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A Study on the Chinese Arbitration Act (중국 중재법에 관한 연구)

  • Yoon, Jin Ki
    • Journal of Arbitration Studies
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    • v.9 no.1
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    • pp.183-232
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    • 1999
  • The legislative body of The People's Republic of China, the National People's Congress, enacted the first arbitration act in China's history on August 31st, 1994, which took effect on September 1, 1995. The problems revealed through a comparison of China's Arbitration Act with the UNCITRAL model arbitration law were studied as well as the enacting process, background, status and system, important contents, problems of Chaina's Arbitration Act, and the differences between the old arbitration regulations and the new arbitration act. These are all discussed in this paper. The Arbitration Act is the basic act ruling over china's arbitration system: it unified the previously confusing laws and regulations relevant to the arbitration system, and the act brings out fundamental changes in China's domestic arbitration to the level of international arbitration standards. It is possible to view this act as a cornerstone in China's arbitration system. But, as discussed in this paper, there are still a lot of problems with the new act and only a few of the merits which the UNCITRAL model arbitration law has. First, under China's Arbitration Act, parties enjoy autonomy to some degree, but the range of party autonomy, compared to that of the UNCITRAL model arbitration law, is too narrow. Second, because China's Arbitration Act didn't explicitly provide issues which can give rise to debate, a degree of confusion in its interpretation still remains. Third, China's Arbitration Act's treatment of some important principles was careless. Fourth, in some sections, China's Arbitration Act is less reasonable than the UNCITRAL model arbitration law. These problems must be resolved in order to develop China's arbitration system. The best way of resolving these problems for China is to adopt the UNCITRAL model arbitration law. But it is difficult to expect that China will accept this approach, because of the present arbitration circumstances in China. Although it is difficult to accept all the contents of the UNCITRAL model arbitration law, China's legislators and practitioners must consider the problems mentioned in this paper.

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한국상사중재의 국제화와 경쟁력

  • Jo, Jeong-Gon
    • Journal of Arbitration Studies
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    • v.7 no.1
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    • pp.411-446
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    • 1997
  • This paper reports the results of an experimental companson of the winning rates in arbitral awards between the Korean Commercial Arbitration Board and the Japan Commercial Arbitration Association, and analyzed the comparative advantages of KCAB in international arbitration compared with ICC. There are so many factors to analyze the level of internationalizaton and competitiveness in the arbitration. From the recent lituratures, arbitration experts reported and debated tremendous elements which is vital to have a competition in the international arbitration market. Arbitration factors such as fairness, reliability, awareness, extension, enforcement, inexpensiveness, closed and expedited proceedings, arbitrators, expert knowledge, service, arbitral award, etc. are very important to appraise the level of the globalization and competitiveness of arbitration organizations Using these factors, I appraised current level of the globalization and competitiveness of the Korean Commercial Arbitration Board, unique arbitration organization in South Korea. Next, we are able to compare the level of fairness using the concept of 'winning rate' All over the world, only several arbitration organizations published and opened their own arbitral awards even In anonymity. The Japanese arbitration institutions published it regularly as well as the Korean When compared with these two institutions' "winning rates". there is similiar tendency in favor of domestic corporations That is to say, the winning rates in domestic arbitration cases are greater than those in international arbitration cases. This embarks an implication of unequality, a part of unfairness, in these two countries' arbitration. Finally, an analysis was conducted between the statistics of KCAB and ICC, especially to the focus on the number of arbitration cases, arbitration tribunals, arbitration places, parties' nationalities. the types of contents, the amount of arbitration, arbitration costs. There are two meanings to keep in mind for advancement of Korean arbitration. One is to establish new strategy specializing in small amount arbitration less than US$200,000. The other is to rearrange the panel of arbitration, especially in increasing field of arbitration cases such as the disputes of license, technology transfer, patent, etc.

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A Comparative Study Arbitral A ward under the Arbitral Laws between Korea and Japan (한.일 중재법상 중재판정의 비교법적 고찰)

  • Choi, Seok-Beom;Jung, Jae-Woo;Kim, Tae-Hwan
    • Journal of Arbitration Studies
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    • v.16 no.1
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    • pp.81-119
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    • 2006
  • The parties in the trade can have full autonomy and can resolve disputes independently, impartially and without delay by selecting arbitration by agreement. Korea and Japan had revised their Arbitration Laws to incorporate as many provisions of the 1985 UNCITRAL Model Law as possible. Japan had amended its century-old arbitration law, becoming the 45th country to adopt the UNCITRAL Model Law on International commercial arbitration. New Arbitration Law was enacted as Law No.138 of 2003 and effective on March 1, 2004, is applicable to both national and international arbitration. Korea had amended its arbitration law on December 31, 1999 and its New Arbitration Law incorporates the most of the 1985 UNCITRAL Model Law as Japan. Arbitration must be popular in resolving international commercial disputes in Northeast Asian bloc in order to increase the volume of intra-trade in the Northeast Asian bloc. But in order for the parties to make use of arbitration in the bloc, the arbitration laws of nations in the bloc must have similarity and unification. As Korea and Japan playes important roles in the bloc, both nations's arbitration laws must be studied in view of similarity and difference to unify both nations' arbitration laws by way of showing an example. Therefore, this paper deals with both nations' arbitration laws in view of comparative law to unify their arbitration laws and Northeast Asian Nations' arbitration laws.

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A Study on the Recent Amendment to the Arbitration Rules of the Korean Commercial Arbitration Board (대한상사중재원(KCAB) 중재규칙의 최근 개정내용에 관한 고찰)

  • Kim, Tae-Hoon;Cha, Kyung-Ja
    • Journal of Arbitration Studies
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    • v.22 no.1
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    • pp.3-22
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    • 2012
  • The Korean Commercial Arbitration Board ("KCAB") recently amended its 'International Arbitration Rules' and the 'Arbitration Rules', which became effective on September 1, 2011. Under the amendment, the 'Arbitration Rules' will be referred to as the 'Domestic Arbitration Rules' and in principle apply only to domestic arbitration cases. Accordingly, the amendment removed all of the provisions relating to international arbitration cases. In addition, under the amendment, the 'International Arbitration Rules' will automatically apply to all international arbitration cases unless the parties agree otherwise. The amended 'International Arbitration Rules' establish new expedited procedures for the international arbitration cases before the KCAB. The KCAB has also instituted additional changes related to international arbitration cases including reduction in the filing and administrative fees and appointment of prominent international foreign arbitrators on its panel. The remuneration for arbitrators has also increased to bring them more in line with the fees provided by other leading international arbitration institutions. While several problems remain, these most recent revisions must be seen as a step in the right direction for the KCAB.

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A Comparative Study on the Institutional Arbitration and Ad Hoc Arbitration (기관중재와 임시중재에 관한 비교연구)

  • Oh, Won-Suk;Kim, Yong-Il
    • 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.

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A Study on the Fixing the Place of Arbitration in Arbitration Agreement (중재합의시 중재지 결정에 관한 연구)

  • Oh, Won-Suk;Seo, Kyung
    • International Commerce and Information Review
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    • v.12 no.4
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    • pp.429-453
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    • 2010
  • The purpose of this paper is to examine the significances of choosing the place of arbitration, the principles of fixing the place, which the major international arbitration institutions(including the ICC, LCIA, AAA, CIETAC and so on) have in their arbitration rules, and the methods of drafting the place of arbitration in arbitration agreements. When the contract parties have agreed on the place of the arbitration, the institutions have no role regarding the selection of the place of arbitration. But the parties have not agreed on the place of arbitration, it is fixed by the rules of selected institution, by considering the lists of criteria including local laws, N.Y. Convention, neutrality, convenience and so on. This author suggested four alternatives on how to designate the place of arbitration, and advantages and disadvantages of each one: the place of claimant, the place of respondent, the place agreed on in advance in Bilateral Agreement between two Arbitration Institutions established in two countries or the third country. In conclusion, the decision of all elements in the international contract is greatly influenced by the power of negotiation, and the place of arbitration in arbitration agreement has a lot of influential significances on both parties when resolving the disputes. So it is advisable for the parties to fix the place according to the global standard(the place of respondent), the arbitration rules of major international arbitration institutes and the result of the negotiation between parties.

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A Comparative Analysis of Costs in Arbitration between Korea and ICC (한국과 ICC 간 중재비용에 관한 비교 분석)

  • Ha, Choong Lyong
    • Journal of Arbitration Studies
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    • v.10 no.1
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    • pp.26-46
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    • 2000
  • International arbitration has been recognized as an effective dispute resolution method. Among the arbitration institutions, the ICC(International Chamber of Commerce) international court of arbitration is one of the most well-known and frequently chosen organizations to which international claimants have resorted, when they were confronted with international disputes. In this paper, costs in the ICC arbitration are compared with those in the KCAB(Korean Commercial Arbitration Board) arbitration. seeking efficient ways to reduce the costs while maximizing the quality of arbitral awards. Three main points about costs in the ICC arbitration and the KCAB arbitration are discussed and analysed, First, the cost structures are analysed and decomposed into manageable units. Second, the cost allocation is discussed to clarify its proportional responsibility among the arbitration parties. Third, how advances in arbitration costs are conducted is examined to explore a well established procedure of arbitration. In conclusion, the KCAB arbitration procedure has been found faster and cheaper than the ICC arbitration procedure in terms of time and costs, respectively. However, it can be cautiously suggested that the quality of arbitral awards made by the KCAB is not necessarily higher than that made by the ICC.

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A Study on The Legal Effect of Arbitration Agreement (중재계약의 법적 효력에 관한 연구)

  • Park, Jong-Sam
    • Journal of Arbitration Studies
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    • v.19 no.3
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    • pp.25-42
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    • 2009
  • That occur in international trade disputes between the parties without resorting to a court trial on the basis of principle of government by the parties to resolve the dispute resolution in general (Alternative Disputes Resolution: ADR) agreed to, reconciliation, coordination, mediation and other methods are. Here, unlike arbitration and other dispute resolution arbitrator, the court confirmed the arbitration award came from the judge and the same shall become effective in doing international commerce dispute resolution methods are widely used. Arbitration Agreement is a contractual dispute, regardless of whether a certain law there arise about the relationship between the parties, Currently exists, future conflicts can arise in whole or in part by the arbitration agreement is to be resolved. Arbitration agreement include: the effects of out of contract arbitration proceedings, the court does not want the progress of the dispute referred to arbitration proceedings to the effect, and the presence of the parties to the arbitration agreement does not claim to knowing the defense plea that Appeals ticket of destruction that have the effect of demurrer, that the arbitration agreement are rebuttal to the rebuttal of prozesshindernde Einrede and the mediation of a plea on the merits when the first defense must be submitted to the arbitration proceedings in which the applicant until the arbitration award determined that the property dispute to court for water conservation measures to dispose of the watch was in effect for arbitration in the contract. In addition, the arbitration agreement and the court sentenced the same kinds of effects that resolved the final effect, especially at the same time the effect of foreign recognition and enforcement of the decision regarding the New York Convention arbitration award based on the recognition and enforcement of domestic and international effects are being recognized. Consequently, the arbitration agreement to take effect a valid arbitration agreement exists is determined by whether or not staying. Therefore, agreements between individual university entrance exams based on the company signed a contract regarding the effect of arbitration first, associated with individual university entrance exams, and the leading research and analysis, review, and examine the general concept of the arbitration agreement after the arbitration agreement between the parties focuses on information about the effects of study to contribute to the activation of the arbitration system is aimed at the individual university entrance exams.

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A Study on the International Arbitration System of Singapore (싱가포르 국제중재제도에 관한 연구)

  • Kim, Sang-Chan;Kim, Yu-Jung
    • Journal of Arbitration Studies
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    • v.24 no.2
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    • pp.137-160
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    • 2014
  • These days, in line with the increase of opportunities in our country's firms to do transaction, large-scale M&A and investment with foreign firms incorporating arbitration clauses in the contracts have become general practice. Recently, Singapore has come to the fore as a place of arbitration and, particularly, Singapore International Arbitration Center (SIAC) was assessed as the favored international arbitration institution uniquely in Asia at the 2010 International Arbitration Survey: Choices in International Arbitration, along with the ICC, LCIA, and AAA/ICDR. Therefore, the country's firms need to understand properly the international arbitration procedure of Singapore. This study examines the international arbitration system of Singapore, focusing on the arbitration procedure of the SIAC. The Center revised arbitration rules twice in 2010 and 2013, and established the Court of Arbitration of SIAC in April 2013 for the first time in Asia in pursuit of stricter neutrality and promptness. It further seeks to run the arbitration procedure fairly by selecting a third country's people as an arbitrator, while its arbitration expenses are cheaper than those of the ICC. The study believes that for the country's international arbitration institutions such as the KCAB to jump forward as a world-class international arbitration institution, the Korean government should render positive support to them, learning from Singapore which does not spare any political and financial assistance to cultivate international arbitration institutions. On the other hand, KCAB should also try hard to improve in the aspects of neutrality, fairness, and promptness and to be selected as a trustworthy international arbitration institution by firms in Asian countries.

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Problems and Fundamental Principles in Drafting of Arbitration Rule of the Commercial Arbitration Committee of South-North Korea. (남북상사중재위원회 중재규정초안작성상의 문제성과 기본원칙)

  • Choi Jang-Ho
    • Journal of Arbitration Studies
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    • v.14 no.2
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    • pp.47-72
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    • 2004
  • The Drafting of Arbitration Rule of the Commercial Arbitration Committee of the South-North Korea is to be the basis of and important to the South-North Commercial Arbitration Committee. Therefore we should study and review carefully the drafting of Commercial Arbitration Rule of the Commercial Arbitration Committee of the South-North Korea. First of all, it's probable that the drafting of Commercial Arbitration Rule of the Commercial Arbitration Committee in South Korea should be written by the Commercial Arbitration Committee of South Korea and Korean arbitral body after these organizations are established and appointed. Second, it's probable that the Commercial Arbitration Committee of South Korea and the arbitral body in South Korea should be composed of private sector, not government officer mainly. Third, it's not recommendable that we make the ICSID intervene in appointment of arbitrator(s) of the Commercial Arbitration Committee of the South-North Korea when it's not agreed with between the South Korea and the North Korea. Forth, it's not recommendable that we, the South Korea write the only one South Korean draft of the Arbitration Rule of the Commercial Arbitration Committee of the South-North Korea.

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