• Journal of Arbitration Studies
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• v.22 no.2
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• pp.125-157
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• 2012

This study is to vindicate the vacation of arbitral awards in the United States. It focuses on the harmony of case law with statutory law of the United States. Until the early twentieth century, the American legal system, having adopted the English common law view, harbored a hostile attitude toward arbitration. The purpose of the Federal Arbitration Act (FAA) of the United States, enacted in 1925, was to eliminate the hostile attitude of courts toward arbitration. Congress is to enforce arbitration agreements into which parties have entered and to place arbitration agreements upon the same footing as other contracts. The structure of grounds for vacating arbitration awards has two layers. One is of vacating grounds with statutory origins, such as the FAA and the Uniform Arbitration Act, and the other, of vacating grounds originating from a nonstatutory, case law background. For a while, vacatur based on case law has coexisted with vacatur on statutory grounds for arbitration awards. After the Supreme Court decision in Hall Street Associates, L.L.C. v. Mattel, Inc., however, the justification of vacating based on case law has weakened. Post-Hall Street decisions of circuit courts show ways to deal with manifest disregard of the law. One of them is the harmonization of the case law grounds for vacating with the statutory grounds. It seems that the manifest-disregard-of-law and public-policy exceptions show a possibility of survival after Hall Street. However, other nonstatutory grounds for vacation of arbitration awards have no firm basis after Hall Street.

• Journal of Arbitration Studies
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• v.15 no.3
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• pp.85-112
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• 2005

The purposes of this paper are to investigate how deeply the courts in Korea and the U.S. are involved in the enforcement process of the arbitral award. The extent of judicial review of arbitral award and the procedures to execute the arbitral award were explored and compared in each of the countries. In Korea the winning party should file a suit for enforcement judgement to execute the arbitral award, while the winning party in the U.S. should file an application for motion. Such difference in the execution process between Korea and the U.S. may be led to a higher burden on the Korean winning party in the execution process due to the complexity and instability during the new litigation for enforcement judgement. In addition, the Korean Arbitration Act does not grant any authority for the court to intervene with the substantive matters in the arbitral award, while in the U.S. the Common Law allows the court to vacate the arbitral ward when the arbitral award is entered with the manifest disregard of the law by the arbitral tribunal. It would be more practical for the court to supplementarily intervene with the arbitral award which obviously hurts the legal interest of the arbitral parties.

• Journal of Arbitration Studies
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• v.12 no.2
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• pp.337-372
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• 2003

Given the difficulties investors would encounter in pleading and proving their claims in court, they may well be better off in a system where less attention is paid to the law and more to the equities of the actual dispute before the arbitration panel. While this is not a system where accountability and predictability of results can be achieved, investors may fare better than they might expect. It follows then that if equitable considerations enhance rather than subtract from investors' chances of recovery, then investors need not worry about the consequences of the arbitrators' failure to apply the law. This article tracked the evolution of the arbitration process, through amendments to the pertinent securities arbitration codes of procedure, from an informal proceeding into a quasi-judicial one. Subsequently, I examined the practical difficulties arbitrators encounter in their efforts to apply the law. The Court in McMahon assumed arbitrators would apply the law and that the “manifest disregard” standard would provide sufficient judicial oversight to ensure that they did. But there is no meaningful review of arbitration awards to assure arbitrators are applying the law. Arbitration awards have no value as precedent for future arbitrations. Accordingly, there appears to be little reason to write such an award, particularly if the end result is an award immune from challenge no matter how the panel ruled. In these days, securities arbitration as a disputes resolution system is becoming a more popular practice. The trend of the courts in America has been to enforce arbitration agreements. Moreover arbitration helps alleviate some of the burden of a heavy caseload from the judiciary and is a viable method to resolve disputes in a relatively quick and efficient manner. Therefore I think it would be necessary to introduce securities arbitration system to our disputes resolution system Compared to American practices, there could be, of course, many differences in recognition on arbitration and legal structure in our country. Thus it will be an assignment to consider seriously and carefully what kind of securities arbitration system will be proper for us.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.107-133
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• 2004

In these days, arbitration helps alleviate some of the burden of a heavy caseload from the judiciary and is a viable method to resolve disputes in a relatively quick and efficient manner. An award of punitive damages is often the most significant and detrimental part of an award arising from a judicial or arbitral proceeding. In 1995, the United States Supreme Court resolved a circuit split. upholding an arbitral panel's authority to award punitive damages under a securities arbitration agreement. This decision was monumental in establishing arbitral power. However, it left several questions unanswered. For example, which, if any, standards should be applied to such awards？ The decision in Sawtelle, adopting a separate ground for review of punitive damages awards, is one that signals a significant change in the field of arbitration. This article addresses the reviewability of punitive damages awards arising out of a securities arbitration hearing. It would be necessary to introduce securities arbitration system to our disputes resolution system. Compared to American practices, there could be many differences in recognition on arbitration and legal structure in our country. Thus it will be a future assignment to consider seriously and carefully what kind of securities arbitration system will be proper for us. This article analyzed predispute arbitration agreements and agreements to arbitrate after a dispute has already arisen.

• Journal of Korea Port Economic Association
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• v.27 no.1
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• pp.55-73
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• 2011

The purpose of this study aims to analyse the effect of class arbitration under voyage charter with Asbatankvoy form. This study analyses the Stolt-Nielsen case as a data. In this case, One Class Rule requires an arbitrator to determine whether an arbitration clause permits class arbitration. The parties selected an arbitration panel, designated New York City as the arbitration site, and stipulated that their arbitration clause was silent on the class arbitration issue. The panel determined that the arbitration clause allowed for class arbitration, but the District Court vacated the award. But the Second Circuit reversed, holding that because petitioners had cited no authority applying a maritime rule of customs and usage against class arbitration, the arbitrators' decision was not in manifest disregard of maritime law; and that the arbitrators had not manifestly disregarded New York law, which had not established a rule against class arbitration. However, the Supreme Court held, imposing class arbitration on parties who have not agreed to authorize class arbitration is inconsistent with the Federal Arbitration Act.