• 한국중재학회지:중재연구
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• 제33권1호
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• pp.3-22
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• 2023

The purpose of this study is to present implications by analyzing the Swiss Federal Court's annulment of the arbitration Awards in Court of Arbitration for Sport(CAS). As international interest in the sports sector increases, related disputes are also increasing. Therefore, the role of CAS specializing in sports disputes is becoming very important. In particular, the Swiss federal court's annulment of the arbitral awards made by the CAS could contribute significantly to the development of sports arbitration in the future. Looking at the case analyzed in this study, first of all, it is about the partiality of the arbitrator. The court judged that the arbitrator posted and shared racist articles on SNS, which could be sufficiently biased. Next, it is about the uncertainty of the arbitration clause. The arbitral award was finally canceled due to the issue of whether the CAS could make an arbitral award with jurisdiction over a clause that includes both dispute resolution through a sports organization and dispute handling in a national court. As a result of the analysis of this study, in the case of unclear arbitration provisions, it will be necessary to prepare an arbitration agreement. In addition, in the case of unclear arbitration provisions, it will be necessary to prepare a post-arbitration agreement. Finally, in order to revitalize sports arbitration, it will be necessary to train professional arbitrators in Korea, support them to work internationally, and establish specialized arbitration institutions.

• 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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• 제20권2호
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• pp.49-65
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• 2010

The expanded role of courts in arbitral procedures is said to have certain detrimental effects on the cost-effective approach to arbitration. This is the case when the court is appointing an arbitrator, pursuant to the specific domestic legal regime. The danger of decisions, especially those with expanded role of courts can create delays and hurdles. Even with contradictory viewpoints, the role of the court should complement the arbitral tribunal and not impede the functioning of arbitration independent of the judicial system. In this paper, two recent cases in Korean Supreme Court are reviewed, trying to find the proper implications on further arbitration practices especially in the stage of arbitrator appointment. Even though the proper appointment of arbitrators is essential to the existence of valid arbitration proceedings, appointment of arbitrators by the courts should constitute an administrative power, and not a judicial power. The cases reviewed make clear that the court must play a facilitative role in international commercial arbitration by assisting the parties in appointing the arbitral tribunal, the court intervention must be kept to a minimum.

• 무역상무연구
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• 제69권
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• pp.261-301
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• 2016

Recently the abusive calls on on-demand bonds have been a critical issue among many engineering and construction companies in Korea. On-demand bond is referred to as an independent guarantee in the sense that the guarantee is independent from its underlying contract although it was issued based on such underlying contract. For this reason, the issuing bank is not required to and/or entitled to look into whether there really is a breach of underlying contract in relation to the call on demand-bonds. Due to this kind of principle of independence, the applicant has to run the risk of the on demand bond being called by the beneficiary without due grounds. Only where the call proves to be fraudulent or abusive in a very clear way, the issuing bank would not be obligated to pay the bond proceeds for the call on on-demand bonds. In order to prevent the issuing bank from paying the proceeds under the on-demand bond, the applicant usually files with its competent court an application for injunction prohibiting the beneficiary from calling against the issuing bank. However, it is in practice difficult for the applicant to prove the beneficiary's call on the bond to be fraudulent since the courts in almost all the jurisdictions of advanced countries require very strict and objective evidences such as the documents which were signed by the owner (beneficiary) or any other third party like the engineer. There is another way of preventing the beneficiary from calling on the bond, which is often utilized especially in the United Kingdom or Western European countries such as Germany. Based upon the underlying contract, the contractor which is at the same time the applicant of on-demand bond requests the court to order the owner (the beneficiary) not to call on the bond. In this case, there apparently seems to be no reason why the court should apply the strict fraud rule to determine whether to grant an injunction in that the underlying legal relationship was created based on a construction contract rather than a bond. However, in most jurisdictions except for United Kingdom and Singapore, the court also applies the strict fraud rule on the ground that the parties promised to make the on-demand bond issued under the construction contract. This kind of injunction is highly unlikely to be utilized on the international level because it is very difficult in normal situations to establish the international jurisdiction towards the beneficiary which will be usually located outside the jurisdiction of the relevant court. This kind of injunction ordering the owner not to call on the bond can be rendered by the arbitrator as well even though the arbitrator has no coercive power for the owner to follow it. Normally there would be no arbitral tribunal existing at the time of the bond being called. In this case, the emergency arbitrator which most of the international arbitration rules such as ICC, LCIA and SIAC, etc. adopt can be utilized. Finally, the contractor can block the issuing bank from paying the bond proceeds by way of a provisional attachment in case where it also has rights to claim some unpaid interim payments or damages. This is the preservative measure under civil law system, which the lawyers from common law system are not familiar with. As explained in this article, it is very difficult to block the issuing bank from paying in response to the bond call by the beneficiary even if the call has no valid ground under the underlying construction contract. Therefore, it is necessary for the applicants who are normally engineering and construction companies to be prudent to make on-demand bonds issued. They need to take into account the creditability of the project owner as well as trustworthiness of the judiciary system of the country where the owner is domiciled.

• 한국중재학회지:중재연구
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• 제29권3호
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• pp.3-22
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• 2019

An issue of human rights abuse in business emerged as a serious social problem recently not only in Korea, but also worldwide. However, the stipulations in 'UNGPs' and 'OECD Guidelines' do not provide a legally binding dispute settlement mechanism. Under these circumstances, it is very well timed that the Working Group on International Arbitration of Business and Human Rights recently published the Draft Hague Rules on Business and Human Rights Arbitration, which will be launched in December 2019 as an effective and efficient alternative to mediation or court litigation. This paper examines the purpose, the structure, and the unique features of the Draft Hague Rules, among other provisions, including 1) Inequality of Arms between the Parties, 2) Appointing Authority, 3) Presiding Arbitrator's Qualification, 4) Evidentiary Procedures, 5) Remedy, and 6) Governing Law.

• 무역상무연구
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• 제33권
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• pp.145-164
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• 2007

The Arbitration costs provided in Article 31 consist of arbitrators' fees, arbitrators' expenses, ICC administrative expenses, expenses of experts appointed by the Arbitral Tribunal, and parties' costs. Among them the first three items are independently determined by the Court in accordance with the Scale, while another two items are determined by the arbitrator and each party. The three items determined by the Court are communicated by Secretariat to the Arbitral Tribunal for inclusion in the award following the approval of the draft submitted to the Court. Also the final award may decide which of the parties shall bear them or in what proportion they shall be borne by the parties. According to Article 31(3), the arbitrators have complete jurisdiction or discretion to allocate the costs. Three common approaches are as follows; First, all of the costs are borne by the losing party. Second, all of the costs are allocated in proportion to the outcome of the case. Third, all of the costs determined by the Courts are shared equally by the parties and both parties bear their own costs. But, both parties may include intentions in accordance with the principle of party autonomy. For example, if the parties wish to ensure that the arbitration costs be shared equally and that the arbitrator make no allocation of costs or fees, the following sentence could be added to the arbitration clause in their contract. "All costs and expenses of the arbitrators [and the arbitral institution] shall be borne by the parties equally; each party shall bear the costs and expenses, including attorneys' fees, of its own counsel, experts, witness and preparation and presentation of its case" And also, if the parties wish expressly to link any allocation of costs, and fees to the result of the award the following could be added to the arbitration clauses. "The arbitrators may award to the prevailing party, if any, as determined by the arbitrators, its costs and expenses, including attorneys' fees"

• 한국중재학회지:중재연구
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• 제23권3호
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• pp.185-212
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• 2013

In this paper, a conceptual model of legal culture based on Ehrlich's "living law" theory and Cole's social-cultural explanation can explain the low utilization rates of arbitration of Japan and the high utilization rates of arbitration in the United States, simultaneously. This model highlights the clash between social norms and legal provisions in Japan. Japan has developed a two-tiered system of dispute resolution. At the official level, Japanese people accept the legal system imposed by the outside world. But, at a deeper level, they utilize diverse forms of informal dispute resolution mechanisms, such as reconcilement and conciliation, reflecting their own social norms. In contrast, there is no conflict between social norms and legal provisions in United States. This study may show that there are distinctions between American-style arbitration and Japanese-style arbitration, reflecting their own respective social norms. The question of reconciliation between the American style of arbitration and the Japanese style of arbitration can be resolved by an international arbitrator.

• International Journal of Computer Science & Network Security
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• 제23권7호
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• pp.32-38
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• 2023

This study deals with arbitration award via modern technical means; because e-Arbitration is deemed to be one of the most important substitute means for the settlement of disputes arising from electronic transactions. This type of arbitration is characterized by fast settlement of disputes, as well as fast enforcement of awards rendered thereon. The researcher seeks to indicate the content of the award, the conditions for rendering it, and to analyze the legal provisions related to its legal basis in the Saudi Law of Arbitration. This study shows that an arbitration award, rendered via modern technical means has a number of advantages, such as fast settlement, less cost, and keeping pace with modern technology, which is an aim of Saudi Arabia Vision 2030. The study also points out certain problems facing arbitration via technical means; however, the most important of which is the insufficiency of some legal rules associated with traditional arbitration, as contained in the Saudi Law of Arbitrator, which are incompatible with or applicable to an arbitration award which is rendered via modern means.

• 무역상무연구
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• 제29권
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• pp.39-61
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• 2006

The governing law in international commercial arbitration may be divided into governing arbitration law and governing substantive law. The former governs the parties' arbitration agreement and the conduct of any subsequent arbitration. But the later governs the parties' substantive rights and obligations, which means the law that governs contract formation and performance, and the law to be applied by the arbitrator to the merits of the dispute. The purpose of this paper is to examine how to determine the substantive governing law when there is express choice or implied choice between parties. Moreover this author checked any restrictions on party autonomy and also any possibilities to deviate from the governing law. In case of express choice the sources of the law or rules of law might be the national law of one of the parties, the neutral law, the general principles of law or lex mercatoria according to the arbitration law selected by the arbitral tribunal. Some arbitration laws or rules empower the arbitrator to decide the case ex aequo et bono or to act as amiable compositions. If the governing law could be determined expressly or impliedly by the parties, the arbitral tribunal would make a selection. In this case the criteria for selecting a governing law are not exactly same from country to country. But failing any indication by the parties as to governing law, the arbitral tribunal should apply the rules of law, the law or the law under the rule of conflict that the arbitrators consider applicable, according to the governing arbitration law. Among the connecting factors offered by the conflict rules, (which means the factors that the arbitrators consider applicable), some legal systems give precedence to the formation of the contract, other system to the place of performance of the contract, and others to the closest connection or centre of gravity. But the Rome Convention, which unified the conflict rules of the contracting states, gives precedence to the law of the domicile of the party which has to effect the performance which is characteristic of the contract. Finally this author suggested the Choice of Law Clause which covers governing substantive law and governing arbitration law at the same time. Thus the UNIDROIT Principles as well as any national law may be included as a governing law in international arbitration. So when we make sales or service contract, we should take into consideration of the UNIDROIT Principles as a governing law or a supplement to the governing law.

• 무역상무연구
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• 제55권
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• pp.125-154
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• 2012

The International Chamber of Commerce (ICC) has published revised rules of arbitration, which come into force on 1 January 2012 (the ICC Rules 2012). The ICC Rules 2012 apply to all arbitrations commenced on or after 1 January 2012, unless the parties have agreed to submit their arbitration to the rules in effect on the date of their arbitration agreement (Article 6(1)). The ICC Rules 2012 explicitly require both the arbitrators and the parties to make every effort to conduct the arbitration in an expeditious and cost-effective manner. The changes will force participants to define more aspects of their claims and outline the merits of the dispute earlier on in the process. The Rules also contain new penalties for behaving in a way that undermines the process's efficiency. The new Rules permit the tribunal, when making allocating costs, to take into account the extent to which each party has conducted the arbitration in an expeditious and cost-effective manner. Entirely new provisions relate to the emergency arbitrators, case management, and multi-party arbitrations. The ICC Rules 2012 take into account developments in arbitration practice and procedure, and in information technology, since the last revision of the rules in 1998, the aim being to provide modern and flexible procedures that promote efficiency in the arbitral process.