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Significance of UNCITRAL Texts in the Asia-Pacific Region: CISG and UNCITRAL Texts on Arbitration Kap-You (Kevin) Kim 10 PowerPoint Presentation
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Significance of UNCITRAL Texts in the Asia-Pacific Region: CISG and UNCITRAL Texts on Arbitration Kap-You (Kevin) Kim 10 January 2012 . Table of Contents. CISG and UNCITRAL Texts on Arbitration . United Nations Convention on Contracts for the International Sale of Goods ( CISG )

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Significance of UNCITRAL Texts in the Asia-Pacific Region:CISG and UNCITRAL Texts on Arbitration

Kap-You (Kevin) Kim10 January 2012

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Table of Contents

CISG and UNCITRAL Texts on Arbitration

  • United Nations Convention on Contracts for the International Sale of Goods (CISG)
  • UNCITRAL Model Law on International Commercial Arbitration (Arbitration Model Law)
  • Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)
  • UNCITRAL Arbitration Rules
slide3

CISG

Status of CISG in Asia

South Korea (2005)

China (1988)

Japan (2009)

Singapore (1996)

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CISG

Scope of Application

  • Direct Application
    • Article 1(1)(a) – When the place of business of each party is in different Contracting States
  • Indirect Application
    • Article 1(1)(b) – When the rules of private international law lead to the application of the law of a Contracting State
  • Declaration to Indirect Application
    • China and Singapore havedeclared not to be bound by Article 1(1)(b)
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CISG

Scope of Application

  • If parties designate “Korean law” as applicable law
    • CISG supersedes Korean Civil Code and Korean Commercial Code
    • Thusdesignation of Korean law as substantive law is construed as a designation to be bound by the CISG
    • Accordingly, CISG will apply to the contract
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CISG

Movement toward Amendment to Korean Civil Code

  • Commission on Amendment to Civil Code in Ministry of Justice
    • Organized in 2009 to review and amend Korean Civil Code
    • Currently under progress
    • Some scholars urge that Korean Civil Code should assimilate the CISG
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Arbitration Model Law

Legislation Based on Model Law in Asia

South Korea (1999)

Japan (2003)

Hong Kong (2011)

Thailand (2002)

Philippines (2004)

Cambodia (2006)

Malaysia (2005)

Singapore (2010)

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Arbitration Model Law

Exception – Mainland China, Indonesia and North Korea

China

North Korea

Indonesia

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Arbitration Model Law

Case Study – Arbitration Law of China

  • Not in line with UNCITRAL Model Law
  • Three Particulars are Required for Valid Arbitration Clause:
    • expression of intention to apply for arbitration
    • matters for arbitration
    • a designated arbitral institution
  • Arbitration under UNCITRAL Arbitration Rules not Available in China
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Arbitration Model Law

Case Study – Arbitration Law of China

  • Arbitration Clause Above Found to be Invalid by PRC Supreme People’s Court
    • Because of no explicit designation of an arbitration institution
  • Even Standard ICC Arbitration Clause May be Declared Null and Void

Arbitration: ICC Rules, Shanghai, shall apply

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New York Convention

New York Convention – the Cornerstone

South Korea (1973)

China (1987)

Japan (1961)

Thailand (1960)

Philippines (1967)

Viet Nam (1995)

Cambodia (1960)

Malaysia (1986)

Singapore (1986)

Indonesia (1982)

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New York Convention

Rise of Asia-based International Arbitration

Statistics of ICC Arbitration (2004-2010)

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New York Convention

Exception – North Korea

North Korea

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UNCITRAL Arbitration Rules

UNCITRAL Arbitration Rules

  • Comprehensive Set of Procedural Rules for Arbitral Proceedings
    • Cover all aspects of the arbitral process
    • Provide a model arbitration clause
    • Set out procedural rules regarding the appointment of arbitrators and the conduct of arbitral proceedings
    • Establish rules in relation to the form, effect and interpretation of the award.
  • Widely used in ad hoc arbitrations as well as administered arbitrations
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UNCITRAL Arbitration Rules

Korean Investment Treaties

  • Incorporation of the Rules into FTAs
    • Provided as an option under FTAs with ASEAN, Chile, India, Peru, Singapore, and the USA
    • Out of 8 FTAs by Korea, 6 FTAs provide the option to arbitrate pursuant to the UNCITRAL Arbitration Rules.
  • Incorporation of the Rules into BITs
    • Many BITs by Korea (e.g., BITs with Japan, Hong Kong, Mexico, Argentina, etc.) provide the option to arbitrate pursuant to the UNCITRAL Arbitration Rules
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UNCITRAL Arbitration Rules

Commercial Dispute Resolution with North Korea

  • Agreement on the Procedure of Commercial Dispute Resolution between Parties in South and North Korea (2000)
    • Sets out arbitration as a commercial dispute resolution method
    • Institutional arbitration through South and North Korean Commercial Arbitration Board to be constituted (not constituted yet)
  • Detailed Procedural Rules Pending
    • UNCITRAL Arbitration Rules can be main reference for procedural rules to be agreed between South and North Korea.
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Effective Dispute Resolution

South Korea and Effective Commercial Dispute Resolution

  • Doing Business2012 (World Bank Report)
    • Study by World Bank ranked South Korea as 2nd highest in “Enforcing Contracts”
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Effective Dispute Resolution

South Korea and Effective Commercial Dispute Resolution

  • Doing Business2012 (World Bank Report)