Microsoft PowerPoint - Arbitration - Presentation_Seoul 14 Nov 2012_Web version [Read-Only]

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1 The Case for Asian Seats in International Arbitration? Past, Present and Future Seoul 14 th November 2012 An Overview of Maritime Arbitration Development in Singapore Introduction to SCMA Lee Wai Pong FSIArb, FCIArb, FICS, Master Mariner Executive Director, SCMA

2 Agenda Historical development Arbitration Statutes Types of arbitration Rules of Arbitration Legislative Framework Freedom of Contract Minimal Judicial Interference Geographical Location Infrastructure SCMA s Role in arbitration landscape

3 Historical Development 1985 City state of Singapore suffers its worst recession since independence in In response, Singapore Government established high level Economic Committee to review and restructure Singapore Economy Trade & Services sector identified as key driver for new economy Alternative Dispute Resolution key foundation to development of Trade & Services Sector

4 Arbitration Statutes Lex Arbitri

5 Arbitration Statutes Several statutes applicable to arbitration conducted in Singapore Important ones : International Arbitration Act, Cap 143A ( IAA ) Arbitration Act, Cap 10 ( AA )

6 Types of arbitration in Singapore Can be divided into: International Arbitration Domestic Arbitration Institutional Arbitration Ad hoc arbitration

7 Types of arbitration in Singapore International Arbitration An arbitration is international if At least one of the parties has its place of business in any State other than Singapore; or One of the following places is situated outside the State in which the parties have their places of business: The seat of arbitration Any place where a substantial part of the obligations of the commercial relationship is to be performed or the place with which the subject matter of the dispute is most closely connected; or

8 Types of arbitration in Singapore International Arbitration An arbitration is international if The parties have expressly agreed that the subjectmatter of the arbitration agreement relates to more than one country. It is governed by the IAA.

9 Types of arbitration in Singapore Domestic Arbitration One that is not international as stated earlier. It is governed by the AA. Institutional Arbitrations Administered by arbitral institutions eg SIAC, ICC or Administered by specialized trade bodies. Ad hoc Arbitrations Conducted independently of arbitral institutions like SIAC or ICC Normally not governed by institutional rules but by non institutional rules.

10 Rules of arbitration in Singapore Administered or Institutional Rules SIAC or ICC Non Administered or Non Institutional Rules Singapore Chamber of Maritime Arbitration Rules 2009 ( SCMA Rules ) UNCITRAL Rules of Arbitration 2010 ( UNCITRAL Rules ), for contracts entered into after 15th August 2010 No rules of arbitration can contradict provisions of applicable statute, whether AA or IAA. Such rules and such provisions must be interpreted so that they are consistent with whichever Act is applicable.

11 Legislative Framework in Singapore Singapore has adopted UNCITRAL MODEL ON INTERNATIONAL COMMERCIAL ARBITRAION ( Model Law ). Model Law constantly updated to include internationally accepted codes and rules for arbitration. Both IAA & AA based on Model Law

12 Legislative Framework in Singapore For the IAA, Model Law (ML) is reproduced as 1st Schedule. ML contains 33 Articles spread over 7 Chapters: Chapters I to VII. Chapter VIII no force of law in Singapore deals with recognition and enforcement of awards. Instead, 2nd Schedule deals with such recognition and enforcement. 2nd Schedule reproduces the New York Convention.

13 Legislative Framework in Singapore Body of the IAA consists of 43 sections introduced by the Singapore Parliament. The articles of the Model Law must be read in the light of any such section, if applicable to them. In other words, the articles of ML, as amended by the sections of the IAA, comprise the law that is applicable in Singapore to an international arbitration.

14 Legislative Framework Highlights Limited Appeal Under AA AA provides for appeals against arbitral awards on substantive disputes, although in certain limited circumstances only. No Appeal Under IAA IAA does not provide for any appeal against arbitral awards. Setting aside of arbitral awards A notable similarity between IAA & AA both provide for setting aside of arbitral awards.

15 Legislative Framework Highlights Arbitral tribunal may rule on its own jurisdiction Arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. NY Convention Since Singapore is a signatory to the NY Convention, Singapore arbitration awards may be enforced in more than 140 countries worldwide.

16 Legislative Framework Highlights Court Assistance High Court, or a judge thereof, is empowered to grant interim relief eg an injunction (save for security for costs and discovery which will be within the exclusive domain of the tribunal) Regardless of where the seat of the arbitration is, although applied in limited circumstances..

17 Freedom of Contract Singapore Judiciary Supportive of arbitration Strong emphasis on Party Autonomy Party choice of governing law Spore law is rooted in English law & both laws are readily accepted here Wide choice : Administered or Unadministered Arbitration Includes choice of preferred rules of arbitration SIAC Model Clause SCMA Model Clause

18 Freedom of Contract Singapore Courts have generally granted all applications to enforce awards. Parties are at liberty to adopt a governing law of their choice. Parties are at liberty to engage even foreign lawyers Foreign law firms permitted to engage in and advise on arbitration in Singapore. Many foreign law firms with presence in Singapore, including Qualifying Foreign Law Practices which can practice corporate and commercial law in Singapore.

19 Minimum Judicial Interference Policy of the judiciary is not to interfere with arbitral proceedings unless really necessary. It may be that indemnity costs may be made against those who attempt to derail the arbitration process with unmeritorious court applications. Singapore Courts have little tolerance for such tactics.

20 Geographical Location Shipping s centre of gravity continues to shift towards Asia Pacific as a general trend Allowed Singapore to develop & crystalize as an important regional mainstay for 1. Commerce 2. Finance & 3. Shipping

21 Geographical Location Many foreign companies have set up regional headquarters in Singapore Influx of foreign banks, public and private, to establish branches or subsidiaries in the city hubs. Geographical convenience of Singapore makes it the ideal seat of arbitration for contracting parties based in Asia Pacific

22 Geographical Location Many arbitrations in Singapore do not involve Singapore entities. This has enhanced perception of seat s neutrality Attractive for both for Asian and international commercial arbitration.

23 Infrastructure Hardware Local institutions like the SIAC & SCMA facilitate arbitrations in Singapore. Opening of Singapore s Maxwell Chambers in 2009 has facilitated the conduct of international arbitration World s first integrated dispute resolution centre

24 Infrastructure Facility comprises of 14 customdesigned and fully equipped hearing rooms and 12 preparation rooms. Mission is to provide one stop, best of class facilities and services for the conduct of Alternative Dispute Resolution activities

25 Infrastructure Heartware Singapore as a Seat of Arbitration Consistent Regional Leader in Asia 2010 Queen Mary (London based) International Arbitration Survey & 2007 ICC (Paris based) Report

26 Infrastructure Heartware Gateway to Asia / Strategic centre for maritime business Maritime ecosystem hosts > 5,000 companies Employs > 170,000 people Contributes about 7% to GDP Home >100 major international shipping groups

27 Infrastructure Heartware Diverse Activities cover 1. Ship Owning, chartering and broking 2. Ship Financing (eg banks, trusts) & Insurance 3. Hosting of international maritime organizations Baltic Exchange, BIMCO, Intertanko & ASF

28 Infrastructure Heartware As a Seat of Arbitration Government proactive with fiscal, legislative, judicial & infrastructural initiatives to support arbitration No restriction for foreign arbitrators/counsel to practise No work permits needed Witholding tax abolished for arbitrators Written & spoken English widely used

29 Infrastructure Heartware With a comprehensive arbitration eco system put in place in Singapore, top international arbitral institutions have opened up facilities in Singapore American Arbitration Association Permanent Court of Arbitration ICC s International Court of Arbitration Arbitration and Mediation Centre of the World Intellectual Property Organisation International Centre for the Settlement of Investment Disputes. The London Court of International Arbitration and other top arbitral institutions are also located at Maxwell Chambers.

30 SCMA s Role in arbitration landscape Creation of SCMA 1. Singapore signed NY 1958 Convention in SIAC formed in SCMA formed in Reconstituted in May Company limited by guarantee 6. Shareholders : MPA & SMF 7. Located in Maxwell Chambers

31 SCMA s Role in arbitration landscape 1. Promote Maritime Arbitration in Singapore holistically 2. Capitalize on Singapore s recognized & established advantages

32 SCMA s Role in arbitration landscape Providing the Model 1. Originally patterned after SIAC model of Administered Arbitration 2. Poor reception from maritime stakeholders 3. Accustomed to un administered model No Scale Fees & Award Scrutiny 4. Since May 2009, changed to Unadministered model comparable to LMAA

33 SCMA s Role in arbitration landscape Providing the Rules 1. Recognized & Well Accepted by Community 2. 3 rd Edition Review due end Chinese version available 4. Dynamic and responsive to shipping practices 5. Format is Simple & Uncluttered 6. Comparison with LMAA available

34 SCMA s Role in arbitration landscape Cementing the Foundation Strong Membership Base Corporate & Individual 2. Member Types Local and Overseas 3. Reflecting wide diversity of stakeholders from legal, maritime & academic communities

35 SCMA s Role in arbitration landscape Cementing the Foundation Membership Types Arbitrators Lawyers Ship Owners Ship Managers / Brokers Ship Charterers / Operators Shipyards & Repairers Cargo Interests P&I Clubs

36 SCMA s Role in arbitration landscape Promotion of SCMA Clauses Visibility and Usage 1. Model Clause 2. Model Bunker Clause Any and all disputes arising out of or in connection with this contract, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration in Singapore in accordance with the Arbitration Rules of the Singapore Chamber of Maritime Arbitration ( SCMA Rules ) for the time being in force at the commencement of the arbitration, which rules are deemed to be incorporated by reference in this clause.

37 SCMA s Role in arbitration landscape Promotion of SCMA Clauses Visibility and Usage 1. Model Clause 2. Model Bunker Clause Apart from that: Application in Contract Forms Application in Specific Maritime Disputes

38 SCMA s Role in arbitration landscape Singapore Ship Sale Form (SSF) 1. Brainchild of Singapore Maritime Foundation 2. Adoption by Asian Shipowners Forum (ASF)

39 SCMA s Role in arbitration landscape

40 SCMA s Role in arbitration landscape Bunker Dispute Resolution SS600 : Singapore Bunker Claims Procedure (SBC Terms) 2. Provisions for Expedited Arbitration 3. Provisions for Summary Awards

41 SCMA s Role in arbitration landscape Building up a Strong Panel of Arbitrators 1. > Demonstrated Expertise & Experience in Maritime Cases 3. Local and Overseas members 4. Rising numbers of LMAA Arbitrators applying

42 SCMA s Role in arbitration landscape Building SCMA s Up The Caseload Role in arbitration landscape since Jan in Total 57 since May Appointments: On the rise 5. Types: Diversification from shipping into commodities 6. Internationality: Many nonresident claimants / respondents

43 SCMA s Role in arbitration landscape SCMA s Role in arbitration landscape No Of Cases in 2009 SCMA CASE SUMMARY (Nov 2012) No Of Cases in 2010 No of Cases In 2011 No of Cases In 2012 Local (50%) Local (100%) International (100%) Remarks SUB-TOTAL / TOTAL 56

44 SCMA s Role in arbitration landscape SCMA s Building Up Role The Caseload in arbitration landscape Case values Variable but trend is rising Highest value dispute Oil& Gas Sector Estimated $240 mio

45 SCMA s Role in arbitration landscape

46 SCMA s Role in arbitration landscape SCMA s Role in arbitration landscape

47 SCMA s Role in arbitration landscape SCMA s Role in arbitration landscape Procedural Work representing only the tip of the iceberg in value chain Value added work remains elusive

48 SCMA s Role in arbitration landscape SCMA s Role in arbitration landscape Dispute resolution work originating from Asia Pacific is significant Bulk of value added DR work, eg arbitration still headed west Status quo will remain as long as there is no full time arbitration community in Asian cities

49 SCMA s Role in arbitration landscape SCMA s Role in arbitration landscape Chicken and egg situation needs to be addressed

50 SCMA s Role in arbitration landscape

51 SCMA s Role in arbitration landscape The Future of Asian Arbitration Development

52 SCMA s Role in arbitration landscape Lies in our hands

53 SCMA s Role in arbitration landscape SCMA s Role in arbitration landscape The End

54 The Case for Asian Seats in International Arbitration? Past, Present and Future Seoul 14 th November 2012 Paper 2

55 The Case for Asian Seats in International Arbitration Past, Present and Future The Importance of the Seat of Arbitration Benjamin Hughes Co-Chair, International Dispute Resolution Practice Group Shin & Kim

56 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration The Seat of Arbitration 1. What is the seat of arbitration? 2. Why is this significant? 3. How should one choose a seat? 56

57 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration Seat vs. Place Seat (place) of arbitration is the jurisdiction in which the arbitration legally takes place. Seat vs. Place Seat Venue, location or place of hearing 57

58 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration Designated in Arbitration Agreement SCMA and SIAC: shall be referred to and finally resolved by arbitration in Singapore HKIAC: shall be settled by arbitration in Hong Kong Seat = Place KCAB: The seat, or legal place of the arbitral proceedings shall be [Seoul, Korea]. (Similar to LCIA) More precisely, Seat = Legal Place 58

59 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration Arbitration Rules What if no seat chosen? SIAC, Art. 18: parties may agree on the seat; failing such agreement, Singapore unless the tribunal determines another seat more appropriate KCAB, Art. 18: in absence of agreement by parties, Seoul HKIAC, Art. 15: Hong Kong, unless the parties have expressly agreed otherwise SCMA: Art. 22: unless otherwise agreed by parties, Singapore; regardless of legal seat, all physical hearings and meetings to be held in Singapore, unless the parties agree otherwise 59

60 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration Importance of Seat Seat of the arbitration determines the law under which the arbitration will be conducted. Lex Arbitri = Law of the Arbitration If arbitration is seated in Seoul, then Korean law is the lex arbitri. Korean Arbitration Act (but also other acts, case law, etc) Seat does not change if hearings or meetings are held elsewhere for convenience. Agreement of parties is required to change the seat. 60

61 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration Lex Arbitri Lex Arbitri vs. Arbitral Procedural Law Terms often used (and meant) interchangeably; rarely separated Theoretically possible to designate separate seat and procedural law, but highly problematic and should be avoided. Largely an academic issue 61

62 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration Lex Arbitri Lex Arbitri provides mandatory rules (equal treatment of parties, due process, independence of arbitrators) and default, fall-back procedural rules (appointment of arbitrators). Overlap between the law and the rules: which prevails? Procedural rules: rules trump law (law usually contains unless the parties agree otherwise ) Mandatory law: law trumps rules (law usually contains unqualified shall ) 62

63 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration Nationality of Award Seat determines nationality of award. Arbitration between Korean and German parties seated in Singapore with Swiss arbitrator Recognition and Enforcement: New York Convention 63

64 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration How to Choose the Seat 1. New York Convention 2. Favorable Arbitration Laws (UNCITRAL Model Law jurisdictions include Singapore, Hong Kong, Korea) 3. Judicial Support/Interference and Quality/Efficiency 4. Geographical Convenience and Infrastructure (airport, hotels, venue) 5. Neutrality? 64

65 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration Maritime Seat: London? Maritime arbitrations traditionally held in London For Asian parties: (+) NYC, neutral, experience in maritime, UK substantive law, efficient courts (-) Far, expensive, not a Model Law jurisdiction 65

66 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration Why not Asia? Singapore (+) NYC, neutral, experience in maritime, common law, efficient courts More (+) Geographically convenient, economical, Model Law, SCMA Hong Kong: similar (Korea: many of the same advantages, but civil law jurisdiction, less maritime experience, and language barrier issue) 66

67 The Importance The Importance of the Seat of the Arbitration Seat of Arbitration Closing Remarks Seat is chosen by party agreement, usually during contract negotiations Changing the seat: practical concerns and pitfalls Trade-off in negotiations with substantive governing law of contract Commercial vs. Maritime: substantive law issues Arbitration is like a dinner party 67

68 감사합니다 For inquiries, please contact 8th Floor, State Tower Namsan, 100 Toegye-ro, Jung-gu, Seoul , Korea TEL: (+82 2) FAX: (+82 2) THE INFORMATION PROVIDED IN THESE PRESENTATION MATERIALS AND THE ACCOMPANYING PRESENTATION IS GENERAL IN NATURE AND PROVIDED FOR DISCUSSION PURPOSES ONLY. THE PRESENTATION AND MATERIALS DO NOT CONSTITUTE LEGAL ADVICE. ANY OPINIONS EXPRESSED BY THE SPEAKERS ARE THE PERSONAL VIEWS OF THE SPEAKERS AND DO NOT REPRESENT A FORMAL OPINION OF SHIN & KIM

69 The Case for Asian Seats in International Arbitration? Past, Present and Future Seoul 14 th November 2012 Paper 3

70 [ ] 한국해사중재활용현황과활성화방안 (II) Frequency of Engagement of Korean maritime arbitration and How to increase it Captain In Hyeon, Kim Korea University School of Law captainihkim@korea.ac.kr 70

71 목차 I. 서론 Introduction II. 한국해사법정의활용현황 Frequency of use of Korean maritime jurisdiction III. 비사용의이유 The reason of its unpopularity IV. 활용방안 How to increase the use of Korean maritime jurisdiction/arbitration V. 결론 Conclusion 71

72 I. 서론 Introduction 1. 해운조선산업 / 무역규모의위상 Korea business situation 해운5-6위 5th ranked Shipping Business 조선 1위 1st ranked shipbuilding business 무역규모 10-11위 11 th ranked Trading volume 2. 이를뒷받침하는해상법의활용과국제적인순위는? How frequently Korean jurisdiction engaged? Very poor condition 3. 해사법정활성화의밤개최 ( ) Promotion seminar held by KMLA + KPI on Nov.28,

73 II. 한국해사법정의활용현황 1. 한국준거법의활용 당사자자치의원칙 (1) 나용선계약, 정기용선계약, 항해용선계약 압도적영국준거법사용 (2) COA 계약 압도적으로영국준거법 (3) 정기선운항 = 개품운송 한국준거법 73

74 II. 한국해사법정의활용현황 (4) 선박건조계약 한국선박회사 ( 발주자 )- 한국조선소 : 영국준거법 새로운움직임 : 선박건조법연구회결성, 필요성고취 (5) 해상보험 적하보험 : 영국준거법이절대적으로사용됨 선박보험 : 일부선박보험에서는한국준거법의사용이나타남 - 한국해운조합의선박보험인수 선주상호보험조합 ; KOREA P&I, 해운조합 선박건조보험에서변화보임 : 삼성화재등 74

75 2. 한국법정및중재의활용 (1) 나용선계약, 정기용선계약, 항해용선계약 용대선분쟁소송 / 중재현황 구분 A 선박회사 B 선박회사 C 선박회사소계 해외국내해외국내해외국내해외국내소계 (20) (2) (40) (1) 계

76 2. 한국법정및중재의활용 (3) 개품운송계약 한국법원 - 피고의주소지원칙 전속적합의관할 (Exclusive Jurisdiction Clause) 구분 A 선박회사 B 선박회사 C 선박회사소계 해외국내해외국내해외국내해외국내소계 (26) (2) (40) (1) 계

77 2. 한국법정및중재의활용 (4) 선박건조계약 영국해사중재, 절대적 새로운움직임 : 선박건조법연구회활동 (5) 해상보험 상당수, 한국법정 - 피고가한국보험자인경우, 한국법원재판관할 - 보험금지급채무가없다는확인을구하는확인의소 - 가해선박의보험자에게직접청구권을근거로소를제기하는경우 - 운송인에게청구권을대위하여행사하는경우 새로운변화 해운조합의약관 (6) 선박충돌, 유류오염등 불법행위-> 한국의재판관할인정 상당수, 한국법정 (7) 선원관련 한국법정 77

78 3. 한국해사중재의활용현황 (1) 해사중재 (maritime Arbitration) 영국, 미국, 싱가폴, 중국, 일본과다름. - 독립적해사중재없음 (No special Arbitration Institutional Board) 대한상사중재원에서해사중재를겸함.(As a part of KCAB ) - 19 건, 2011 (19 cases, 2011) 사중재가능 (Ad hoc Arbitration possible) 대한상사중재원이처리한해상사건의수 전체 건수 처리 320 건 262 건 318 건 316 건 323 건 251 건 해상사건 11 건 (3%) 16 건 (6%) 28 건 (8%) 19 건 (6%) 19 건 (6%) 9 건 (3%) 78

79 III. 한국법정비사용의이유 1. 한국법을준거법으로하지못하는이유는무엇인지 ( 화주 ) 영국법은해운업과동반발전, 전세계적으로판결을인정받음 영국법에의한판례다수존재하며, 분쟁별참조가능 정형화된해운계약서, 영국법을준거법, 일반적인룰로인정, 경우에따라영국법을준거법으로하지않는경우계약체결불가 상대편계약당사자의한국법준거법거부 한국업계종사자의해운업에대한실무적경험또는이해부족 79

80 IV. 활용대책방안 1. 대형화주들의운송계약체결상대방과분쟁해결절차 외국선사와체결하는경우 - 甲의입장에서한국준거법과한국중재를 한국선사와체결하는경우 - 한국준거법과한국중재 - 한국해법학회표준계약서식활용 2. 선박회사사이의용선계약 선박소유자-다음용선자사이 ( 모두한국회사의경우 ) 의가능성 3. 조선회사와우리나라선박회사사이의선박건조계약 중국의경우의예 금융사와의협력하에한국준거법 / 한국법정사용을하나의조건으로 80

81 IV. 활용대책방안 4. 우리나라선박회사와보험자사이의선박보험계약 선체 / 적하보험의경우 -준거법은영국법이지만, 관할은피고의주소지인한국가능 - 재보험->Korean Re등을재보험자로하면? - 일본의도쿄마린의예-자체재보험가능, 일본준거법 외국재보험이필요하지않은경우- 적극적으로한국준거법 상법보험편의해상보험규정을현대화하고 - 한국형표준선박보험증권및약관을만들어야함. 5. 우리나라한국준거법선박회사의, 한국관할의 P&I 확대가입계 한국 P&I 성장의필요성 81

82 IV. 활용대책방안 6. 해사중재, 판례집발간, 해상변호사, 해상법교수배출등인프라구 축 해사중재의발전노력 -일본海運集會所의예, SCMA의예 우리나라 / 외국해상판례의신속하고체계적소개 - 일본의海事法硏究會誌의예 해상변호사와해상법교수의꾸준한배출 - 도선사협회의해상법인력에대한지원의예 장기과제로인식하여지속적개선노력필요 -가칭한국해사법정활성화추진위원회 - 블루오션으로이해하는사고의전환필요 - 해외해사중재의벤치마킹 82

83 IV. 활용대책방안 7. 해사중재의발전방안 How to develope 조직의문제, 독립기구로할것인가? Governance, whether independent institute is required? -SCMA의예, SIAC의분과에서독립 Example of SCMA which became independent from a special division of SIAC - 조건 : 영국해사중재및 SCMA와경쟁가능체제이어야함 Requirement: attractive enough to compete LMAA SCMA - 대한상사중재원에특별부서를두면서별도의중재규칙을두는방안 As a compromise, start from special division of KCAB 83

84 IV. 활용대책방안 7. 해사중재의발전방안 How to develop 전문국제해사중재인의배출 To raise special international maritime arbitrators in Korea -해사중재만전업으로하는전문중재인필요 who works only for maritime arbitration -SCMA에한국전문가가해사중재인으로등재되도록하는방안 They to be listed as an accredited maritime arbitrators in SCMA - SCMA의한국사건에이들이중재인으로지명될것임 They designated as an arbitrator in a Korea related case in SCMA - 이들이우리나라해사중재에서중재인으로활동가능함 They designated as an arbitrator in a foreign related cases in the future Korea Chamber of Maritime Arbitration 84

85 V. 결론 Conclusion 1. 외국준거법 / 관할의지속적이고절대적인우위 Deep-rooted Prevalence of foreign governing law /jurisdiction over Korea 구조적인문제 ( 그러나, 일본, 노르웨이의노력 ) Structural problem :Japanese/Norwegian case 영국준거법 / 영국법정 / 영국해사중재의우수성 Owing to Effectiveness of English law/courts/lmaa 상대방이외국인경우중립성 Owing to Need for Neutrality involved in foreign factors 2. 한국해사법정의발전-> 업계의법률비용의절감 Development of Korean maritime jurisdiction (high frequency of selection of Korean law and arbitration] lead to cost reduction of shipping Industry 85

86 V. 결론 Conclusion 3. 해결책 Solution 한국이해관계만있는경우는한국준거법 / 한국중재-선박건조계약가능성 As a first step, Use of Korean governing law/maritime Arbitration - High possibility in Ship building contract 매력적인해사중제제도의도입, 해상법 / 변호사 / 중재인의양산 Setup of attractive Korean Chamber of maritime Arbitration. Raising maritime law specialists (arbitrators) 신속한외국 / 한국판례, 입법동향소개및회람제도 Quick circulation of foreign/korean cases, new development of laws 한국형해사표준계약서의활용 ( 배포중 ) 및개발 Promotion of frequent use Korean standard maritime contract form 업계의재정적지원, 추진위원회설립및지속적감시독려 Support of government/industry, Setup of Promotion committee with long term based monitoring and promotion effort required 86

87 The Case for Asian Seats in International Arbitration? Past, Present and Future Seoul 14 th November 2012 Paper 4

88 Best Practices in International Commercial Arbitration: An In House Counsel Perspective Jun Hee Kim Hyundai Heavy Industries SCMA Conference, Seoul November 14,

89 Overview 1. How Arbitration Clauses are Determined 2. Process of Selecting Arbitration Counsel 3. Arbitrator Selection 4. Arbitration Proceedings 5. Achieving Best Practices and Predictability 6. Q&A 89

90 1. Arbitration Clauses Use of Standard Arbitration Clauses Negotiating Arbitration Clauses A. Arbitral Institution and Rules B. Arbitrator Appointment Procedure C. Seat D. Language 90

91 2. Selection and Working with Counsel Cost vs. Quality Use of Law Firm Rankings International or Regional Firm Building Long Term Relationships Use of Korea based firms Working with Outside Counsel 91

92 3. Arbitrator Selection Reliance on Outside Counsel Nationality, Impartiality and Conflicts Experience Dynamics with other Tribunal Members Input by In House Counsel Case Specific Considerations Cultural Considerations 92

93 4. Arbitration Proceedings Early Case Management Hearing Provisional Timetable Specific Procedural Rules Sequence and Number of Submissions Document Production Submission of Evidence 93

94 5. Achieving Predictability Role of Arbitration Institution Role of Arbitration Counsel Role of In House Counsel 94

95 Q&A 95

96 The Case for Asian Seats in International Arbitration? Past, Present and Future Seoul 14 th November 2012 Paper 5

97 Charterparties and Arbitration Shim, Shang Doe Divisional Claims Director SCMA Conference, Seoul 14 November 2012

98 Summary Arbitration clauses on charterparties Choice of arbitration Merits and demerits of arbitration Conclusion 98

99 Arbitration clauses on charterparties NYPE 1946 (Clause 17) ~ the matter shall be referred three persons at New York,.. their decision. shall be final, NYPE 1993 (Clause 45) (a) shall be arbitrated at New York subject to U.S. Law (b) shall be arbitrated at London governed by English law 99

100 Arbitration clauses on charterparties BALTIME 1939 as revised 2001 (Clause 22) (a) English law to arbitration in London. in accordance with LMAA Terms (b) by the Maritime Law of the U.S at New York.. In accordance with the rule of the SMA SHELLTIME 4 as amended 2003 (Clause 46) (a) in accordance with the laws of England (b) Any dispute shall be referred to Arbitration in London 100

101 Arbitration clauses on charterparties GENCON 1994 (Clause 19) (a) English law to arbitration in London in accordance with the Arbitration Acts (b) the United States Code and Maritime Law of the U.S at New York.. In accordance with the rule of the SMA ASBATANKVOY (Clause 24) arbitration in the City of New York or in the City of London 101

102 Choice of arbitrations location Korea, Singapore, Hong Kong, London or New York appropriate legal system : civil law vs. common law reputation competent arbitration professionals neutrality 102

103 Merits and demerits of arbitration merits (& demerits) freedom of choice of arbitrators flexibility in proceedings confidentiality of proceedings/award 103

104 Merits and demerits of arbitration merits (& demerits) no challenging the award cost effectiveness international enforceability 104

105 Contact T: E: 105

106 The Case for Asian Seats in International Arbitration? Past, Present and Future Seoul 14 th November 2012 Paper 6

107 Privileged and Confidential Limitation of Liability Issues under the SAJ Shipbuilding Contract 변호사윤병철, 이철원, 이주용 ( 김. 장법률사무소

108 Issues and Challenges for Builder SAJ Form is mostly used standard shipbuilding contract in the industry. English law is selected as governing law. Article 9. Liability of Builder after Delivery Builder shall remedy defects discovered within 1 year from the date of delivery at its own cost Builder shall not be responsible for any consequential or special losses The guarantee in the Article replaces and excludes any other liability Article 10. Liability of Builder in Case the Buyer Rescinds Shipbuilding Contract for Delayed Delivery Builder should refund advance payments Upon refund by Builder, all liabilities of Builder shall be discharged How to construct the exclusion clauses in the context of the English court rulings narrowly interpreting the exclusion? Privileged and Confidential

109 Case 1: Scope of Liability of Builder after Delivery SAJ Standard Form Shipbuilding Contract Article 9.4.a. [T]he BUILDER shall [not] in any circumstances be responsible or liable for any consequential or special losses, damages or expenses including, but not limited to, loss of time, loss of profit or earning or demurrage directly or indirectly occasioned to the BUYER by reason of the defects. Buyer 는선박을인도받은후하자발견하였고, 이를 Builder 가수리하는데 6 개월이소요. 발주자는 6 개월기간동안의 loss of earning ( 일실수익 ) 에대한손해배상을조선소에청구 Privileged and Confidential

110 Different Views Builde r 일실수익손해배상청구는면책조항에서명백히규정한 any consequential or special losses, damages or expenses including, but not limited to, loss of time, loss of profit or earning or demurrage directly or indirectly occasioned to the BUYER by reason of the defects 에해당하므로면책. Buyer 영국법상일실수익손해는통상손해 (general damage) 와특별손해 (special damage) 로나눌수있는데, 위면책조항은결과적손해나특별손해에해당하는일실수익손해부분만을면책하는것이고, 통상적인일실수익손해에대하여는여전히조선소가책임져야. Privileged and Confidential

111 Damages and Losses under English Law 1 General Damage, Special Damage Hadley v. Baxendale 사건 한국민법 393 조와동일 General Damage ( 통상손해 ) Special Damage ( 특별손해 ) 2 Normal Loss, Consequential Loss Normal Loss : 유사한상황에서청구인이입게되는일반적인손해, 통상채권자가계약이제대로이행되었을때향유할수있었던급부의시장가치와계약이제대로이행되지않은상태에서수령한급부의시장가치와의차액 Consequential Loss : 특정한청구인이처하게된특별한상황에기초하여입게되는손해 Normal Loss 를제외한다른손해 ( 영업수익의상실또는계약위반으로인하여소요된비용등 ) Privileged and Confidential

112 Interpretation of Exclusion Clause in SAJ Shipbuilding Contract 1 통상손해인일실수익에대한청구가가능하다는견해 영국법원은 consequential loss 에대한면책조항을해석함에있어서 Hadley v. Baxendale 사건의 special damage 의경우로한정하여면책되는것으로엄격한해석을하는다수의판례생산. 2 통상손해, 특별손해관계없이일실수익청구는모두면책된다는견해 영국법상일실수익은통상적으로 consequential loss에해당함. time, profit, earning or demurrage 는 consequential or special losses 의계약상정의조항에명백히포함되므로그와관련된책임은면제된다고볼수있음. directly or indirectly 라는문구의사용에비추어 consequential damage 의의미가통상적인영국법의 Hadley v Baxendale 에서말하는특별손해와는다른의미를부여한것이라고볼수있음. Privileged and Confidential

113 Case 2: Termination based on Delay of Delivery and its Effect under the SAJ Shipbuilding Contract 가 제 3 조제 1 항제 c 호 인도예정일로부터 210일이내에선박을인도하지못한경우발주자에게약정해지권을부여 나 다 제 10 조제 2 항 제 10 조제 3 항 [T]he BUILDER shall promptly refund to the BUYER the full amount of all sums paid by the BUYER to the BUILDER on account of the VESSEL Upon such refund by the BUILDER to the BUYER, all obligations, duties and liabilities of each of the parties hereto to the other under this Contract shall be forthwith completely discharged. Privileged and Confidential

114 Case 2: Scope of Liability of Builder when Terminated for Delay 조선소는제 2 차선급금을지불받은후심각한경영난에봉착하여더이상공사를진행할수없었음 주문된사양의선박에관하여계약당시를기준으로시장가격이계속적으로상승발주자는인도예정일로부터 210일이경과한후계약을제10조에따라해지 발주자는 Refund Guarantee 발행금융기관으로부터기지급한선급금들을반환받음. 발주자는조선소를상대로 common law 상 repudiatory breach 를이유로당초인도예정일에서의주문된사양의선박의시장가액과약정된선박건조대금의차액을손해배상으로청구 Privileged and Confidential

115 Issues 1 발주자가제10조에따른약정해지권을행사하고도, common law상 repudiatory breach에따른손해배상청구권을행사할수있는지 2 이에대해, 조선소는가사 repudiatory breach에따른손해배상채무를부담한다고하더라도이는제10조제3항에따라면책된것이다라고주장할수있는지 Privileged and Confidential

116 English Cases Repudiatory Breach? Stocznia Gdynia SA v Gearbulk Holdings Ltd.! 법원의판단 발주자가제10조에따른약정해지권을행사하였다는것은 common law상 repudiatory breach에따른법정해지권을행사한것으로도볼수있다 손해배상의예정을제외하고는발주자는다른손해배상청구권을가지지못한다 는문구에도불구하고발주자는 common law상 repudiatory breach에따른일반적인손해배상청구가능 Privileged and Confidential

117 Scope of Exclusion of Builder s Liability under the SAJ Shipbuilding Contract Stocznia Gdynia SA v Gearbulk Holdings Ltd. 사건이전에는 SAJ 표준계약에있어서인도지연을이유로하여발주자가 common law에따라 repudiatory breach 를주장하고계약해지및손해배상청구를할수없다고보았음 Stocznia Gdynia SA v Gearbulk Holdings Ltd. 사건의예에비추어 210일이상의인도지연이문제되는경우발주자에게 common law에따른일반적인 repudiatory breach 에기한손해배상청구가가능하다고볼것으로예상됨. 제 10 조제 3 항의면책범위도엄격하게제한적으로해석될여지가높음 Privileged and Confidential

118 Conclusion Under English law, it is presumed that neither party intends to abandon any remedies for its breach arising by operation of law, and clear express words must be used in order to rebut this presumption Considering the above attitude of English law, exclusion clauses under Articles 9 and 10 of SAJ Form can be construed narrowly. Parties may consider further express exclusion clause in order to avoid future disputes. Privileged and Confidential

119 윤병철변호사 학력 제 26 회사법시험합격 (1984) 서울대학교법과대학 ( 법학사, 1985) 대법원사법연수원 (16 기, 1987) 서울대학교법과대학 ( 법학석사, 1993) Harvard Law School (LL.M., 1995) Tel: bcyoon@kimchang.com 경력 육군법무관 ( ) 서울지방법원남부지원판사 ( ) 서울형사지방법원판사 ( ) 김 장법률사무소 (1992-현재) Davis Polk & Wardwell, 홍콩및뉴욕사무소 ( ) 기획재정부국제계약분쟁조정위원회위원 (1996-현재) 대한상사중재원중재인 (2003-현재 ) 사단법인국제중재실무회부회장 (2006-현재 ) ICC 한국위원회국제중재분과위원회상임위원 (2007- 현재 ) 싱가포르국제중재원 (SIAC) 이사및중재인 (2009-현재) 세계은행국제투자분쟁해결센터 (ICSID) 중재인 (2009-현재) 미국국제중재센터 (ICDR) 중립중재인 (2010-현재) 중국국제상회중재원 (CIETAC) 중재인 (2011-현재) 사단법인대한중재인협회부회장 (2011-현재) 법무부국제법무자문위원 (2011- 현재 ) Privileged and and Confidential

120 이철원변호사 학력 서울대학교법과대학 ( 법학사, 1997) 제38회사법시험합격 (1997) 대법원사법연수원 (28기, 1999) 서울대학교법과대학원 ( 법학석사, 2006) University College London (LL.M., 2011) Tel: cwlee@kimchang.com 경력 공군법무관 ( ) 서울중앙지방법원판사 ( ) 서울남부지방법원판사 ( ) 김 장법률사무소 (2006-현재) Holman Fenwick Willan, London Office (2011) Addleshaw Goddard, London Office ( 자격취득 변호사, 대한민국 (1999); 영국 (2012) 논문및저서 집합채권양도담보와도산법상부인권 ( 서울대학교대학원법학석사학위논문, ) Privileged and and Confidential

121 John RHIE What the press say Ranked Individual - Dispute Resolution: International Arbitration "John Rhie has grown from a very experienced and highly respected associate to a superlative partner in an extremely short space of time. "excellent assimilation and detailed analysis of the facts. - Chambers Asia, 2012 Leading Practitioner - International Arbitration (South Korea) - Who's Who Legal, 2012 Tel: john.rhie@kimchang.com Youngest member of the "45 Under 45" leading figures in international arbitration - Global Arbitration Review, 2011 Chosen as one of the "Hot 100" figures in the Asian legal industry "one of the firm's most sought-after international arbitration lawyers. - Asian Legal Business, 2011 Ranked Individual - Arbitration (International) Clients appreciate his "excellent broad-based litigation and international experience. - Chambers Asia, 2011 Ranked Individual - Dispute Resolution (South Korea) "A logical and well-organised advocate with the energy and drive to develop the firm's practice. -Chambers Global, 2011 Privileged and and Confidential Leading individual - Dispute Resolution (South Korea) - Asia Pacific Legal 500, 2011

122 John RHIE Tel: 학력 경력 St Catherine's College, Oxford University (B.A., 1998, M.A.(Oxon), 2004) College of Law, London (CPE and LPC, 2000) School of International Arbitration, London University (PDip., 2008) Herbert Smith, London and Hong Kong, Trainee ( ) Herbert Smith, London, Associate ( ) McDermott Will & Emery, London and New York, Senior Associate ( ) Kim & Chang (2010-Present) 자격취득 Admitted as Solicitor, England & Wales, 2003; Admitted as Solicitor-Advocate, England & Wales, 2005 Privileged and and Confidential

123 The Case for Asian Seats in International Arbitration? Past, Present and Future Seoul 14 th November 2012 Panel Discussion

124 The Case for Asian Seats in International Arbitration? Past, Present and Future Seoul 14 th November 2012 Closing Remarks Lee Wai Pong FISarb, FCIArb, FICS, Master Mariner Executive Director, SCMA