• Journal of Arbitration Studies
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• v.27 no.4
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• pp.199-222
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• 2017

Currently, many punitive damages (or statutory damages) and class action laws are discussed in relation to the consumer damage relief system. It is in the background of the argument that the introduction of such a victim relief system will solve many small and large consumer damages. There are many cases in which the punitive damages compensation or the class action system are introduced in relation to the food safety damage naturally. Although the introduction of such a system can clearly help the consumer to relieve large-scale damage, it can not solve all the problems at once because the company can reject the system despite the introduction of such a system. In particular, class action lawsuits should have the same type of damage, but most of the damage caused by food safety is accompanied by physical harm, resulting in various complications such as the physical characteristics of the victim, the health environment. The class action system may not provide a solution in that the content and type of the damage may be different. In this regard, this study aims to investigate the introduction of the food safety damage relief system through the introduction of an administrative dispute settlement system by an administrative agency that occupies an absolute position in the existing consumer protection from this point of view. In reality, the Food and Drug Administration, which is the largest among government agencies related to food, operates a passive attitude consumer protection system such as function like guidance, supervision and surveillance. And it is necessary to make a complementary proposal. In the current law, there is only a small part of the consumer protection work that is positively legal, and even after the damage is scientifically identified, it is not possible to present the solution to the damage suffered by the consumer through legislation. This is a fact that has been raised. In this paper, we propose a reasonable and rapid disaster relief procedure through a separate mechanism within the administrative agency, which is the administration agency, that the dispute settlement procedure due to food safety damage is insufficient by solving the case through the court through counseling, dispute adjustment and civil proceedings. In order to solve the problem of food insecurity and the food industry, various ways of rational solution of the problem were considered. The possibility of (1) Establishment of a food safety dispute resolution committee; (2) Establishment of a food safety disaster relief committee; and (3) Establishment of a food safety disaster relief committee was discussed. In addition, a plan for the creation of a food damage compensation fund was also proposed.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.157-181
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• 2007

The commercial relationship between South and North Korea is defined under the concept of economic relation and cooperation. To resolve any dispute that can arise from the trade and investment relations between South and North Korea, 'Agreement on the Procedures to Resolve Commercial Arbitration of South-North Korea' came into force in August 2003. Commercial Arbitration Committee of South-North Korea will be organized as the member lists of the committee were exchanged in July 2006 between South and North Korea. This committee must become a central system to settle the trade and investment disputes between South and North Korea. North Korea's Foreign Economic Arbitration Act was enacted to provide the foreign investors with the safe measures in their investments such as dispute resolution. But this Act can not dispute the trade and investment disputes between South and North Korea. The purpose of this paper is to contribute to the activation of arbitration between South and North Korea by studying Commercial Arbitration Committee of South-North Korea introduced by Agreement on the Procedures to Resolve Commercial Arbitration of South-North Korea and Agreement on the Construction and Operation of Commercial Arbitration Committee of South-North Korea and finding the problems and solutions of Commercial Arbitration Committee of South-North Korea.

• Journal of Arbitration Studies
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• v.29 no.3
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• pp.99-119
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• 2019

In recent times, the volume of cross-border e-commerce has witnessed an upward trend and has been accompanied by increased disputes, with cross-border e-commerce being characterized mainly by low value and large volume issues. For this reason, Online Dispute Resolution (ODR) was formed to carry out dispute resolutions in cross-border e-commerce. A virtual multi-door ODR platform for small value, cross-border disputes in e-commerce is then proposed in this paper. For a couple of decades, researchers have tried to employ Artificial Intelligence (AI) to Law. However, it turns out that they were faced with a couple of obstacles to integrate AI to Law since it is highly difficult to program AI to process the common sense of a human being. For example, AI cannot assimilate the affective side of a human being, and it is problematic to integrate a human being's common sense into the AI system. Considering this situation, this study puts forward an ODR model for cross-border e-commerce in the evolutionary perspective.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.77
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• pp.43-67
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• 2018

Arbitration is one of alternative dispute resolution systems which settle a dispute by arbitrators(private persons) based on a contract between contracting parties without a judicial litigation system involved. As a valid arbitration agreement is an essential requirement for commencement of arbitration, the first thing to be determined is whether there is a valid arbitration agreement or not when a dispute is submitted. A consumer arbitration agreement usually exists as an arbitration clause in an adhesive contract between consumers and a seller. When consumers buy a product from a seller, they are requested to agree on a general terms and conditions which are unilaterally drafted by a seller in advance. These terms and conditions are not negotiable because it is an adhesive contract and consumers are placed in "take-it-or-leave-it" position. Therefore, even though there is an arbitration agreement between consumers and a seller, it has to be carefully considered whether it has a legal effect or not. In this respect, a court will examine if an arbitration agreement has procedural unconscionability and substantive unconscionability. Therefore, as U.S is a well-advanced and arbitration-friendly country, this paper analyzes four U.S cases to find out (i) what a court considers, (ii) how a court examines and interprets procedural and substantive unconscionability and (iii) if there has been a change in regard to a court's decision. By doing so, it will provide some suggestions and guidelines for a consumer arbitration in Korea.

• The Korean Society of Law and Medicine
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• v.11 no.1
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• pp.11-52
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• 2010

Medical Dispute Arbitration Law had been debated on its legislation several times since Korean Medical Association's submission of the bill to the National Assembly in 1988, eventually in December, 2009, passed the National Assembly Standing Committee and was laid before the Legislation and Judiciary Committee, and thus its legislation is now near at hand. During the long process, it has provided a hot issue with our society. And yet, Medical Dispute Arbitration Law has differed considerably in legislative content depending on the main body of proceeding the enactment, which subsequently was given the mixed comments of 'Act on Malpractice-related Damage Relief' or 'Medical Indemnity Act', and this legislative bill also cannot be free from this debate. It is desirable that medical disputes between doctors and patients be resolved through conciliation between the parties concerned. But, because reaching a compromise is difficult owing to deep emotional conflicts between the parties, difficulties in investigating a cause and requiring a high amount of settlement money, etc., it is inevitable to seek a resolution by third party intervention. By the way, such an arbitration by third party is based on the compromise of the interested parties and thus has a limitation of not being able to satisfy both parties completely. Therefore, the legislative bill made for arbitration of medical disputes between the parties will have to prepare an institutional system for the parties to easily understand and accept. Also, problems occurred in the legislative bill will have to be corrected through an in-depth discussion in order for the legislative bill to work as an effective system.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.19
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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.

• Health Policy and Management
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• v.1 no.1
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• pp.72-94
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• 1991

The number of disputes between physicians and patients caused by medical malpractice are showing a sharp increasing over the past several years. The disputes on medical malpractice may be resolved either in court or by direct negotiation between both sides concerned. There are no special acts relating to the civil or penal liability of the physicians in Korea. The medical disputes are decided merely through legal technicalities and without reference to actual medical practice. The current system which does not compensate injured patients adequately or equitably leads to taking a long time consuming for dispute resolution processes. The things make worsed, the problem is due to not being of insurance system or a proper funds for compensation. This research proposes a outline of new and comprehensive alternative for these problems and failure of conventional resolution of medical disputes. So far, we have learned lessons from the excperiencies of resolving medical malpractice disputes of Japan and the United States. The proposal first calls for an administrative arbitration and pretrial screening panels as a condition precedent to trial. The proposal also includes to facilitate with the funds for compensating the injured.

• 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 Arbitration Studies
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• v.27 no.4
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• pp.115-131
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• 2017

The purpose of this paper is to consider key issues and to categorize international arbitrations on industrial significance. Thus this study focused on synthesizing industrial significance, retaining international competitiveness, and securing national implications of international arbitration as a legal service trade system. To obtain these goals, the liberalization of international arbitration proxy service, invitation of international arbitration board regional offices such as PCA to AAA-ICDR, and drawing of international mediation institutions to invigorate the legal service market should be exerted. To revitalize the international arbitration, it would be renounced the control rights of economy-related disputes with internationalism while policies should be improved to enhance the execution of arbitration agreements and awards. It is emphasized the necessities of the process through the institutional mediation agency to resolve more court mediation and international dispute cases, and to handle international arbitration cases after training professional legal experience through cooperation with international arbitration boards such as LCIA, ICC, AAA, and PCA. Ultimately, to revitalize the international arbitration, the industrial significance of arbitration should be analyzed and the critical industrial influence of arbitration such as in the semiconductor, petrochemistry, and ICT sectors should be expanded to gain the competitiveness of the global legal service market with the assistance of institutional complementary measures.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.239-257
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• 2011

This article examines the requirements of Article 37 of the ICDR International Arbitration Rules and issues that could arise if a party petitions a U.S. Federal Court to enforce an emergency arbitrator's Article 37 decision to grant pre-arbitration provisional relief. On May 1, 2006, ICDR introduced a new procedure for the granting of emergency arbitral relief under its ICDR Rules. The procedure enables a party to apply for emergency interim relief before the appointment of an arbitrator or tribunal to adjudicate the merits of the dispute. Instead, the application for emergency relief is considered by an emergency arbitrator appointed by the ICDR. In short, the ICDR has quickly appointed emergency arbitrator and resolved a challenge to an appointment within 36 hours. In addition, the emergency decisions have been issued within just a couple of weeks. In particular, we looked at what would happen after Article 37 emergency relief is granted. Based on my examination of U.S. cases on the enforceability of interim awards and orders, We conclude that U.S. courts would enforce Article 37 interim measures, whether they are characterized by the emergency arbitrator as an interim order or award. Where the situation warrants, arbitration executives should embrace and use emergency relief procedure of ICDR Rules.