• Journal of Arbitration Studies
• /
• v.33 no.1
• /
• pp.51-76
• /
• 2023

It is important who is bound by an arbitration agreement and what is the subject of the agreement in resolving disputes through arbitration. However, there are no provisions on them in the Korean Arbitration Act. Where an arbitration agreement is valid, the persons who are bound by the agreement cannot bring the claims which are the subject of the agreement to a court. Therefore, in determining the subjective scope of the effect of an arbitration agreement, we should make allowances for the essential qualities of arbitration to ensure the efficient resolution of disputes on the basis of the parties' agreement, and take caution not to infringe on the rights to be tried in court. Where the rights or legal relationships constituting the dispute that is the subject of the arbitration agreement have been assigned, the effect of the arbitration agreement between the predecessor and the other party should be extend to the successor, when it is agreed to transfer the status under the arbitration agreement to the successor between the three. However, in the absence of such an agreement, it is necessary to weigh the interests between the predecessor, the other party and the successor to determine whether the arbitration agreement has any effect on the successor. Arbitration is a method of resolving disputes based on the agreement of the parties. If it matters whether third parties who are not parties to the arbitration agreement is bound by the arbitration agreement or may invoke it, it should be resolved according to the intentions of the parties. Where the parties to an arbitration agreement have agreed to allow a third party to invoke the arbitration agreement, the effect of the arbitration agreement will extend to the third party. However, even if the parties to the arbitration agreement have not expressly agreed on this, when it is recognized that the parties have sought to resolve the dispute through arbitration even in relation to a third party by exploring the reasonable intentions of the parties, the effect of the arbitration agreement will extend to the third party.

• Journal of Arbitration Studies
• /
• v.19 no.2
• /
• pp.27-47
• /
• 2009

Concepts of mediation and conciliation as alternative dispute resolutions are often confusingly used. As to what is meant by mediation and conciliation, there is no uniform legal definition. However, there has been a distinction between two methods of dispute settlement under the international law (UN Charter, WTO DSU, NAFTA, EU mediation directive, WIPO Mediation Rules) although there is no clear definition on the terms of mediation and conciliation. And also under the domestic law such as U.K, France, Germany, a clear distinction has been made between two terms. Mediation means a facilitated negotiation between two parties through the intervention of a third party. A third and neutral party (mediator) help the parties in dispute to find their solution by managing a certain mediation protocol and facilitating communication between the parties while in conciliation, a third party evaluative the case and can suggest the parties a legally non-binding solution. Once the parties accept it, it becomes binding between them. However, in the U.S,, it seems that there is no practical use of distinguishing mediation and conciliation. The term of mediation is more commonly used than the term of conciliation and it has two kinds of mediation such as facilitative and evaluative mediation. Korea's conciliation system is close to conciliation or evaluative mediation. In conclusion, what is distinct between mediation and conciliation is the role of third party. If a neutral third party takes a role of advisor or facilitator, then he or she may employ a proper protocol to help the parties to find themselves their solution (mediation) while if a neutral person plays a role of evaluator, then he or she listens to the parties and suggest a solution to them (conciliation).

• The Korean Journal of Air & Space Law and Policy
• /
• v.1
• /
• pp.163-191
• /
• 1989

The accident of the midair collision, passengers' falling or goods' dropping occurs or supersonic aircraft make a sonic boom during their conveying passengers or goods to the destination. The accident in transmit damages the their parties on the surface or their properties. In these cases, the third parties who were harmed to their lives or properties have the right to claim damages against the air carrier who caused them. These matters have become one of the important things since aircraft conveyed passengers and goods. Therefore, it is a great concern to settle these matters by law. But the Safety of the present aircraft has been much increased and the aircraft have become larger in size. Its flight altitude became higher than before. So the relationship of the aircraft to the third parties is much different from that of the earlier aircraft. The air transport is now indispensable to our life. It is not so easy to control these matters. In the early part of 20th century, when the third parties suffered the damage, many European countries made laws on the basis of the principle of liability without fault. But each country had a variety of its own law, and different kinds of difficulties have been brought about. Accordingly, the Rome Convention on Surface Damage (1933, 1952, 1978) has been made and revised. In spite of being revised, it contains many problems, and is not carried into effect world-wide. On the other hand, there are no regulations about the compensation of the third parties damaged in Korean existing laws. In case the damage is brought about to them, it is obviously true that the settlement of the liability of compensation for damage should be made by the general principle on the tort in domestic laws. At this point, it is urgent that we make a special law though the domestic legislation as a preliminary measure before we sign the international convention to save third damaged. It is desirable that we should, for the responsibility of the air carriage for the demage of the third parties on the surface, bring in the theory of the absolute liability in view of the legislation of many conutries. As the aircraft fly in the sky, their flight always contains some danger. It is very difficult to prove the fault, and the operator should suffer the principle of liability without fault or the similiar one. In case the liability without fault will be imposed upon the operator for the damage of the third parties, it is necessary to bring in the liability protection system for the protection and up upbringing of the air carriage. The Burden of danger of the air carriage will be reduced by introducing the system. A domestic legislation measure should be necessarily taken as soon as possible as a legal security measure on these matters.

• International Journal of Computer Science & Network Security
• /
• v.23 no.10
• /
• pp.214-224
• /
• 2023

Fraudulence, cheating, and deception can occur in the commercial real estate (CRE) industry, besides the difficulty in searching for and transferring properties while ensuring the operation is processed through an authoritative source in a trusted manner. Nowadays, real estate transactions use neutral third parties to sell land. Indeed, properties can be sold by the owners or third parties multiple times or without a proper deed. Moreover, third parties request a large amount of money to mediate between the seller and buyer. Methods: We propose a new framework that uses a private blockchain network and predefined BPMN instances to enable the fast and easy recording of deeds and their proprietary transfer management controlled by the government. The blockchain allows for multiple verifications of transactions by permitted parties called peers. It promotes transparency, privacy, trust, and commercial competition. Results: We demonstrated the easy adoption of blockchain for land registration and transfer. The paper presents a prototype of the implemented product that follows the proposed framework. Conclusion: The use of Blockchain-based solutions to resolve the current land registration and transfer issues is promising and will contribute to smart cities and digital governance.

• The Korean Journal of Air & Space Law and Policy
• /
• v.23 no.1
• /
• pp.33-54
• /
• 2008

The damage to the third parties caused by aircraft in flight shall be fully compensated to the extent that the damage didn't occur unless the damage is caused by innocent victims. However, related international Conventions limit operator's liability of compensation to certain levels, which is one of the main reasons that such international Conventions have not been ratified by many aviation leading States. However, international community has agreed, since 9/11, that the accidents caused by terrorists and the protection of the third parties need to be addressed more actively. And the amendment of the related Rome Conventions has been drafted under the ICAO leadership by the special committee that was organized to modernize the related international Conventions. This study addresses the issues related to the draft Conventions, the draft Convention for Damage caused by Aircraft to Third Parties, in case of Unlawful Interference and the draft Convention on compensation for Damage caused by Aircraft to Third Parties. It is expected that it takes considerable time to reach an agreement on all the issues from appropriate apportionment of liability between the government and operator to the details regarding the management of Supplementary Compensation Mechanism. Under the circumstances where the needs for the air transportation as well as threats of terrorism increase, the new international Convention should be prepared taking into consideration the balance between the protection of the innocent third parties and that of air transport industry including air carriers. Along with this, the Republic of Korea should actively participate in the process of amendment to the related international Conventions to protect the life and property of the people from anticipated damages.

• The Korean Journal of Air & Space Law and Policy
• /
• v.21 no.1
• /
• pp.65-95
• /
• 2006

It is essential that the liability for damage on the surface caused by aircraft be regulated at international level. However, the Rome Convention on Damage Caused by Foreign Aircraft to Third Parties on the Surface of 1952 and the Montreal Protocol of 1978 did not have significant worldwide repercussions since few countries have ratified them. So the Secretariat ofthe ICAO has produced the draft Convention for the modernization of the Rome Convention in 2002 and the Special group has considered the text of the draft Convention so far. The draft Convention contains main issues with regard to the liability system of the operator and the insurability of the risks for damage to third parties on the ground. In order to protect the air transport sector of a country as well as to facilitate speedy recoveries by victims, Work on modernizing the Rome Convention should be continued and the new Convention should be finalized in the near future.

• The Korean Society of Law and Medicine
• /
• v.11 no.1
• /
• pp.11-52
• /
• 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 Korean Journal of Air & Space Law and Policy
• /
• v.22 no.2
• /
• pp.27-51
• /
• 2007

The cumulative result of the work by the ICAO Secretariat, the Secretariat Study Group and the Council Special Group on the Modernization of the Rome Convention of 1952 are two draft Conventions, namely: "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties, in case of Unlawful Interference", and "Draft Convention on Compensation for Damage Caused by Aircraft to Third Parties" The core provisions of the former draft Convention are as follows: The liability of the operator is strict, that is, without the necessity of proof of fault. It would be liable for damage sustained by third parties on condition only that the damage was caused by an aircraft in flight(Article 3). However, such liability is caped based on the weight of the aircraft(Article 4). It is envisaged to create an independent organization called the Supplementary Compensation Mechanism, with the principle purpose to pay compensation to persons suffering damage in the territory of a State Party, and to provide financial support(Article 8). Compensation shall be paid by the SCM to the extent that the total amount of damages exceeds the Article 4 limits(Article 19). The main issues on the farmer draft Convention are relating to breaking away from Montreal Convention 1999, no limits on individual claims but a global limitation on air carrier liability, insurance coverage, cap of operators' strict liability, and Supplementary Compensation Mechanism. The core provisions of the latter draft Convention are as follows: the liability of the operator is strict, up to a certain threshold tentatively set at 250,000 to 500,000 SDRs. Beyond that, the operator is liable for all damages unless it proves that such damage were not due to its negligence or that the damages were solely due to the negligence of another person(Article 3). The provisions relating to the SCM and compensation thereunder do not operate under this Convention, as the operator is potentially for the full amount of damages caused. The main issues on the latter draft Convention are relating to liability limit of operator, and definition of general risks. In conclusion, we urge ICAO to move forward expeditiously on the draft Convention to establish a third party liability and compensation system that can stand ready to protect both third party victims and the aviation industry before another 9/11-scale event occurs.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.32
• /
• pp.93-111
• /
• 2006

The purpose of this paper is to analyze the composition of the arbitration costs in ICC Rule of Arbitration and to examine how each item of the costs is determined. Furthermore this author tired to find the principles or criteria deciding which of the party should bear them or in what proportion they shall be home by the parties in Article 31. Thus this author could find three common approaches. First, all of the costs are home by the losing party, or Second, all of the costs are allocated in proportion to the result of award in each case. Third, all of the costs determined by the Court as shared equally by the parties and both parties bear their own costs. But, both parties may include their intention in accordance with the principle of party autonomy. For example if the parties with to ensure that the arbitration costs be shared equally and that the arbitrator make no allocation of costs and fees, the following sentence could be added to the arbitration clause. "All costs and expenses of the arbitrators (and the arbitral institution) shall be home by the parties equally; each party shall bear the costs and expenses, including attorneys' fees, of its own counsel, experts, witnesses and preparation and presentation of its case."

• Journal of Arbitration Studies
• /
• v.8 no.1
• /
• pp.269-291
• /
• 1998

Change of circumstances subsequent to formation of international business contract raises two issues on both parties' obligation to perform business transaction concerned. One is impossibility of performance due to events beyond control of parties and the other is adaption of contract. In Anglo-American Law such an impossibility of performance is provided by the doctrine of Frustration and the doctrine of Practicability(UCC 2-615). In practice a "force majeure" clause should be included in contract defining the parties' mutual rights and duties if certain events beyond their control occur to safeguard themselves against possible impossibility. On the other hand the tendency of international trade is that alongside sales contracts, there are contract for supplies, for furnishing raw materials, for building industrial complexes, and transferring technology. One characteristic of these agreements is their duration. For in order to carry out these agreements, it is necessary to complete a series of closely interrelated operations which, in the normal course of events, take place over a number of years. It is often difficult for the parties, when finalizing their contract, to have a full grasp of all of the factors governing their relations. With a view to resolving difficulties such as compromise the continuous performance of a contract, parties may insert a regulatory clause in their contract providing for intervention by a third person after stating in specific and detailed fashion the circumstances in which their contract may be adapted.