The purpose of this study is placed in contribution to developing and propagating the commercial arbitration system in Korea.
It was not until 1966 that the Arbitration Law enacted in our country. However, there is a long established tradition of arb...
The purpose of this study is placed in contribution to developing and propagating the commercial arbitration system in Korea.
It was not until 1966 that the Arbitration Law enacted in our country. However, there is a long established tradition of arbitration in Europe and the U.S.A.
Dispute-settling mechanisms in any given society range from the informal to the formal and even ritualistic. They differ as to the solutions devised and as to whether they utilize "third parties" as deciders or purposes of solutions.
One major classification is third party machinery that is binding on the disputants, but such dispute-settling machinery is not all of the same type, either in our formal legal system or in our commercial groups.
In recent years, there has been a dramatic increase in the number of transnational arbitration cases filed in arbitration centers around the world. In the past arbitrations were simple, informal procedures, handled by commercial associations or commercial lawyers located in cities such as Paris or London. They often had little litigation experience.
Today, international arbitration centers are located in Paris, London, New York, Washington, and other cities around the world and handle highly sophisticated commercial disputes, involving millions or even hundreds of million dollars, in which parties are represented by litigation attorneys from major U.S. or foreign laws firms.
Because of this rapid expansion and growth in the use of arbitration system, the system has been faced with a number o f serious difficulties. While many lawyers and businessmen advocated the use of arbitration as the bettermethod of resolving international trade disputes, they sometimes failed to warn potentialusers that the system was still in its infant stage.
The reasons commonly given for abitration-speed, lower expense, more expert decision, greater privacy--are appealing to all businessmen, and yet not all utilize arbitration.
The first factor as being theoretically important in determining whether or not a particular trade needed institutionalized use of arbitration, was the nature of the economic function being performed in relation to the movement of the goods by the association.
The second major factor that we thought would be important in determining the need for arbitration was the participation cf the members of the association in foreign trade,
The third factor is related to the kind of goods dealt with by the members of the association, One of the major areas of dispute among businessmen centers on the quality of goods involved. If, therefore, the goods are such as not .to be readily susceptible of quality determination by third persons, arbitration or, indeed, inspection, is an unlikely method of settling disputes.
Since a commercial arbitration normally arises out of contracts between the parties to the dispute, and since its major issue is usually one of either in terpretation of the contents of the contract or the measurement of performance, it is obvious that one of the factors enhancing predictability of result is the extent to which the arbitrator is aware of the meaning of the contract terms and the significance of the various aspect of performance under it.
Procedures of arbitration are as follows ; The first phase deals with the filing of the case, the selection of arbitrators, and the setting of the hearing date.
The second phase consists of the hearings themselves.
The third phase consists of the deliberations among the arbitrators. Fact-finding norms of an informed nature in commercial matters are more likely to lie in arbitrators than in a judge. In that sense, the system of arbitration has advantages over the court system although competent counsel car. supply such norms for the judge.
The process of decision at the Korean Commercial Arbitration Association is as rational as the court process in terms of the logical decision. The difficulties in arbitration are the same as those in the courts, that is, how to provide the deciders with the norms and standards that are best suited to wise decision.
Whether the best procedures have been evolved for providing such knowledge either in arbitration or in the courts without sacrificing the other real values of an adversary system seems open to question.
This paper introduces commercial arbitration system an4 rules in relation to the international commercial arbitrotion, explains the statutory provisions for commercial arbitration in our country and the United Nations convention on the recognition and enforcement of foreign arbitral awards, and furthermore makes recommendations for the development of the commercial arbitration system in Korea.