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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
2
Table of ContentsTable of Contents
1. United Nations Convention on Contracts for the International Sale of Goods (CISG)
2. UNCITRAL Model Law on International Commercial Arbitration (Arbitration Model Law)
3. Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention)
4. UNCITRAL Arbitration Rules
CISG and UNCITRAL Texts on Arbitration
3
CISGCISG
Status of CISG in Asia
South Korea (2005)
Singapore (1996)
China (1988)
Japan (2009)
4
CISGCISG
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 have declared not to be bound by Article 1(1)(b)
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CISGCISG
Scope of Application
If parties designate “Korean law” as applicable law
CISG supersedes Korean Civil Code and Korean Commercial Code
Thus designation of Korean law as substantive law is construed as a
designation to be bound by the CISG
Accordingly, CISG will apply to the contract
6
CISGCISG
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 LawArbitration Model Law
Legislation Based on Model Law in Asia
South Korea (1999)
Singapore (2010)
Japan (2003)
Hong Kong (2011)
Cambodia (2006)
Thailand (2002)Philippines (2004)
Malaysia (2005)
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Arbitration Model LawArbitration Model Law
Exception – Mainland China, Indonesia and North Korea
China
Indonesia
North Korea
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Arbitration Model LawArbitration 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 LawArbitration 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 ConventionNew York Convention
New York Convention – the Cornerstone
South Korea (1973)
Singapore (1986)
Japan (1961)
Cambodia (1960)
Thailand (1960) Philippines (1967)
Malaysia (1986)
China (1987)
Viet Nam (1995)
Indonesia (1982)
12
New York ConventionNew York Convention
Rise of Asia-based International Arbitration
Statistics of ICC Arbitration (2004-2010)
13
New York ConventionNew York Convention
Exception – North Korea
North Korea
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UNCITRAL Arbitration RulesUNCITRAL 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 RulesUNCITRAL 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 RulesUNCITRAL 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 ResolutionEffective Dispute Resolution
South Korea and Effective Commercial Dispute Resolution
Doing Business 2012 (World Bank Report) Study by World Bank ranked South Korea as 2nd highest in “Enforcing
Contracts”
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Effective Dispute ResolutionEffective Dispute Resolution
South Korea and Effective Commercial Dispute Resolution
Doing Business 2012 (World Bank Report)
Thank you!