• Title/Summary/Keyword: arbitration

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Review on the Adhesiveness of Consumer Arbitration Agreements: U.S. Laws (소비자 중재합의의 부합계약성에 관한 검토 - 미국법을 중심으로 -)

  • Ha, Choong-Lyong
    • Journal of Arbitration Studies
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    • v.22 no.3
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    • pp.47-69
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    • 2012
  • This paper investigates the U.S. courts'attitudes toward the legal doctrine of adhesion contracts, which have been employed as contract defenses by individual consumers who have entered into consumer arbitration agreements with businesses. Some requirements have been added to the sole adhesiveness of the arbitration clause that can invalidate the arbitration clause, including unconscionability and unreasonable harshness. It seems that the U.S. courts have moved toward a more tightened stance in evaluating the validity of consumer arbitration clauses, favoring consumer arbitration.

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Abuse of Process and Regulation in Commercial Arbitration - A Chinese Perspective

  • Dong, Arthur X.
    • Journal of Arbitration Studies
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    • v.25 no.3
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    • pp.91-111
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    • 2015
  • This paper discusses the problem of extraordinary delay in the commercial arbitration process, increased arbitration fees, and denial of the benefits of arbitration to other parties due to the abuse of procedural rights by relevant parties in commercial arbitration process. This paper proposes measures to reduce abuse of process in commercial arbitration, such as statutory modification, judicial supervision, amendment of arbitration rules and the intervention of disciplinary bodies.

The Comparative Study on Arbitration System of South Korea, North Korea, and China (남북한 및 중국 중재제도의 비교연구)

  • Shin, Koon-Jae;Lee, Joo-Won
    • Journal of Arbitration Studies
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    • v.17 no.2
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    • pp.101-124
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    • 2007
  • The legal systems and open-door policies to foreign affairs in North Korea have been followed by those of China. Whereas an arbitration system of South Korea accepted most parts of UNCITRAL Model Law, North Korea has succeeded to an arbitration system of a socialist country. China, under the arbitration system of socialist country, enacted an arbitration act reflected from UNCITRAL Model Law for keeping face with international trends. We have used these three arbitration system as a tool for analyzing an arbitration system in North Korea. With an open-door policy, North Korea and China enacted an arbitration act to provide a legal security. Therefore, the core parts of arbitration system in North Korea and China are based on a socialist system while those of South Korea is on liberalism. So, North Korea and China enacted an arbitration act on the basis of institutional arbitration, on the other side, South Korea is based on ad-hoc arbitration. Because of these characters, in terms of party autonomy, it is recognized with the order as South Korea, China and North Korea. Also North Korea enacted separate 'Foreign Economic Arbitration Act' to resolve disputes arising out of foreign economies including commercial things and investments. There are differences in arbitration procedures and appointment of arbitrators : South Korea recognizes parties' autonomy, however parties should follow the arbitration rules of arbitration institutes in North Korea and China. According to an appointment of arbitrators, if parties fail to appoint co-arbitrators or chief arbitrators by a mutual agreement, the court has the right to appoint them. In case of following KCAB's rules, KCAB secretariats take a scoring system by providing a list of candidates. A party has to appoint arbitrators out of the lists provided by arbitration board(or committee) in North Korea. If a party may fail to appoint a chief arbitrator, President of International Trade Arbitration Board(or Committee) may appoint it. In China, if parties fail to appoint a co-arbitrator or a chief arbitrator by a mutual agreement, Secretary general will decide it. If a arbitral tribunal fails to give a final award by a majority decision, a chief arbitrator has the right for a final decision making. These arbitration systems in North Korea and China are one of concerns that our companies take into account in conducting arbitration procedures inside China. It is only possible for a party to enforce a final arbitral award when he applies an arbitration inside North Korea according to International Trade Arbitration Act because North Korea has not joined the New York Convention. It's doubtful that a party might be treated very fairly in arbitration procedures in North Korea because International Trade Promotion Commission controls(or exercises its rights against) International Trade Arbitration Commission(or Board).

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A Study on the Need for Arbitration and Agreement in Sports Disputes (스포츠중재의 필요성과 중재합의에 관한 고찰)

  • Jeon, Hong-Gu
    • Journal of Arbitration Studies
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    • v.26 no.1
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    • pp.3-27
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    • 2016
  • There is a need for disputes in sports to be settled by arbitration rather than a court ruling, taking the unique characteristics of sports into consideration. Arbitration is a form of alternative dispute resolution (ADR). A dispute resolution system is regarded as: an arbitrator is selected by the agreement between the parties, and a binding decision is made, which the parties obey, consequently resulting in a final resolution. To resolve a dispute upon arbitration, there must be an arbitration agreement upon the free will of the parties. In relation to the arbitration agreement, however, there are some cases in which sports organizations have an arbitration clause in the articles of association, regulations or player registration application that call for settling disputes by arbitration. In such cases, the validity of the arbitration agreement may create doubt whether or not this sort of arbitration has been made by mutual agreement. Consequently this is required to be legally examined. The activities of a sports organization are recognized as part of private autonomy, and they include even the rights that establish regulations or rules. Nonetheless, the powers that such sport organizations are able to establish are not allowed without limit. However, sports activities and autonomy shall be protected as themselves. Therefore, if we give priority to arbitration upon the independent arbitrator and fair process by establishing an independent arbitral organization in charge of sports disputes to handle the effective resolution of disputes and protect sports autonomy and ask for a court decision if one party disobeys the arbitration, or the sports arbitration prepositive principle, it seems helpful to resolve the unfairness of compulsory jurisdiction and the clause for sports arbitration and protect the player's right of choice and of claims for trial.

A Study on Cooperation Ways of South-North Korea for Revitalization of Inter-Korean Commercial Arbitration System - Centering around Evaluation of the Foreign Economic Arbitration Act(2008) of North Korea - (남북상사중재 제도 활성화를 위한 남북협력방안 -북한의 대외경제중재법(1980) 평가를 중심으로-)

  • Kim, Kwang-Soo
    • Journal of Arbitration Studies
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    • v.21 no.1
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    • pp.259-277
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    • 2011
  • In 2008, North Korea revised its Foreign Economic Arbitration Act. To some extent, the new Act reflected such international standard of arbitration as UNCITRAL Arbitration Rules. In this paper, the said Act will be evaluated, and then cooperation ways of South-North Korea on Inter-Korean Commercial Arbitration will be suggested. In 2007, the Ministry of Unification has designated the Korean Commercial Arbitration Board as Inter-Korean Arbitration Committee and has made efforts to prepare follow-up measures on the two Agreements of Inter-Korean Commercial Arbitration. In 2008 however, the follow-up measures has in fact been suspended. In order to revitalize the Inter-Korean commercial arbitration, some prerequisites must be satisfied. First, Inter-Korean Arbitration Committee for Inter-Korean commercial arbitration should re-open as soon as possible. Second, as North Korea recently shows interest in joining the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards(now so called New York Convention), Governmental Authority of Rep. of Korea should also actively assist and support their joining in New York Convention. Third, both Korean governments should carry out joint study on raising the efficiency of the arbitration system which they will use. Fourth, comparative study on arbitration systems used in both countries should be conducted. Also, it may is very timely to discuss the issue in international arbitration community such as "North-East Asia International Arbitration Conference" or other similar events. In conclusion, continuous study on prevention of commercial disputes between South-North Korea and ways to resolve disputes when they arise should be conducted.

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A Study on the Characteristic of Chinese Arbitration System (중국 중재제도의 특징에 관한 소고)

  • Lee Joo-Won
    • Journal of Arbitration Studies
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    • v.15 no.3
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    • pp.113-137
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    • 2005
  • In the provisions of 'the Arbitration Law of China, there are special provisions for international arbitration. When a court refuses the recognition and enforcement of foreign arbitral awards or cancel the domestic awards relating to international arbitration, they have to adopt the provisions of 'Chinese Civil Procedure Law'. These provisions are the same as the provisions of Korean Civil Procedure Law concerning the reasons of renewal. In the Korean Arbitration Act, those provisions disappeared when it was revised on December 31, 1999. Among the characteristics of the Chinese arbitration system, a serious question is that it provides only institutional arbitration and there is no ad-hoc arbitration in the Chinese Arbitration Law. On the other hand, when the parties appoint three arbitrators according to their agreement, the parties appoint the third arbitrator by mutual agreement and when they fail to agree, the Arbitration Committee appoints the third arbitrator. In practice, as the parties hardly agree on the third arbitrator or sole arbitrator, the Committee usually appoints them. And appointing an arbitrator from out of their panel of arbitrators is permitted these days only under examination by the Arbitration Committee in accordance with the arbitration rules of the China International Economic and Trade Arbitration Commission, Other arbitration committees except the China International Economic and Trade Arbitration Commission are still prohibited from making appointments from out of their panel of arbitrators. Accordingly, arbitration in China cannot be predicted and poses a question about legal stability as party autonomy is restricted in the appointment of arbitrators and arbitral procedure. Such being the case it is strongly recommended to select Korea as the place of arbitration in transactions with China. However it is better to arbitrate than to file a law suit in China.

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A Study on the Role of Party Autonomy in Commercial Arbitration (상사중재에 있어서 당사자자치의 역할)

  • Lee, Kang-Bin
    • Journal of Arbitration Studies
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    • v.19 no.2
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    • pp.3-26
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    • 2009
  • This paper is to research on the role of party autonomy in the decision of applicable law for the arbitral proceeding, arbitral award and arbitration agreement, in the decision of the place of arbitration, in the composition of arbitration tribunal, and the choice of arbitral proceedings. The principle of party autonomy is fundamental to arbitration in general and to international arbitration in particular. Generally the tenn of party autonomy is used as the autonomy of the parties to decide all aspects of an arbitration procedure subject only to certain limitations of mandatory law. Party autonomy permits the parties to a commercial arbitration to choose the laws and make the rules which govern the arbitral proceedings. Party autonomy allows the parties freedom to choose the applicable laws for the arbitral proceeding and the place of arbitration. Party autonomy is recognized in relation to the choice of law for the merits of the dispute as well as for the arbitration agreement and the arbitration procedure. On the basis of the recognition of party autonomy in international treaties, national legislation and court decisions, arbitral practice has generally accepted and enforced party autonomy both regarding the procedure and the applicable substantive law. All modern institutional rules of arbitration follow that line. Today it is recognized by national legislators all over the world to the effect that the jurisdiction of national courts can be excluded by arbitration agreement and that the parties may choose the law applicable to arbitral proceedings. Limits on party autonomy are imposed by mandatory provisions of international or national law or of institutional arbitration rules regarding the procedure. Mandatory laws at the place of the arbitration or under any procedural law chosen by the parties may restrict party autonomy. These mandatory laws usually take the form of public policy considerations in the arbitration. Limitations on party autonomy have been reduced more and more, and the trend of modern national as well as international legislation on arbitration leans clearly in the direction of a maximum of party autonomy.

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A Study on the Scope of Effect in Arbitration Agreements (중재합의의 효력범위에 관한 고찰 - 대법원 2011.12.22. 선고 2010다76573 판결을 중심으로 -)

  • Kim, Yong-Kil
    • Journal of Arbitration Studies
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    • v.23 no.2
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    • pp.1-35
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    • 2013
  • In the 21th century, its important role in international commercial disputes has established arbitration as the preferred form of dispute resolution. Because commercial disputes have become more complicated and varied with their quantitative increase, it is important that they be settled in a reasonable and rapid manner. Alternative Dispute Resolution (ADR) is now regarded as one of the most effective dispute resolution methods for the settling of commercial disputes and merits notice. Arbitration is a form of dispute resolution in which two parties agree to have their dispute resolved by one or more arbitrators and thereby avoid what could be costly and time-consuming court battles. Often contracts mandate that disputes be settled through arbitration. These arbitration clauses also frequently prohibit plaintiffs from banding together to bring an action on behalf of a larger class. An arbitration agreement is an agreement by parties to summit to arbitration all or certain disputes which have arisen or which may arise between them with respect to their defined legal relationship, whether contractual or not. According to the Supreme Court, general elective arbitration clauses may be considered valid in light of all the relevant facts. Arbitration has been the subject of a great deal of research and the scope of effect in arbitration agreements is a promising avenue for future research.

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A U.S. Courts Case Study on Arbitration Clause and Class Arbitration Among Consumers (소비자중재조항과 집단중재(Class Arbitration)에 관한 미국법원의 판결동향)

  • Han, Na-Hee;Ha, Choong-Lyong;Kang, Ye-Rim
    • 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.

A Study on Legal Property and Effect of Arbitration Agreement (중재계약의 성질과 효력에 관한 연구)

  • 김명엽
    • 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.

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