award and enforcement of the arbitration award. To compare with this issues Online arbitration has unnecessarily legal unstability and risk. ODR is the burgeoning field and has created a new issues. All such issues which have been debated in the ADR are composed with ODR. But these are not limited Some of issues are further complicated by the nature of the online environment such as confidentiality and principle of parties. It is true that online arbitration should comply with legal provisions, but which is impossible to adhere of the law. Flexible translation and functional equivalence of legal provisions are needed for acceptance of electronic commerce disputes. Finally electronic commerce now takes place on the Internet, it is inevitable that the commercial world wants access to dispute resolution process that best suits the new commercial environment. ODR methods are processing for development and legal issues are considered by both national and international authorities. Introduction of new Conventions or amend Convention and Model law of ODR comes near.