• Journal of Arbitration Studies
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• v.11 no.1
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• pp.121-143
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• 2001

Arbitration agreement is an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of defined legal relationship, whether contractual or not. Arbitration has become increasingly popular in settling international and domestic commercial disputes nowadays. The importance of arbitration agreement cannot be overemphasized. It is the most reasonable way to settle commercial disputes. There are two types in arbitration agreement. one is arbitration clause, the other is submission agreement. The arbitration agreement must be made in writing, in addition, other communication instruments shall be considered as effective arbitration agreement if they are properly documented. Over the past few decades, a considerable number of studies have been conducted on the legal property of arbitration agreement in Germany and Japan. Its legal property is aspect of substantial law contract. The basis of arbitration agreement is the principle of party autonomy. The important effect of arbitration agreement is to preclude jurisdiction from national court. The respondent shall raise a plea not later than when submitting his first defense on the merits of the action. As positive effect of arbitration agreement, the court must support the conduct of arbitral proceedings and arbitrator can be appointed upon request of a party.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.49
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• pp.61-86
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• 2011

Korea Supreme Court has given thirty-nine time's judgments on enforcement of Arbitral awards for thirty-six arbitration cases and made four time's decision on the arbitration cases since Korea arbitration act was enacted in 1966. Most of the arbitration cases appealed to the Supreme Court was to obtain the recognition and enforcement of arbitral awards or to set aside the arbitral awards according to the Korea arbitration Act article 36 and article 37, by reason of (a) a party to the arbitration agreement was under some incapacity under the law applicable to him or the said agreement is not valid under the law to which the parties have subjected it, or failing any indication thereon, (b) a party making the application was not given proper notice of the appointment of the arbitrator or arbitrators or of the arbitral proceedings or was otherwise unable to present his case (c) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of the submission to arbitration. However, 5 cases of these arbitral awards were refused to obtain the enforcement of Arbitral awards and have been cancelled finally by the Supreme Court only by the New York Convention of 1958.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.51-88
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• 2006

The obligation on a national court to recognize and enforce arbitral awards as provided in Article III New York Convention, which both Korea and China have ratified, is subject to limited exceptions. Recognition and enforcement will be refused only if the party against whom enforcement is sought can show that one of the exclusive grounds for refusal enumerated in Article V(1) New York Convention has occurred. The court may also refuse enforcement ex officio if the award violates that state's public policy. This article explores the circumstances where arbitral awards may be refused enforcement under the Korean and Chinese arbitration laws. It first analyzes the relevant statutory provisions. In Korea and China, which have adopted the UNCITRAL Model law, the grounds of challenge are exhaustively defined within their respective arbitration laws. According to their arbitration laws, an arbitral award may be set aside if a party making the application proves that (i) a party to the arbitration agreement was under some incapacity or the agreement is not valid under the applicable law, (ii) the party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case, (iii) the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration, or (iv) the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties. An arbitral award may also be set aside ex officio by the court if the court finds that (i) the subject-matter of the dispute is not capable of settlement by arbitration under the applicable law or (ii) the award is in conflict with the public policy. This article then reviews relevant judicial decisions rendered in Korea and China to see how the courts in these countries have been interpreting the provisions specifying the grounds for challenging arbitral awards. It concludes that the courts in Korea and China rarely accept challenges to arbitral awards, thereby respecting the mandate of the New York Convention.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.69
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• pp.523-541
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• 2016

According to Chinese Arbitration Law, combination of mediation with arbitration means that in the process of arbitration, arbitrator may conduct mediation proceedings for the case they are handling, provided both parties agree to do so. If mediation succeeds and the parties reach a settlement agreement, the arbitrators may render a consent award or a written mediation statement in accordance with the contents of the settlement agreement. If mediation fails, the arbitration proceedings will be resumed until the case is concluded by making of an arbitral award. There is no formal name of this system in China, it is called "combination of mediation with arbitration", "mediation in arbitration process" or "arbitration-mediation", the author of this thesis select "arbitration-mediation" and make it simply as "Arb-Med". This thesis concentrates on three issues that arbitrators and the parties have to clarify and pay attention to once they choose to use Arb-Med. The first part is about the 'waivable problems', include waive the right to challenge a arbitrator who act as a mediator at the same time with parties' approval, as well as the question about the waiver of the arbitrator's duty to disclose confidential information obtained during mediation. The second part is 'public policy in Arb-Med', introduces the concept of public policy, the bias may arise the complaint about public policy, and the due procedure problem. And the last part is about the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration, especially about the award including some contents which has relation to third party's interests.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.25-44
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• 2009

The purpose of this parer is to examine the specifies of Institutional Arbitration and Ad Hoc Arbitration. The court prefers the institutional award in the enforcement rather than the award issued under the name of arbitrators alone. For example, the ICC Court of Arbitration scrutinizes awards for completeness, adherence to the ICC Rules and internal consistency, which since the court assurance for enforcement. In terms of arbitration costs, for which the ad hoc arbitration is considered to have comparative advantages, the institutional arbitration may not be more expensive than ad hoc arbitration, as in most commercial case, the administrative fees are insignificant. This paper suggests the standard or model arbitration clauses in institutional and ad hoc arbitrations. These Clauses contains the minimum elements necessary to render the arbitration agreement enforceable and effective. So both parties may add the specific contents such as the number of arbitrator, the place of arbitration and the language. Especially, in Ad Hoc Arbitration without designated set of rules, more clean clause for appointing arbitrators will be needed.

• Journal of Arbitration Studies
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• v.21 no.1
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• pp.33-56
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• 2011

Korea Supreme Court has cancelled four cases of thirty-nine Arbitral awards made by Korean Commercial Arbitration Board since Korea arbitration act was enacted in 1966. Three cases of them were cancelled by the reason of the arbitrator's disqualification in relation to impartiality or independence and the other to arbitration agreement enable to select the lawsuit or arbitration. When a person is approached in connection with his possible appointment as an arbitrator or has already been appointed as such, he shall without delay disclose all circumstances likely to give rise to justifiable doubts as to his impartiality or independence according to the one of the article 13 of Korean Arbitration Act. Upon being notified of the appointment as an arbitrator, each arbitrator shall immediately disclose in writing to the Secretariat any circumstances which might cause reasonable doubt about impartiality or independence. An arbitration agreement shall be made clearly and in writing not to appeal to the court or to be brought in the court. However most of the korean construction contracts have the arbitration agreement clause enable to appeal to the court or the arbitration on government official's advice. Many of these disputes are resolved by litigation after the precedent(Law case number : 2003da318) set by the Supreme Court on August 22, 2003 between the Korea(government) and the Korea Railroad or abandoned its attempt to arbitration. But each year, about four hundreds of arbitration business transactions were resolved arbitration, the voluntary submission of a dispute to an impartial person or persons for final and binding determination. Arbitration has proven to be an effective way to resolve these disputes privately, promptly, and economically.

• The Korean Society of Law and Medicine
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• v.10 no.2
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• pp.343-405
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• 2009

This paper is to discuss essential business of hospital business. While the labor world and ILO made continuous recommendation for improvements towards the compulsory arbitration system along with the controversy over unconstitutionality of the system, the Constitutional Court ruled that the system is constitutional on December 23, 1996(90hunba19) and on May 15, 2003 (2001hunga31). Despite this decision from the Constitutional Court, there has been much controversy over whether the compulsory arbitration system infringes the rights of collective action against the principle of trade union & labor relations adjustment which allows Commissioner of the Labor Relations Commission to decide on submission of arbitration by virtue of his/her authority in case where industrial disputes take place in the essential public-service businesses. The revision on the above provision was closely examined from the year 2003 and an agreement was made on the abolition of the compulsory arbitration system and the introduction of essential business with a grand compromise among labor unions, employers and the government on September 11, 2006 followed by revision(Essential business system enacted on January 1, 2008) of the Trade Union & Labor Relations Adjustment Act on December 30 in the same year. Accordingly, in order to perform the essential business, parties to labor relations must have an agreement or obtain a decision by the Labor Relations Commission before taking industrial actions. This paper firstly examined the concept of essential public-service businesses and essential business, legal meaning of essential business, procedures for making agreement and decision and legal effects. Secondly it intensively explored a theory against the principle of the legality which was raised from some part of society. In other words, it is claimed that a theory against the principle of the legality is not consistent with the rule of legislation and some abstract wording is against void for vagueness doctrine because part of crime constitution requirements is delegated to the Presidential Decree or to consultation among parties to labor relations. But analysis on the rule of legislation and void for vagueness doctrine reflected in the decision by the Constitutional Court led that argument for a theory against the principle of the legality is not reasonable. Close examination was done on a formal act of essential business agreement and necessity of prior agreement before submission of decision to the Labor Relations Commission which might have difficulties in performing work. In addition, an example agreement on hospital essential business is attached to help you understand this paper better.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.91-110
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• 2018

Consumers repeatedly make small sum purchases through business-to-consumer contracts, usually without incident. Consumer areas have been increasing; therefore, consumer disputes have been occurring frequently as well. In international consumer transactions, it is not easy to solve consumer disputes by applying the laws of different countries. Resolving disputes by using the consumer arbitration system can be a measure to protect consumers. In the U.S., a class arbitration is being operated as a mixed dispute resolution system of class action and arbitration. Consumer Arbitration has long been a controversial issue in the U.S. It is therefore a lesson for us to examine related cases. A recent U.S. Supreme Court decision, DIRECTV v. Imburgia, was looked into and after a summary of the facts, issues, and opinions and opposing opinions that had a tight controversy, a close analysis was done. The analysis through this judgment is as follows: first, the contraction of consumer protection; second, the expansion of the Federal Arbitration Act scope; third, the class arbitration's restriction; and fourth, the submission of the arbitration fairness act.

• Journal of Arbitration Studies
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• v.21 no.2
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• pp.47-64
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• 2011

The China International Economic and Trade Arbitration Commission(CIETAC) released online arbitration rules which apply the resolution of disputes over electronic commerce transactions, as well as other economic and trade disputes in which the parties agree to do. The evidence submitted by the parties may be electronic evidence created, sent, received or stored by electronic, optical or magnetic means. Electronic evidence with a reliable electronic signature shall carry the same effect and probative force as a document with a hand-written signature. Where a case is tried in a tribunal, the arbitration tribunal shall conduct an online trial hearing using internet video conference or other electronic or computer communication means. Unless the parties have another agreement, summary procedure shall apply to cases where the amount in dispute exceeds RMB 100,000 but no more than RMB 1 million, or where the amount in dispute exceeds RMB 1 million and a party submits a written application for summary procedure after obtaining the written consent of the other party. Unless the parties have agreed otherwise, fast-track procedure shall apply to cases where the amount in dispute does not exceed RMB 100,000 or where the amount in dispute exceeds RMB 100,000 and a party submits a written application for fast-track procedure after obtaining the written consent of the other party. Notable features of the Online Rules are as follows; first, there is not detailed consideration for online arbitration. Second, communications between the parties and the tribunal are allowed only through the Secretariat. Third, elaborate provisions regarding the electronic submission and transmission of documents is provided for. Forth, various factors must be considered by the tribunal in deciding the evidence's reliability. Fifth, reasonable endeavours is levied on CIETAC to keep data communications secure and encrypted. Sixth, the tribunal has the right to investigate and collect relevant evidence. And finally different procedures are provided for in consideration of the various types of E-commerce.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.31
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• pp.81-106
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• 2006

The Terms of Reference are one of the most distictive features of ICC Arbitration. No document of this type is required to be drawn up under the rules of any of the other major international arbitration institutions. The purpose of this paper is to examine their advantages and to introduce main contents provided in Article 18 of ICC Rules of Arbitration, which results in the wide recognition of the Terms of Reference. As the volume of our international commercial transaction ranks almost ten in the world, the frequency using ICC Arbitration is expected to increase continuously. The Terms of Reference provide the parties and the arbitrators with an opportunity to identify and agree on procedural and other matters, such as the applicable law, the language of the arbitration and the timetable for the arbitration. They also afford the parties and the arbitrators to identify the substantive issues that are addressed in the arbitration and to delimit the precise scope of the Arbitract Tribunal's mandate. The contents of the Terms of Reference which are provided in Article 18(1) include the summary of parties claims, the list of issues and procedural rules. For the effects of the Terms of Reference, they are not intended to replace the parties' arbitration agreement. But they may in certain circumstances be regarded as a form of submission agreement. Article 18(2) provides that the Terms of Reference shall be signed by the parties and the Arbitral Tribunal, and requires the Arbitral Tribunal to transmit a signed copy of the Terms of Reference to the Court within two months of the date on which the file was transmitted to it by the Secretariat. The Court enjoys the power to extend the two-month time limit for the Terms of Reference on the reasoned request of the Arbitral Tribunal or on the Court's own initiative. Article 18(3) provides that if any of the parties refuses to take part in the drawing up of the Terms of Reference or to sign the same, they shall be submitted to the Court for approval. Article 18(4) allows the Arbitral Tribunal to extablish in a separate document a provisional timetable. This is a provision that encourages the acceleration of the arbitraction process. The timetable provided for therein is merely "provisional" and may be modified, as necessary, during the course of the arbitration.