• Journal of Arbitration Studies
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• v.15 no.1
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• pp.95-112
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• 2005

In the inner turn key constructions the problems of uniform types are repeatedly occurred, and, especially, many problems happen up to the stage of pre-construction(from a bid to a contract) owing to the specialties of the turn key constructions. So the claim factors of the Korean turn key constructions were abstracted in antecedent paper. When the technicians meeting the interior turn key constructions for the first time and working here now are well acquainted with only these factors, many claims will be prevented. By analysing the degree of claims by claims factors through the questionnaires to the experts about the abstracted factors and surveying the amount of the claims through the case studies, what factors exerted how much of influence on the claims was tested and analyzed. Studying and Managing the factors affecting the claims much led the technicians in charge of internal turn key constructions to the prevention and the proper solution of the site claims.

• Journal of Arbitration Studies
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• v.9 no.1
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• pp.323-365
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• 1999

The digital revolution is happening much more quickly and Internet Commerce and Electronic Commerce is having a profound influence on the global trade and internal commerce, revolutionize the way of doing business, especially retail and direct marketing. Owing to Internet, an increasing share of business transactions occurs online. Electronic payment is essential for the smooth progress of the electronic commerce as electronic payment plays the important role in the electronic commerce, that is, the value transfer resulting from the electronic commerce. So far, there have not been a considerable emphasis on the risks residing in the electronic payment and money. So, this paper deals with the risks in the electronic payment and money, in particular technical risks and social risks, and the reliability-increasing schemes to prevent the risks in the electronic payment. The reliability-increasing schemes relate to the security of the electronic payment systems and certification authority and key management, transaction rules between the parties concerned in the electronic payment.

• Journal of Arbitration Studies
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• v.14 no.1
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• pp.273-314
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• 2004

There is a belief in the construction industry that the traditional court system may not be an ideal forum to effectively and efficiently resolve construction disputes due to the protracted proceedings and the three tier appeal system resulting in a long delay in the final and conclusive settlement of the dispute, relatively high costs involved, the lack of requisite knowledge and experience in the relevant industry, etc. Hence, they assert that certain alternative dispute resolution ('ADR') methods, such as mediation, conciliation, arbitration or a new system for dispute settlement in the form of any combination thereof should be developed and employed for construction disputes so as to resolve them more promptly and efficiently to the satisfaction of all the disputants concerned. This paper discusses certain merits of such assertions and the need for additional considerations for effective resolution of the construction disputes in light of the complexity of the case, importance of expert witnesses, parties' relationship and non-level playing field of the construction industry and so on. At the same time, however, given the inherent nature of disputes rendering the parties involved in an adversarial position, it would rather be difficult, if not practically impossible, to satisfy all the parties concerned in the dispute. Accordingly, in this study, it is also purported to address the demerits of such assertions by studying the situation from a more balanced perspective, in particular, in relation to the operation of such ADRs. In fact, most of such ADRs as stipulated by special acts, such as the Construction Industry Basic Act of Korea, in the form of mediation or conciliation, have failed to get support from the industry, and as a result, such ADRs are seldom used in practice. Tn contrast, the court system has been greatly improved by implementing a new concentrated review system and establishing several tribunals designed to specialize in the review and resolution of specific types of disputes, including the construction disputes. These improvements of the court system have been warmly received by the industry. Arbitration is another forum for settlement of construction disputes, which has grown and is expected to grow as the most effective ADR with the support from the construction industry. In this regard, the Korean Commercial Arbitration Board ('KCAB') has established a set of internal rules end procedures in operation to efficiently handle construction disputes. Considering the foregoing, this paper addresses the most important elements of the arbitration, i.e., arbitration agreement and arbitral award, primarily focusing on the domestic arbitrations before the KCAB. However, since this parer is prepared for presentation at the construction disputes seminar for the public audience, it is not intended for academic purposes, nor does it delve into any specific acadcmic issues. Likewise, although this paper addresses certain controversial issues by way of introduction, it mainly purports to facilitate the understanding of the general public, including the prospective arbitrators on the KCAB roster without the relevant legal education and background, concerning the importance of the integrity of the arbitration agreement and the arbitral award. In sum, what is purported in this study is simply to note that there are still many outstanding issues with mediation, conciliation and arbitration, as a matter of system, institutional operation or otherwise, for further study and consideration so as to enhance them as effective means for settlement of construction disputes, in replacement of or in conjunction with the court proceeding. For this purpose, it is essential for all the relevant parties, including lawyers, engineers, owners, contractors and social activists aiming to protect consumers' and subcontractors' interests, to conduct joint efforts to study the complicated nature of construction works and to develop effective means for examination and handling of the disputes of a technical nature, including the accumulation of the relevant industrial data. Based on the foregoing, the parties may be in a better position to select the appropriate dispute resolution mechanism, a court proceeding or in its stead, an effective ADR, considering the relevant factors of the subject construction works or the contract structure, such as the bargaining position of the parties, their financial status, confidentiality requirements, technical or commercial complexity of the case at hand, urgency for settlements, etc.

• Journal of Arbitration Studies
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• v.20 no.3
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• pp.25-46
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• 2010

In spite of great interest and recent innovation of the legislative system in the Arbitration and other Alternative Dispute Resolution(ADR) system, In Japan there have been only a few case in which International commercial dispute was settled through the Arbitration compared to other countries. However, we can easily expect that foreign arbitral awards which need to be recognized and enforced in Japan will gradually increase and this makes it very important for us to review the Japanese legislative system regarding recognition and enforcement of foreign arbitral awards. In this paper, I focused on the relations between applicable laws(including convention) regarding recognition and enforcement of foreign arbitral awards in Japan and some issues concerning refusal of recognition and enforcement of foreign arbitral awards. Japan is a member state of several multilateral conventions concerning recognition and enforcement of foreign arbitral awards including the New York Convention of 1958 and at least 20 bilateral agreements which include provisions in relate to the recognition and enforcement of arbitral awards. Therefore there are some legal issues about the priority application between multilateral and bilateral agreements in relate to Article 7(1) of the New York Convention. In Japan, as I mentioned in this paper, there are incoherent opinions concerning this issue. To solve it substantially it would seem appropriate to build up concrete and explicit provisions concerning the application of priority between multilateral and bilateral agreements. On the other hand, in relate to the application between the New York Convention and National Law, it is necessary to take general approach regarding the priority application between Convention (Treaty) and National Law, considering the national application of conventions under the Constitutional System of each country. Among the grounds for non-recognition/enforcement, there are the ones that are decided under the law of the requested country, for instance, arbitrability and public policy. It would therefore be possible that some foreign arbitral awards would not be recognized in Japan especially relating to the arbitrability because its scope in Japan is not so large. Regarding the enforcement of awards annulled in their place of origin, some positive opinions in recent Japanese legal discussions, say that annulled awards should be enforced as a counter strategy of developed countries and judiciary discretion of the requested country would be needed. As mentioned in this paper, the recognition and enforcement of foreign arbitral awards is closely related to judicial policy of the requested country as the recognition and enforcement of foreign judgment is. Even though there existed uniform rules on recognition and enforcement of foreign arbitral awards like the New York convention, each country has different internal legal status of conventions under its own Constitutional System and tends to interpret the provisions based in its own profit. Therefore, it is necessary to review, in the light of conflict of laws, the national legislative system including legal status of conventions of the requested countries concerning recognition and enforcement of foreign arbitral awards.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.163-177
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• 2020

There are several ways to implement charter parties in the operation of the vessel. Under the time charter party, the charterer borrows the vessel from the shipowner and uses the vessel to benefit his business. The time charter party's legal relationship can be divided into internal and external relationships. This article deals with an internal relationship. The legal matters between the shipowner and charterer are regulated by the agreement. The NYPE is the most widely circulated type of time charter party. According to the NYPE, navigational matters fall upon the shipowner while business matter falls upon the time charterer. There are vague parts in interpreting NYPE articles. NYPE Art. 8, called the employment clause, is one of them. The Master employed by the shipowner should follow the order of the charterer. Whether the charterer has the right to order the Master of the vessel to follow the navigating route recommended by him was addressed in the Hill Harmony case by the UK Supreme Court. The court was affirmative. Under the Ocean Victory case, whether the time charterer has an obligation to order the Master to go out to escape heavy weather from the berth at the port was at issue. The Japanese lower court decided negatively. There is a tendency that many countries insert default rule in the maritime law to apply it to the case at issue in a case where there is no agreement. It serves the enhancement of legal stability; China, Japan, and Germany are such countries. The author thinks that Korea should follow the above three countries' revision of their maritime law.

• Journal of Arbitration Studies
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• v.19 no.2
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• pp.95-126
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• 2009

One of the controversial issues in investor-state investment arbitration is the interpretation of "umbrella clause" that is found in most BIT and FTAs. This treaty clause requires on Contracting State of treaty to observe all investment obligations entered into with foreign investors from the other Contracting State. This clause did not receive in-depth attention until SGS v. Pakistan and SGS v. Philippines cases produced starkly different conclusions on the relations about treaty-based jurisdiction and contract-based jurisdiction. More recent decisions by other arbitral tribunals continue to show different approaches in their interpretation of umbrella clauses. Following the SGS v. Philippines decision, some recent decisions understand that all contracts are covered by umbrella clause, for example, in Siemens A.G. v. Argentina, LG&E Energy Corp. v. Argentina, Sempra Energy Int'l v. Argentina and Enron Corp. V. Argentina. However, other recent decisions have found a different approach that only certain kinds of public contracts are covered by umbrella clauses, for example, in El Paso Energy Int'l Co. v. Argentina, Pan American Energy LLC v. Argentina and CMS Gas Transmission Co. v. Argentina. With relation to the exhaustion of domestic remedies, most of tribunals have the position that the contractual remedy should not affect the jurisdiction of BIT tribunal. Even some tribunals considered that there is no need to exhaust contract remedies before bringing BIT arbitration, provoking suspicion of the validity of sanctity of contract in front of treaty obligation. The decision of the Annulment Committee In CMS case in 2007 was an extraordinarily surprising one and poured oil on the debate. The Committee composed of the three respected international lawyers, Gilbert Guillaume and Nabil Elaraby, both from the ICJ, and professor James Crawford, the Rapportuer of the International Law Commission on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, observed that the arbitral tribunal made critical errors of law, however, noting that it has limited power to review and overturn the award. The position of the Committee was a direct attack on ICSID system showing as an internal recognition of ICSID itself that the current system of investor-state arbitration is problematic. States are coming to limit the scope of umbrella clauses. For example, the 2004 U.S. Model BIT detailed definition of the type of contracts for which breach of contract claims may be submitted to arbitration, to increase certainty and predictability. Latin American countries, in particular, Argentina, are feeling collectively victims of these pro-investor interpretations of the ICSID tribunals. In fact, BIT between developed and developing countries are negotiated to protect foreign investment from developing countries. This general characteristic of BIT reflects naturally on the provisions making them extremely protective for foreign investors. Naturally, developing countries seek to interpret restrictively BIT provisions, whereas developed countries try to interpret more expansively. As most of cases arising out of alleged violation of BIT are administered in the ICSID, a forum under the auspices of the World Bank, these Latin American countries have been raising the legitimacy deficit of the ICSID. The Argentine cases have been provoking many legal issues of international law, predicting crisis almost coming in actual investor-state arbitration system. Some Latin American countries, such as Bolivia, Venezuela, Ecuador, Argentina, already showed their dissatisfaction with the ICSID system considering withdrawing from it to minimize the eventual investor-state dispute. Thus the disagreement over umbrella clauses in their interpretation is becoming interpreted as an historical reflection on the continued tension between developing and developed countries on foreign investment. There is an academic and political discussion on the possible return of the Calvo Doctrine in Latin America. The paper will comment on these problems related to the interpretation of umbrella clause. The paper analyses ICSID cases involving principally Latin American countries to identify the critical legal issues arising between developing and developed countries. And the paper discusses alternatives in improving actual investor-State investment arbitration; inter alia, the introduction of an appellate system and treaty interpretation rules.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.353-376
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• 2004

In the inner turn key constructions the problems of uniform types are repeatedly occurred, and, especially, many problems happen up to the stage of pre-construction(from a bid to a contract) owing to the specialties of the turn key constructions. So the claim factors of the Korean turn key constructions were abstracted through the literature searches, the site document examinations, the case studies and the interviews with the experts. When the technicians meeting the interior turn key constructions for the first time and working here now are well acquainted with only these factors, many claims will be prevented. By analysing the degree of claims by claims factors through the questionnaires to the experts about the abstracted factors and surveying the amount of the claims through the case studies, what factors exerted how much of influence on the claims was tested and analyzed. Proposing the response devices to the factors affecting the claims much led the technicians in charge of internal turn key constructions to the prevention and the proper solution of the site claims.

• Journal of Korean Academy of Nursing Administration
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• v.10 no.1
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• pp.49-62
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• 2004

purpose: The study was done to analyze the concept of moral distress in nurses. Method: The Hybrid Model was used in this study. For the theoretical phase, nursing and other literature were reviewed to analyze attributes and develop a working definition of the concept, moral distress in nurses. For the fieldwork phase, In-depth interviews were conducted with six nurses. Results: Four higher level concepts of moral distress in nurses were found; situational, cognitive, behavioral, and emotional, and 8 subscales, negative medical behavior, negative nursing behavior, excessive economic load, irrational organization administration, internal restraints, external restraints, negative behavioral responses, and negative emotional responses. Conclusion: it is necessary to develop programs of arbitration that will lessen the moral distress in nurses working in clinical practice.

• The Journal of Korean Institute of Communications and Information Sciences
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• v.24 no.8B
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• pp.1401-1411
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• 1999

Due to the increase of multimedia services, multicasting is considered as important design factor for ATM switch. To resolve the traffic expansion problem that is occurred by multicast in multistage interconnection networks, this paper proposes the multicast switch using a high-speed bus and a shared memory switch. Since the proposed switch uses a high-speed time division bus as a connection medium and chooses a shared memory switch as a basic switch module, it provides good port scalability. The traffic arbitration scheme enables internal non-blocking. By simulation we proves a good performance in the data throughput and the cell delay.

• Journal of Oriental Neuropsychiatry
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• v.32 no.1
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• pp.39-53
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• 2021

Objectives: To analyze the reports of qualitative research about natural disasters in Korea. Methods: Nine published qualitative research studies were selected for the analysis. The selected reports were analyzed by Consolidated Criteria for Reporting Qualitative Research (COREQ), a reporting guideline for qualitative research. In addition, each subject of the study was qualitatively synthesized. Results: In the quality assessment using COREQ, detailed information about the researchers were insufficient. The results of the studies were integrated into six themes: "Disaster experience", "Disaster damage", "Dealing with disasters", "Disaster compensation issues", "Arbitration Resources", and "Post-disaster change". Conclusions: In further qualitative research on natural disasters, it is necessary to report the research according to the COREQ checklist. Based on the results of this study, continuous attention and research are needed to explore the areas of Korean medicine care in the event of a disaster.