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Статті в журналах з теми "Korean arbitration law"
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Kyung Kim, Min. "Damages for Breach of an Arbitration Agreement: A Korean Law Perspective." Asian International Arbitration Journal 18, Issue 1 (May 1, 2022): 1–20. http://dx.doi.org/10.54648/aiaj2022001.
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With the continued growth of international and cross border trade, there has also been an exponential growth in the use of international arbitration as a dispute resolution mechanism. However, there are unfortunately still many instances in which a party breaches an arbitration agreement and brings a claim in another forum and jurisdiction causing a significant time and cost burden to the other party. One of the possible deterrents of such behaviour is the ability in some jurisdictions to bring a damages claim against the party that breaches the arbitration agreement. Civil and common law jurisdictions have sometimes had different approaches to whether such a claim was possible. Korean law has very limited jurisprudence in relation to this issue despite Korean companies being one of the leading users of international arbitration and Korean law frequently applied in arbitrations. This article assesses how Korean law should deal with a damages claim for breach of an arbitration agreement by examining other civil and common law jurisdictions, namely Germany and England, as well as Korean law on damages. The article concludes that a claim for damages for a breach of an arbitration agreement is possible and the traditional Korean view that arbitration agreements are of purely procedural in nature and have no substantive rights and obligations arise from them does not fit with the realities of international commercial transactions and the parties’ intentions. international commercial arbitration, breach of arbitration agreement, damages claim, Korean law, civil law jurisdiction
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Do, Son Pan, and Tran Minh Quy. "Analysis of the Recent Commercial Arbitration Development Plan of the Korean Government – Some Suggestions for Vietnam’s Arbitration Law and Policy." Vietnamese Journal of Legal Sciences 4, no. 1 (June 1, 2021): 65–87. http://dx.doi.org/10.2478/vjls-2021-0009.
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Abstract The settlement of commercial disputes by commercial arbitration is gradually becoming popular in the business community. In the course of economic integration, Vietnam has acknowledged the role of arbitration and attempted to develop its arbitration legal framework in compliance with international practices. However, Vietnam’s arbitration system still faces various issues and thus, has required further reform. There are often cancellations of the referee’s decision, the procedure to cancel the award often lacks clarity, and the venue for the arbitration center’s dispute to be resolved is limited. In addition, the management, quality assessment and training of arbitrators is one of Vietnam’s problems. In Asia, Korea is known as one of the most pro-arbitration jurisdictions in the region. Since the adoption of the Arbitration Act in 1966 that governs both domestic and international proceedings, the Korean arbitration legal framework has always been kept consistent with generally accepted international practices. Recently, the Korean government has introduced an action plan to further promote the robust development of the commercial arbitration industry over the five-year period, from 2019 to 2023, and the goal is to turn Korea into one of five countries that have the world’s best arbitration system. Given the close cultural background and integration strategy of Vietnam and Korea, it is believed that the Korean experience can serve as a good reference for Vietnam in developing commercial arbitration law and policy. This paper begins with analyzing the background of the Vietnamese arbitration system and highlighting some limitations of Vietnamese arbitration. It then switches to the Korean arbitration system and development plan on promotion of dispute settlement by arbitration. The paper focuses on analyzing four main strategies that would: (1) strengthen the foundation of the arbitration industry; (2) activate domestic arbitration; (3) secure competitiveness in the arbitration industry; (4) expand the attraction of international arbitration. The Korean action plan can suggest some interesting strategies for Vietnam to further strengthen its commercial arbitration system.
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Zhu, Weidong. "The Recognition and Enforcement of the Foreign Arbitral Awards with No Foreign Element in China." Journal of International Arbitration 32, Issue 3 (May 1, 2015): 351–59. http://dx.doi.org/10.54648/joia2015014.
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It is a hot topic in China in recent years among arbitration scholars and practitioners whether Chinese parties may submit their disputes with no foreign element to a foreign arbitral institution. The ruling made by the No. 2 Intermediate People's Court of Beijing on 20 January 2014 refusing the recognition and enforcement of an arbitration award made by the Korean Commercial Arbitration Board raised public concern over the issue again. This is the first arbitration award made by the Korean Commercial Arbitration Board denied recognition and enforcement in China and also the first foreign arbitration award denied recognition and enforcement in China on the basis of the fact that the Chinese parties submitted their dispute with no foreign element to a foreign arbitral institution, which will have significant implications for arbitration development in China.
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MacArthur, David, and John Bang. "Korean Arbitration Act Amended to Adopt Key Features of 2006 Model Law Amendments." Journal of International Arbitration 34, Issue 3 (July 1, 2017): 567–83. http://dx.doi.org/10.54648/joia2017027.
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South Korea has amended its national arbitration law, effective as of 30 November 2016. Many of the changes are adopted or adapted from the 2006 Model Law Amendments, while others clarify, simplify, or improve on the prior status quo. The amendments include, among other changes: establishing the enforceability of interim awards, relaxing the ‘writing’ requirement for valid arbitration agreements, improving the procedures for court-assisted evidence-taking, and revising the definition of ‘arbitration’ to expand the scope of arbitral disputes.
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Lee, Byung-Mun, and Eunok Park. "A study on separability and validity of arbitration agreement in international business contracts-with advices and suggestions for Korean merchants." Journal of Korea Trade 20, no. 2 (June 6, 2016): 149–66. http://dx.doi.org/10.1108/jkt-04-2016-0009.
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Purpose – The purpose of this paper is to provide Korean merchants and practitioners who are not English native speakers with the practical advices and suggestions in drafting arbitration agreements. Design/methodology/approach – The doctrine of separability of arbitration and the competence-competence principle are studied based on the rules of international conventions and internationally recognized arbitral institutes. In addition, the laws of two common law jurisdictions, which are the USA and the UK are discussed with the Korean arbitration law, which follows the civil law system. This study also includes analysis of cases in order to show application of these two principles to practice and to give practical advices and implications to practitioners. Findings – Most national legislatures and jurisdictions approve the doctrine of separability of arbitration agreement and the competence-competence principle under international commercial arbitration. When there is a dispute regarding the existence or the validity of arbitration agreement, it is determined based on the prima facie test without being affected by the main contract in which the arbitration agreement is inserted. In practice, however, there are many occasions where the arbitration agreements are void or inoperable because of its contents. Many practical advices and suggestions are provided. Originality/value – This paper analyzes arbitration agreements which are used in practice so that it provides many practical advices to practitioners in terms of legal effects of languages and linguistic use.
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Claxton, James M. "Litigating, Arbitrating and Mediating Japan–Korea Trade and Investment Tensions." Journal of World Trade 54, Issue 4 (August 1, 2020): 591–614. http://dx.doi.org/10.54648/trad2020026.
Повний текст джерелаАнотація:
In July 2019, Japan introduced measures tightening export restrictions to South Korea on three chemicals critical to the manufacture of consumer electronics. The restrictions prompted an animated response by the Korean government that has included WTO consultations and threats to terminate an intelligence-sharing agreement with Japan. Meanwhile, the controversy has filtered down to the public with boycotts of Japanese products in Korea. Tension between the states has been unusually high since late 2018 when the Korean Supreme Court affirmed a judgment against Japanese companies accused of forcing Korean nationals to labour for them during Japan’s colonial rule. Japan argues that such claims are precluded by a 1965 treaty normalizing post-war relations. While Japan states that its trade restrictions were not motivated by the judgment, the disputes have together contributed to the worst breakdown in cross-border relations in five decades. This article evaluates Korea’s trade claims against Japan, means of resolving them, and the challenges that the claims face in the WTO dispute settlement system. The article also considers claims from the Japanese side through the International Court of Justice (ICJ), inter-state arbitration, and investor-state dispute settlement. We conclude that formal mediation offers an effective means to facilitate negotiations and centralize the WTO and other treaty disputes in a single forum involving multiple stakeholders. WTO, Japan, Korea, ISDS, mediation, arbitration, export, international trade law, investment treaties
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PRISLAN, Vid. "Challenging Domestic Judgments Through Investment Arbitration: Implications for the Forced Labour Litigation in Korea?" Asian Journal of International Law 11, no. 1 (January 2021): 89–117. http://dx.doi.org/10.1017/s2044251320000296.
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AbstractThis paper considers the international legal implications of certain civil lawsuits that recently resulted in Japanese companies being ordered to pay compensation to Korean victims of forced labour, focusing specifically on whether investor-state arbitration could provide a means of redress against judgments affecting those companies. After identifying the jurisdictional hurdles that those companies might face were they to challenge those judgments before an Arbitral Tribunal, this paper explores the most relevant treaty protection disciplines that could be relied upon in bringing such challenges, and discusses the remedies that a competent Arbitral Tribunal could prescribe were it to find that those judgments were not in conformity with Korea's international obligations. Building on existing jurisprudence, this paper shows that investment arbitration may provide a means for offsetting the adverse consequences of Korean forced labour litigation, but also highlights a number of difficulties that the Japanese companies would face in pursuing such an avenue.
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Cho, Inyoung. "Anti-Suit Injunction and Anti-Arbitration Injunction under Revised Korean Arbitration Law and Recent Supreme Court Cases." Justice 178 (June 30, 2020): 281–327. http://dx.doi.org/10.29305/tj.2020.06.178.281.
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Lee, Gyooho. "Restitution of stolen cultural properties: Lessons and challenges from recent Korean cases." Pravovedenie 64, no. 1 (2020): 164–75. http://dx.doi.org/10.21638/spbu25.2020.113.
Повний текст джерелаАнотація:
The Republic of Korea adopted the 1970 Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property on 14 February, 1983. The Convention has some disadvantages in that its scope does not cover the cultural properties stolen from Korean territory during the Japanese colonial era, which lasted from 1910 to 1945, and the Korean War from 1950 to 1953 because it cannot be retroactively applied to cultural properties stolen during these years, and it falls within the field of public international law. Hence, in order for the Korean government and the legal community to seek more effective methods of restitution of cultural properties stolen during these periods, alternative legal tools need to be discussed. Some good examples include the donation or purchase of stolen cultural property, arbitration of disputes over the restitution of cultural property, bilateral international instruments concerning the restitution of cultural property, and the restitution of stolen cultural property though the application of foreign domestic public law or private international law. In particular, the main focus of this article is on the restitution of stolen cultural property though foreign domestic public law or private international law. At the beginning of the article, it is illustrated where overseas Korean cultural properties are located. The article then delves into why the focus is on the restitution of stolen cultural property though the application of foreign domestic public law or private international law. Three examples are discussed based on these scenarios. The article concludes by looking at the lessons learned from these cases and the challenges that the Korean government and legal community are likely to face.
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Jalal El Ahdab. "Revising the Korean Arbitration Act From a Civil Law Jurisdiction Perspective: The Example of the French Arbitration Reform." JOURNAL OF ARBITRATION STUDIES 24, no. 3 (September 2014): 125–69. http://dx.doi.org/10.16998/jas.2014.24.3.125.
Повний текст джерелаДисертації з теми "Korean arbitration law"
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Kim, Doowon. "Etude comparée du régime de la sentence arbitrale en droit coréen et en droit français." Thesis, Paris 2, 2021. http://www.theses.fr/2021PA020092.
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Une étude comparative approfondie en matière d’arbitrage entre le droit coréen et le droit français n’avait jamais été effectuée en France. Surtout, du point de vue comparatiste coréen, le droit de l’arbitrage français a un intérêt particulier dans l’optique des possibles transformations à venir du droit de l’arbitrage coréen. En effet, depuis la réforme de 1999, les juristes coréens portent leur attention, y compris après la récente révision de 2016, sur la réglementation étrangère de l’arbitrage, et s’intéressent au rayonnement international du système français d’arbitrage. Il apparaît dès lors pertinent de présenter l’évolution des deux droits de l’arbitrage en mettant l’accent sur les réformes qui apportent des solutions aux problèmes soulevés par l’application des règles antérieures. Ainsi, la question est de savoir si la législation coréenne actuelle est suffisante pour faire face aux exigences de la communauté internationale et pour promouvoir sur le plan international le système coréen d’arbitrage commercial. Si tel n’est pas le cas, le droit français pourrait-il constituer une source d’inspiration pour une réforme des pratiques et du droit de l’arbitrage ? Pour répondre à ces questions, il apparaît intéressant de comparer notamment le régime de la sentence arbitrale en droit coréen et en droit français. Cette analyse comparative s’attachera donc à expliquer les raisons des différences entre les solutions apportées par ces deux droits, tant au plan législatif qu’au plan juridictionnel, afin de guider les juristes coréens et de mettre en évidence une évolution susceptible de rassurer les parties étrangères envisageant de se soumettre à un arbitrage en Corée du SudAn in-depth comparative study of arbitration between Korean and French law has never been considered in France. From the Korean comparative point of view, French arbitration law is of particular interest for the next possible directions of Korean arbitration law. For this reason, since the 1999 reform, even after the 2016 revision, Korean jurists have been paying attention to foreign arbitration regulations, especially with regard to the international influence of the French arbitration system. Therefore, it seems relevant to present the evolution of the two arbitration laws by focusing on several reforms that provide solutions to the problems raised by the application of the previous rules. Thus, the question is whether the current Korean legislation is sufficient to meet the requirements of the international community and to promote the Korean commercial arbitration system internationally. If not, should French law be used as an inspiration to define new directions for arbitration practices and laws ? In this respect, it seems interesting to compare in particular the regime of the arbitral award in Korean law and in French law. This comparative analysis will therefore seek to explain the reasons of the differences in the solutions provided by these two laws, on a legislative and jurisdictional level, in order to guide the Korean doctrine and legislator and to highlight developments likely to reassure foreign parties considering arbitration in South Korea
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Kim, Younsik. "Challenges and opportunities for the national constitutional system in dealing with the global investment regime : a case study of the indirect expropriation doctrine and investor-state arbitration under the free trade agreement between the Republic of Korea and the United States of America." Thesis, University of Edinburgh, 2012. http://hdl.handle.net/1842/7575.
Повний текст джерелаАнотація:
In 2011, Korea ratified the Korea-US Free Trade Agreement (KORUS-FTA). This treaty remains controversial in Korean society, particularly because many Koreans claim that the indirect expropriation doctrine under investor-state arbitration in the investment chapter will allow global investors to challenge governmental regulation justified by the Korean constitution. Despite such criticism, the KORUS-FTA indirect expropriation doctrine and the Korean constitutional property doctrine share more than might be expected in practice. However, this substantive doctrinal convergence between national and global legal systems does not eliminate all risks of conflict between the nation-state and global investors; conflicts can occur whenever two actors interpret the same text differently. Once an investment dispute happens, independent investor-state arbitration reviews governmental action according to independent interpretative rules. Systems theory suggests that nation-states can turn such global challenges into opportunities by taking contextual control over global investment in relying on the global investment legal system of the global investment regime. The nation-state can convince global investors that the nation-state respects transnational investment mechanisms, whilst indirectly imbuing norm-making with minimum national interest without incurring serious damage to its reputation. To be specific, the nation-state can attract more foreign investors by accepting the indirect expropriation doctrine and the investor-state arbitration respected by global investors. Simultaneously, the nation-state can secure minimum control over global investment under legitimate regulatory power reflected in the same indirect expropriation clause. In addition, the nation-state can guide the investment tribunal to secure a balance between investment protection and the regulatory power of the host state by prescribing the proportionality principle. Contextual control can be a sub-optimal choice for the nation-state in the sense that it avoids a worst-case scenario by securing proportionality and predictability. In order to make this measure more effective, the current global investment legal system needs to secure more commensurate autonomy or autopoiesis by furthering simultaneous and balanced structural coupling with a greater variety of social powers. In this context, global constitutionalism provides national constitutional tools for the nation-state; specifically, democratic participation in national treaty-making procedures and autopoietic structuralisation of the investment arbitration mechanism can make the substantive contents and application of global investment law fairer and more acceptable, not only to global investors and strong states, but also to social movements and smaller countries. In the context of the KORUS-FTA, the Korean government needs to make the treaty terms of indirect expropriation clearer through democratic participation. At the same time, the Korea should pay attention to making arbitration process reflexive to more various social interests, whilst protecting its operation from inappropriate influences. Such measures can prevent KORUSFTA tribunals from making extremely unacceptable decisions to actors of the global investment regime, including the Korean government, although they could not guarantee ideal decisions that stratify all actors perfectly.
Книги з теми "Korean arbitration law"
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Symposium, on International Arbitration between Korea China and Japan (1993 Sŏul Korea). Han-Chung-Il Kukche Chungjae Simpʻojium =: Symposium on International Arbitration between Korea, China, and Japan. Sŏul-si: Taehan Sangsa Chungjaewŏn, 1993.
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Joongi, Kim. International Arbitration in Korea. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755432.001.0001.
Повний текст джерелаАнотація:
This book provides an introduction to more than 140 arbitral cases and commentaries in Korea. It introduces the arbitration community to the jurisprudence and scholarship of this underappreciated but well-developed jurisdiction. The book encompasses all the major current and historical arbitration cases in Korea, alongside practical and scholarly commentary. In keeping with the growth of international arbitration in Asia, Korea is emerging as an alternative centre of arbitration, and the number of international arbitration cases involving Korean parties remains substantial in major arbitration institutions such as the International Chamber of Commerce, Singapore International Arbitration Centre, and Hong Kong International Arbitration Centre. The Korean Commercial Arbitration Board (KCAB) continues to report substantial growth in the number of international arbitrations. Furthermore, Korea’s Arbitration Act, as well as the KCAB’s own International Rules, were revised in 2016.
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Joongi, Kim. 11 Other Forms of Arbitration and the Future of Arbitration in Korea. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755432.003.0011.
Повний текст джерелаАнотація:
This chapter looks at other forms of arbitration and reflects on the future of arbitration in Korea. In addition to commercial arbitration, other forms of arbitration, particularly investment treaty arbitration, are becoming increasingly important for Korean parties, practitioners, and researchers. Recent efforts to establish a dispute-resolution process through a similar framework between North and South Korea are also discussed. The chapter shows the joint contributions of both sides toward the South–North arbitration efforts. Finally, the chapter notes that while in many regards the future of arbitration in Korea looks bright, despite this outlook, there are still challenges yet to overcome.
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Joongi, Kim. 4 The Arbitral Tribunal. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755432.003.0004.
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This chapter discusses Korean arbitral tribunals. Korean courts have been strict in applying the provisions in the Arbitration Act regarding these. The courts have not hesitated to set aside awards when they have found that the parties have not complied with provisions concerning tribunal requirements or where tribunals have had conflicts of interest. Under the new 2016 Arbitration Act, furthermore, when the parties fail to appoint an arbitrator or reach agreement on a sole arbitrator or the chair, the court can now designate an institution such as the Korean Commercial Arbitration Board (KCAB) to appoint the arbitrator. The KCAB has accumulated considerable experience and has greater institutional knowledge than the courts concerning the expertise of potential arbitrators, particularly international ones. With these developments in mind, the chapter reviews some formative cases which have shaped these tribunals in their current incarnation.
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Joongi, Kim. 7 The Role of Courts and Law Regarding Counsel. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755432.003.0007.
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This chapter details the role of courts regarding counsel in an arbitration proceeding. Korean courts will generally only review whether a case should be subject to arbitration or court litigation before an arbitral tribunal has been constituted. After constitution, they will defer to the arbitral tribunal. This development, however, is a recent one. From here the chapter explores a tribunal’s negative competence-competence ruling, which may be subject to court review, as well as the capacity of the courts to provide some measure of interim relief. The chapter also discusses objections during court proceedings, as well as the source of legal fees.
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Joongi, Kim. 1 Introduction. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755432.003.0001.
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This introductory chapter provides a brief overview of the scope of international arbitration in Korea. From modest beginnings, Korea has managed to establish a modern arbitration system that has become a common means of dispute resolution that operates under a consensual framework based on party autonomy. Korea’s accelerated growth in arbitration has been closely intertwined with its economic development, as it catapulted itself from one of the poorest countries in the world to recently joining the Paris Club of the world’s largest creditors, all in the span of fifty years. The chapter thus describes the historical development of arbitration in Korea and how its arbitration is practiced. It also includes a short outline of Korea’s legal industry in general, before finally discussing a few explanatory notes for reference in later chapters.
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Joongi, Kim. 2 The Arbitration Agreement. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755432.003.0002.
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This chapter provides an overview of arbitration agreements in particular—what they entail and how these agreements are formed. Arbitration after all begins with an arbitration agreement between parties to settle a dispute by means of arbitration. Korea’s 2016 Arbitration Act adopts the Model Law definition of an arbitration agreement. It provides that, alongside written requirements, electronic expressions of intent such as those made by email and telex, and other expressions by electronic means, can also be considered as arbitration agreements if the intent of the parties can be confirmed. Further requirements have been laid down in the seminal 2003 case Republic of Korea v Rotem Co. The chapter then goes on to cite further cases that demonstrate the various aspects of an arbitration agreement, such as its institutions, scope, validity and effect, and so on.
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Kim, Joongi. International Arbitration in Korea. Oxford University Press, 2017.
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Joongi, Kim. 5 Applicable Law. Oxford University Press, 2017. http://dx.doi.org/10.1093/law/9780198755432.003.0005.
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This chapter focuses on the choice and enforcement of applicable law in arbitration agreements. In international arbitration cases, Article V(1)(a) of the New York Convention provides that the validity of an arbitration agreement should be first determined under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. Hence, if the parties have not chosen the applicable law for an arbitration agreement, ‘the default rule’ is that the law of the place of arbitration shall apply. This chapter addresses the question as it applies to Korea and considers cases where conflict or a misapplication of the law is in effect. Moreover, it also covers several cases in which courts have applied the Act on International Private Law (AIPL), Korea’s conflict-of-laws statute, to determine the applicable law.
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LLC, Bae, and Kim and Lee. Arbitration Law of Korea: Practice and Procedure. JurisNet, LLC, 2012.
Знайти повний текст джерелаЧастини книг з теми "Korean arbitration law"
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Kwang, Hyun Suk. "Part 2 National and Regional Reports, Part 2.2 Asia: Coordinated by Yuko Nishitani and Béligh Elbalti, 37 South Korea: South Korean Perspectives on the Hague Principles." In Choice of Law in International Commercial Contracts. Oxford University Press, 2021. http://dx.doi.org/10.1093/law/9780198840107.003.0037.
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This chapter studies South Korean perspectives on the Hague Principles. Korea has enacted choice of law rules for courts in litigation and choice of law rules for arbitral tribunals. The former are set forth in the Private International Law Act of Korea (KPILA) and the latter in the Arbitration Act of Korea (KAA). The single most important Korean legislation on private international law is the KPILA, which mainly consists of provisions on applicable law and on international jurisdiction in civil and commercial matters. As for the KAA, it was modelled on the 1985 Model Law on International Commercial Arbitration of United Nations Commission on International Trade Law (UNCITRAL), and further amended in 2016 in order to reflect the amendments adopted in 2006 to the UNCITRAL Model Arbitration Law. Since Korea has detailed choice of law rules for courts and arbitral tribunals, the role which could be played by the Hague Principles in Korea will be very limited. Korean courts could use them for reference in the interpretation, supplementation, and/or development of applicable rules of choice of law regarding matters not covered by the choice of law rules of the KPILA.
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Lee, Gyooho. "The Korean Foreign Investment Law and Investor-State Dispute Settlement." In Foreign Investment and Investment Arbitration in Asia, 139–78. Intersentia, 2019. http://dx.doi.org/10.1017/9781780688404.006.
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"Caught in the Middle: South Korea and the South China Sea Arbitration Decision." In Asian Yearbook of International Law, Volume 21 (2015), 96–120. Brill | Nijhoff, 2017. http://dx.doi.org/10.1163/9789004344556_007.
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