Presentation on theme: "Kap-You (Kevin) Kim 10 January 2012"— Presentation transcript:
1Kap-You (Kevin) Kim 10 January 2012 Significance of UNCITRAL Texts in the Asia-Pacific Region: CISG and UNCITRAL Texts on ArbitrationKap-You (Kevin) Kim 10 January 2012
2Table 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
3CISG Status of CISG in Asia South Korea (2005) China (1988) Japan (2009)Currently only 4 Asian states signed CISG, namely China, Singapore, South Korea and Japan(in the order of its adoption).China: 11 December 1986 (Acceptance) / 1 January 1988 (Entry into force)Singapore: 16 February 1995 (Ratification) / 1 March 1996 (Entry into force)KOREA: 17 February 2004 (Accession) / 1 March 2005 (Entry into force)JAPAN: 1 July 2008 (Accession) / 1 August 2009 (Entry into force)Singapore (1996)
4CISG Scope of Application Direct Application Article 1(1)(a) – When the place of business of each party is in different Contracting StatesIndirect ApplicationArticle 1(1)(b) – When the rules of private international law lead to the application of the law of a Contracting StateDeclaration to Indirect ApplicationChina and Singapore have declared not to be bound by Article 1(1)(b)직접적용 제1(1)(a)조 – 양 당사자의 영업소 소재지가 모두 체약국인 경우간접적용 제1(1)(b)조 – 법정지의 국제사법규칙에 따라 어느 체약국의 법이 준거법이 되는 경우 (중국과 싱가폴은 간접적용에 대하여 유보 선언)
5CISG Scope of Application If parties designate “Korean law” as applicable lawCISG supersedes Korean Civil Code and Korean Commercial CodeThus designation of Korean law as substantive law is construed as a designation to be bound by the CISGAccordingly, CISG will apply to the contract석광현 CISG 해설(2010) 60면- 당사자가 “한국법”을 준거법으로 지정하는 경우와 같이 단순히 체약국의 법을 지정하는 것만으로는 CISG의 적용이 배제되지 않음.CISG는 체약국의 법의 일부로서, 체약국의 민·상법 또는 계약법에 대한 특별법이기 때문임다만 “한국의 민·상법”을 준거법으로 합의한 경우에는, 협약의 적용이 배제될 것임.
6CISG Movement toward Amendment to Korean Civil Code Commission on Amendment to Civil Code in Ministry of JusticeOrganized in 2009 to review and amend Korean Civil CodeCurrently under progressSome scholars urge that Korean Civil Code should assimilate the CISG법무부 내에 민법개정위원회 설치2011. 현재 6개의 분과로 나뉘어 민법개정작업이 진행 중석광현 CISG 해설(2010) 410면“2009년 개시된 민법개정작업 과정에서 협약의 장점 중 취할 바를 찾아 적정한 범위 내에서 개정 민법에 반영할 필요가 있음”“중국은 1999년 시행된 계약법 통칙에서 이미 협약의 내용을 많이 반영하였는데, 현재 민법개정작업을 추진 중인 한국과 일본에서도 그렇게 한다면, 한중일 간에 적어도 계약법 특히 동산매매법 분야의 규범을 상당부분 조화시킬 수 있을 것임”Note: China’s adoption of CISG“In drafting China’s unified contract law (1999), CISG was one of the main references which had been followed on different occasions”
7Arbitration Model Law Legislation Based on Model Law in Asia South Korea (1999)Japan (2003)Hong Kong (2011)Thailand (2002)Philippines (2004)Cambodia (2006)Korea (1999), Thailand (2002), Japan (2003), The Philippines (2004), Malaysia (2005) and Singapore (with recent amendments in 2010) have all adopted the UNCITRAL Model Law.Recently, Australia adopted Model Law revisions in July Hong Kong’s Arbitration Ordinance which has been in force since June 2011 is based on the Model Law. Vietnam has also amended their arbitration legislation which has been in force since 1 January 2011.Malaysia (2005)Singapore (2010)
8Arbitration Model LawException – Mainland China, Indonesia and North KoreaChinaNorth KoreaThe only three notable states which have not adopted the Model Law are the PRC, Indonesia and North Korea.Indonesia
9Arbitration Model Law Case Study – Arbitration Law of China Not in line with UNCITRAL Model LawThree Particulars are Required for Valid Arbitration Clause:expression of intention to apply for arbitrationmatters for arbitrationa designated arbitral institutionArbitration under UNCITRAL Arbitration Rules not Available in ChinaPursuant to the relevant provisions of the Arbitration Law of China, a valid arbitration clause shall contain three particulars, i.e., an expression of intention to apply for arbitration, matters for arbitration, and a designated arbitral institution.Accordingly ad hoc arbitration under UNCITRAL Arbitration Rules is not available in China.
10Arbitration: ICC Rules, Shanghai, shall apply Arbitration Model LawCase Study – Arbitration Law of ChinaArbitration Clause Above Found to be Invalid by PRC Supreme People’s CourtBecause of no explicit designation of an arbitration institutionEven Standard ICC Arbitration Clause May be Declared Null and VoidArbitration: ICC Rules, Shanghai, shall applyThe Supreme People's Court of the People's Republic of China stated on July 8, 2004 that: "The arbitration clause in the contract in this case provides that Arbitration: ICC Rules, Shanghai, shall apply'. […] From the wording of the arbitration clause in this case, there are an expression of intention to apply for arbitration, applicable arbitration rules and the place of arbitration, but there is no explicit designation of an arbitration institution. Thus, this arbitration clause shall be held as invalid." (Zublin International GmbH (Germany) v. Wuxi Woke General Engineering Rubber Co., Ltd.) To avoid similar cases from arising in the future, the ICC Court suggested in January 2005 on its website that: “it would in any case be prudent for parties wishing to have an ICC arbitration in Mainland China to include in their arbitration clause an explicit reference to the ICC International Court of Arbitration, so as to avoid the risk of having the standard ICC clause declared null and void for lack of a sufficiently explicit reference to the arbitration institution of their choice."
11New York Convention New York Convention – the Cornerstone South Korea (1973)China (1987)Japan (1961)Thailand (1960)Philippines (1967)Viet Nam (1995)Cambodia (1960)The New York Arbitration Convention of 1958 is the cornerstone of international commercial arbitration. To date, 155 countries have signed the Convention.Malaysia (1986)Singapore (1986)Indonesia (1982)
12New York Convention Rise of Asia-based International Arbitration Statistics of ICC Arbitration ( )
13New York Convention Exception – North Korea North Korea The only notable state which have not signed the Convention is North Korea.The recent death of North Korean leader Kim Jong Il and promotion of his untested son Kim Jong Un as his successor is fueling uncertainty.As North Korea's leadership transition process unfolds, we will be watching the fate of economic reforms.
14UNCITRAL Arbitration Rules Comprehensive Set of Procedural Rules for Arbitral ProceedingsCover all aspects of the arbitral processProvide a model arbitration clauseSet out procedural rules regarding the appointment of arbitrators and the conduct of arbitral proceedingsEstablish rules in relation to the form, effect and interpretation of the award.Widely used in ad hoc arbitrations as well as administered arbitrationsThe UNCITRAL Arbitration Rules provide a comprehensive set of procedural rules upon which parties may agree for the conduct of arbitral proceedings arising out of their commercial relationship and are widely used in ad hoc arbitrations as well as administered arbitrations.The Rules cover all aspects of the arbitral process, providing a model arbitration clause, setting out procedural rules regarding the appointment of arbitrators and the conduct of arbitral proceedings and establishing rules in relation to the form, effect and interpretation of the award.
15UNCITRAL Arbitration Rules Korean Investment TreatiesIncorporation of the Rules into FTAsProvided as an option under FTAs with ASEAN, Chile, India, Peru, Singapore, and the USAOut of 8 FTAs by Korea, 6 FTAs provide the option to arbitrate pursuant to the UNCITRAL Arbitration Rules.Incorporation of the Rules into BITsMany BITs by Korea (e.g., BITs with Japan, Hong Kong, Mexico, Argentina, etc.) provide the option to arbitrate pursuant to the UNCITRAL Arbitration RulesArbitration pursuant to the UNCITRAL Rules is provided as an option under FTAs with ASEAN, Chile, India, Peru, Singapore, and the USA. This means that out of eight FTAs which Korea is a signatory of, six FTAs provide the option to arbitrate pursuant to the UNCITRAL Rules.In the case of BITs, BITs with Japan, Hong Kong, Mexico and Argentina provide the option to arbitrate pursuant to the UNCITRAL Rules.
16UNCITRAL Arbitration Rules Commercial Dispute Resolution with North KoreaAgreement on the Procedure of Commercial Dispute Resolution between Parties in South and North Korea (2000)Sets out arbitration as a commercial dispute resolution methodInstitutional arbitration through South and North Korean Commercial Arbitration Board to be constituted (not constituted yet)Detailed Procedural Rules PendingUNCITRAL Arbitration Rules can be main reference for procedural rules to be agreed between South and North Korea.남북 사이의 상사분쟁해결절차에 관한 합의서 (2000년 12월 16일 체결)제1조 “남북 사이의 경제교류·협력과정에서 생기는 상사분쟁은 당사자 사이에 협의의 방법으로 해결한다. 협의의 방법으로 해결되지 않는 분쟁은 중재의 방법으로 해결하는 것을 원칙으로 한다.”제2조 “남과 북은 경제교류·협력과정에서 생기는 상사분쟁을 해결하기 위하여 각각 위원장 1명, 위원 4명으로 남북상사중재위원회(이하 "중재위원회"라 한다)를 구성한다.” (현재까지 구성되지 않음)제3조 “중재위원회는 다음과 같은 기능을 수행한다. […] 3. 중재규정과 그 관련규정의 제정 및 수정·보충” (중재규정이 아직 제정되지 않음)
17Effective Dispute Resolution South Korea and Effective Commercial Dispute ResolutionDoing Business 2012 (World Bank Report)Study by World Bank ranked South Korea as 2nd highest in “Enforcing Contracts”
18Effective Dispute Resolution South Korea and Effective Commercial Dispute ResolutionDoing Business 2012 (World Bank Report)