• Journal of Arbitration Studies
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• v.28 no.4
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• pp.111-129
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• 2018

The foundation of arbitration is the arbitration agreement between parties. If no agreement to arbitrate exists, the parties should not send to arbitrate their disputes. In the United States, there are no provisions as to arbitrability under the Federal Arbitration Act. Before a court can enforce arbitration, it must first determine arbitrability. The general presumption is that the issue of arbitrability should be resolved by the courts. The question of whether parties have submitted a particular dispute to arbitration raises a question of arbitrability which is an issue for judicial determination unless the parties clearly and unmistakably have provided otherwise. Determining if the parties agreed to arbitrate a dispute involves inquiries into whether there is a valid agreement to arbitrate the claims, and the dispute falls within the scope of the arbitration agreement. Therefore, the purpose of this article is to review how to settle the issue of arbitrability in the U.S. federal courts.

• Journal of Arbitration Studies
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• v.27 no.3
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• pp.53-76
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• 2017

Korean businesses, and their legal representatives, have observed the improvements of enforcement of commercial judgments through arbitration over traditional collections litigation in U.S. Courts-due to quicker proceedings, exceptional cost savings and more predictable outcomes-in attaching assets within U.S. jurisdictions. But how are the 2016 interim measures implemented by the Arbitration Act of Korea utilized to avoid jurisdictional and procedure pitfalls of enforcement proceedings in the Federal Courts of the United States? Authors examine the necessary prerequisites of the U.S. Federal Arbitration Act as adopted through the New York Convention, to which Korea and the U.S. are signatories, as distinguished from the Panama Convention. Five common U.S. arbitration institutions address U.S. "domestic" disputes, preempting U.S. state law arbitrations, while this article focuses on U.S. enforcement of "international" arbitration awards. Seeking U.S. recognition and enforcement of Korean arbitral awards necessitates avoiding common defenses involving due process, public policy or documentary formality challenges. Provisional and conservatory injunctive relief measures are explored. A variety of U.S. cases involving Korean litigants are examined to illustrate the legal challenges involving non?domestic arbitral awards, foreign arbitral awards and injunctive relief. Suggestions aimed toward further research are focused on typical Korean business needs such as motions to confirm foreign arbitration awards, enforce such awards or motions to compel arbitration.

• 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.28 no.1
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• pp.99-123
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• 2018

Korean businesses engaging in transactions with U.S. entities are increasingly favoring arbitration clauses to address unexpected disputes. How best ought the parties' arbitration contractual terms be drafted to avoid lengthy, protracted and expensive legal disputes? Authors examine the public policy favoring arbitration through the U.S. Federal Arbitration Act. Korean litigants seeking a "Motion to Compel Arbitration" rely on arbitration clauses designed to address four factors U.S. courts use to evaluate the enforceability of arbitration contract clauses. What role does U.S. state court jurisdiction hinder or help Korean businesses contracting with U.S. business entities located within certain boundaries? What is the effect of an arbitration clause that designates the Korean Commercial Arbitration Board in Seoul to arbitrate? All cases analyzed entail Korean business entities. Eleven cases demonstrate the results of seeking motions to compel arbitration in U.S. courts. Three cases illustrate motions to compel arbitration drafted to use the Korean Commercial Arbitration Board in Seoul. The results provide Korean businesses and legal practitioners insight into addressing the specific goals of including contractual arbitration clauses to enhance their international commercial interests in the United States.

• Journal of Arbitration Studies
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• v.22 no.2
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• pp.125-157
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• 2012

This study is to vindicate the vacation of arbitral awards in the United States. It focuses on the harmony of case law with statutory law of the United States. Until the early twentieth century, the American legal system, having adopted the English common law view, harbored a hostile attitude toward arbitration. The purpose of the Federal Arbitration Act (FAA) of the United States, enacted in 1925, was to eliminate the hostile attitude of courts toward arbitration. Congress is to enforce arbitration agreements into which parties have entered and to place arbitration agreements upon the same footing as other contracts. The structure of grounds for vacating arbitration awards has two layers. One is of vacating grounds with statutory origins, such as the FAA and the Uniform Arbitration Act, and the other, of vacating grounds originating from a nonstatutory, case law background. For a while, vacatur based on case law has coexisted with vacatur on statutory grounds for arbitration awards. After the Supreme Court decision in Hall Street Associates, L.L.C. v. Mattel, Inc., however, the justification of vacating based on case law has weakened. Post-Hall Street decisions of circuit courts show ways to deal with manifest disregard of the law. One of them is the harmonization of the case law grounds for vacating with the statutory grounds. It seems that the manifest-disregard-of-law and public-policy exceptions show a possibility of survival after Hall Street. However, other nonstatutory grounds for vacation of arbitration awards have no firm basis after Hall Street.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.19-36
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• 2017

This paper reviews and analyzes the U.S. cases and statutes on the writing requirements of arbitration agreement. In order to discuss the legal aspects of writing requirement on arbitration agreement in the U.S., it is necessary to delve into both the contractual aspects of arbitration agreement and statutory specifications of the writing requirements of arbitration agreement. Statute of frauds and parole evidence rule were reviewed and employed to find legal implications on the writing requirement of arbitration agreement. Relevant cases were analyzed to verify how the courts have been responded to the conflicts regarding the validity of the arbitration contract with respect to writing requirement. International treaties absorbed into the U.S legal system were also reviewed and commented to analyze their implications on the writing requirement of arbitration agreement, including the UNCITRAL Model Arbitration Law and the New York Convention.

• Journal of Arbitration Studies
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• v.12 no.2
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• pp.93-114
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• 2003

The Federal Arbitration Act and the States Arbitration acts of the United States approve that the an arbitration clause should be construed broadly and the Courts interpreted it broadly without being curbed by the written meaning of clause itself. The Courts also divided the interpretation of arbitration clause from the interpretation of other clauses of contract to approve the validity of arbitration clause and further expanded the scope of arbitration. However, the Arbitration Act of Korea does not specify a general principle about how an arbitration clause should be interpreted. The Supreme Court did not have a case yet but the lower courts kept their posture that an arbitration clause should be clear by resulting narrow interpretation and should be written to the extent that it excludes the power of courts from jurisdiction. As a result, there would be cases that arbitration is not permitted although an arbitration clause exists. The parties intending arbitration are frustrated about how to draft an arbitration clause into their agreement. There were the cases that the parties which took the prevailing position attempted to delay dispute resolutions by dragging disputes into litigation even if they agreed to resolve through arbitration, on the basis that an arbitration clause was incomplete. Although the arbitration statutes of the United States cannot apply in Korea, the way of their approaches to the interpretation of arbitration clause can be taken into consideration in view of the globalization of arbitration.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.77
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• pp.69-89
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• 2018

The United States of America is one of the most favoring countries in which mandatory pre-arbitration clauses in the form of adhesion contract have been widely recognized and supported by courts and the Federal Arbitration Act. However, after the financial crisis in 2008 and the National Arbitration Forum scandal in 2009, in enacting the Dodd-Frank Wall Street Reform and Consumer Protection Act ('Dodd-Frank Act'), Section 1028(a) of the Act requires the newly created Consumer Financial Protection Bureau (CFPB) to provide Congress with a report on "the use of agreements providing for arbitration of any future dispute between covered persons and consumers". Section 1028(b) also grants the CFPB the authority to "prohibit or impose conditions or limitations on the use of an agreement between a covered person and a consumer for a consumer financial product or service providing for arbitration of any future dispute between the parties, if the Bureau finds that such a prohibition or imposition of conditions or limitations is in the public interest and for the protection of consumers." Pursuant to the Dodd-Frank Act, the CFPB issued a report entitled "2015 Arbitration Study: Report to Congress 2015 (Report)" in March 2015. This paper examines some major legal issues of the Report and makes a few recommendations for Korean financial institutions which entered into the U.S. financial market or has a plan to do so in the near future.

• Journal of Arbitration Studies
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• v.29 no.2
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• pp.89-105
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• 2019

This paper reviews and analyzes the U.S. cases and statutes on the issue of party autonomy in arbitration agreement. Arbitration agreement has been interpreted somewhat differently from general contracts because its legal characteristics are not purely contractual by nature. For example, some legal scholars insist that an arbitration contract is more about an agreement on a process of dispute resolution than a creation of rights and obligations to avoid litigation. Party autonomy was discussed in diverse legal perspectives including contract of adhesion, VKI principle, and separability of arbitration clause. These three legal perspectives are discussed to set the legal relationship between party autonomy and protection of consumers in consumer arbitration. In addition, it was discussed how legal defects in the formation of an arbitration contract can influence the party autonomy. The legal defects that were discussed to analyze the relationship between arbitration agreement and party autonomy included misrepresentation, fraud, mistake, duress, and undue influence.

• Journal of Arbitration Studies
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• v.26 no.3
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• pp.121-147
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• 2016

Factual issues in most patent litigation are related to very complicated techniques. Thus, the courts has emphasised that the technology in dispute has to be read and understood through the eyes of a person to whom it is directed. Therefore, among the various processes in federal litigation, most litigation in the field of patent infringement relies on at least some expert evidence. This paper focuses on issues regarding patent dispute evidence, and explore whether there are unresolved issues in evidential rules and procedures of patent proceedings. Further, this paper seeks to demonstrate that both the parties and the courts in patent disputes generally benefit from the current evidence system. However, in a number of Australian cases, the scope of expert evidence in patent cases has been strictly limited. Australian Government identified uncertain issues associated with the present patent enforcement system, due to factors such as a low level of knowledge about what patent rights entail, the high degree of uncertainty of outcome in legal proceedings, etc. Arbitration shall be reviewed and suggested as an alternative to tackling the ongoing problems in the trial system.