The respected Comrade
"Only when we are effective in interpreting and applying the laws, can we execute them in a unified and fair way across the country. In interpreting and applying the socialist laws, we should hold fast to the Party-based, working-class and state-based stand, strictness and fairness."
Today, the Democratic People's Republic of Korea ensures that the strictness and impartiality should be thoroughly observed in interpreting and applying the law. The Republic legally regulates that impartiality should be ensured even in settling the disputes arising in the transaction of foreign economy with the other countries.
"Arbitration Act of the Democratic People's Republic of Korea" adopted on July 21, Juche 88(1999) and amended and supplemented on August 22, Juche 109(2020) regulates that it is an important principle to guarantee objectivity, impartiality and quickness and to impose the responsibility on a concerned party.
Ensuring impartiality of arbitral tribunal poses itself as an important issue in strictly observing the principle requirements formulated by the country while settling the dispute in foreign economy. It is because arbitral tribunal, the group of arbitrators consisting of single arbitrator or three arbitrators in charge of disposing and settling the dispute incident of foreign economy, plays a decisive role in the settlement of the dispute.
Therefore, "Arbitration Act of the Democratic People's Republic of Korea" clearly regulates that impartiality should be ensured in forming arbitral tribunal and processing the arbitrary procedure, etc.
First, there is a regulation on ensuring impartiality in forming arbitral tribunal.
Generally, concerned parties are likely to entrust the selection of arbitrator to arbitration committee as they are unaware of ability and qualification of the arbitrator.
One of important criteria in selecting arbitrator is not only his ability and qualification but also his noble traits to settle a dispute in a fair and independent way without any prejudice. In other words, an arbitrator should acquire professional knowledge for and sufficient experience of legislation, trade, investment, finance, transportation and other international economic transactions, while his arbitrament should be trusted by the parties concerned without a trifle doubt.
A fair and independent arbitrator should be selected when arbitration committee chooses arbitrator as required by concerned parties. In this case, the governing law, requirement of concerned parties, qualification of arbitrator, arbitration place, arbitration language, nationality of the concerned parties and others should be taken into account.
Second, there is a regulation to exclude arbitrator who fails to ensure impartiality.
The man selected as arbitrator should notify arbitration committee and concerned parties of every reason, for any suspicion of his impartiality and independence from his selection to the settlement of a case.
Generally accepted criteria to judge impartiality of arbitrator includes his economic relation, professional relations, and acquaintance relation with concerned party, relation with arbitration partner, and nationality of the arbitrator, etc.
The D.P.R.K. asks a concerned arbitrator to submit written guarantee to confirm that he secures impartiality and independence prior to the arbitration trial, thus ensuring impartiality in the settlement of dispute of foreign economy.
The arbitrator whose impartiality is likely to be suspected or who is considered an ineligible arbitrator could be excluded.
The concerned parties can negotiate on the procedure of exclusion of arbitrator; if there is no negotiation between the concerned parties, any party who is going to exclude the arbitrator should submit application document for exclusion of arbitrator that sends forward the reasons concerned to arbitral tribunal within 10 days from the day when he has known the reason of exclusion of arbitrator. In such a case that the arbitrator who received the application document for exclusion does not resign his post or the other party does not agree upon application for exclusion, arbitral tribunal should adopt the decision to approve or reject the application for exclusion.
In such a case that the arbitrator is not excluded on the exclusion procedure which the concerned parties agreed upon or on the resolution of arbitral tribunal, the applicant for exclusion may submit the application for exclusion again to the arbitration committee within 15 days from the day when he receives the notice of refusal of application for exclusion from arbitral tribunal.
Third, there is a regulation for arbitral tribunal to ensure impartiality in carrying out arbitration procedure.
It is a principle that arbitration procedure should be established on the agreement of both parties concerned; and it should be progressed on the arbitration regulation of arbitration committee concerned in such a case that there is no agreement between the concerned parties.
First of all, the arbitration procedure should be progressed in such a way that the arbitral tribunal treats the concerned parties equally and provides them enough opportunities to give their opinions.
The concerned parties have equal position in treatment and settlement of disputes and have the right to state their own assertion sufficiently.
Therefore arbitral tribunal should respect the agreement of concerned parties on the arbitration procedures and treat the concerned parties equally during the whole process of arbitration procedures. In particular, in the arbitration examination to prove whether it is true or not, arbitral tribunal should enable the concerned parties to state their opinion sufficiently and give necessary evidences.
Besides, arbitral tribunal should run arbitration procedure in a fair and efficient way.
Arbitral tribunal has the right to decide on the existence and effect of arbitration agreement, adoption, validity and connection of evidence given in relation to settlement of dispute, arbitration jurisdiction; and, if necessary, the tribunal can decide on temporary measures such as the measure for property preservation, procedure discontinuance and can meet witness or appraiser to corroborate the fact and investigate property or document, etc.
As arbitral tribunal plays a decisive role in the progress of arbitration procedure, it is important to thoroughly ensure not only promptness but also impartiality in the progress of arbitration procedure.
If arbitral tribunal does not send a proper notice for arbitration procedure to the concerned parties or proceeds the arbitration procedure contrary to the law and passes judgment, any concerned party that disagrees with that judgment can appeal annulment of the judgment to the court.
In addition to this, the DPR Korea. perfectly ensures the independence of arbitration tribunal in the treatment and settlement of dispute to settle foreign economic dispute in a fair manner by thoroughly ensuring the independence of arbitration tribunal in the treatment and settlement of foreign economic arbitration case and by severely regulating not to interfere in treatment and settlement of arbitration case excepting the case stipulated by the law.
Like this, the DPR Korea. clearly and legislatively affirms in such a way that impartiality of arbitral tribunal is thoroughly ensured.
arbitral tribunal, impartialityLegal Requirement for Ensuring Impartiality of Arbitral Tribunal
in Arbitration of Foreign Economy
Dr. Kim Un Nam, Faculty of Law,
The respected Comrade
"Only when we are effective in interpreting and applying the laws, can we execute them in a unified and fair way across the country. In interpreting and applying the socialist laws, we should hold fast to the Party-based, working-class and state-based stand, strictness and fairness."
Today, the Democratic People's Republic of Korea ensures that the strictness and impartiality should be thoroughly observed in interpreting and applying the law. The Republic legally regulates that impartiality should be ensured even in settling the disputes arising in the transaction of foreign economy with the other countries.
"Arbitration Act of the Democratic People's Republic of Korea" adopted on July 21, Juche 88(1999) and amended and supplemented on August 22, Juche 109(2020) regulates that it is an important principle to guarantee objectivity, impartiality and quickness and to impose the responsibility on a concerned party.
Ensuring impartiality of arbitral tribunal poses itself as an important issue in strictly observing the principle requirements formulated by the country while settling the dispute in foreign economy. It is because arbitral tribunal, the group of arbitrators consisting of single arbitrator or three arbitrators in charge of disposing and settling the dispute incident of foreign economy, plays a decisive role in the settlement of the dispute.
Therefore, "Arbitration Act of the Democratic People's Republic of Korea" clearly regulates that impartiality should be ensured in forming arbitral tribunal and processing the arbitrary procedure, etc.
First, there is a regulation on ensuring impartiality in forming arbitral tribunal.
Generally, concerned parties are likely to entrust the selection of arbitrator to arbitration committee as they are unaware of ability and qualification of the arbitrator.
One of important criteria in selecting arbitrator is not only his ability and qualification but also his noble traits to settle a dispute in a fair and independent way without any prejudice. In other words, an arbitrator should acquire professional knowledge for and sufficient experience of legislation, trade, investment, finance, transportation and other international economic transactions, while his arbitrament should be trusted by the parties concerned without a trifle doubt.
A fair and independent arbitrator should be selected when arbitration committee chooses arbitrator as required by concerned parties. In this case, the governing law, requirement of concerned parties, qualification of arbitrator, arbitration place, arbitration language, nationality of the concerned parties and others should be taken into account.
Second, there is a regulation to exclude arbitrator who fails to ensure impartiality.
The man selected as arbitrator should notify arbitration committee and concerned parties of every reason, for any suspicion of his impartiality and independence from his selection to the settlement of a case.
Generally accepted criteria to judge impartiality of arbitrator includes his economic relation, professional relations, and acquaintance relation with concerned party, relation with arbitration partner, and nationality of the arbitrator, etc.
The D.P.R.K. asks a concerned arbitrator to submit written guarantee to confirm that he secures impartiality and independence prior to the arbitration trial, thus ensuring impartiality in the settlement of dispute of foreign economy.
The arbitrator whose impartiality is likely to be suspected or who is considered an ineligible arbitrator could be excluded.
The concerned parties can negotiate on the procedure of exclusion of arbitrator; if there is no negotiation between the concerned parties, any party who is going to exclude the arbitrator should submit application document for exclusion of arbitrator that sends forward the reasons concerned to arbitral tribunal within 10 days from the day when he has known the reason of exclusion of arbitrator. In such a case that the arbitrator who received the application document for exclusion does not resign his post or the other party does not agree upon application for exclusion, arbitral tribunal should adopt the decision to approve or reject the application for exclusion.
In such a case that the arbitrator is not excluded on the exclusion procedure which the concerned parties agreed upon or on the resolution of arbitral tribunal, the applicant for exclusion may submit the application for exclusion again to the arbitration committee within 15 days from the day when he receives the notice of refusal of application for exclusion from arbitral tribunal.
Third, there is a regulation for arbitral tribunal to ensure impartiality in carrying out arbitration procedure.
It is a principle that arbitration procedure should be established on the agreement of both parties concerned; and it should be progressed on the arbitration regulation of arbitration committee concerned in such a case that there is no agreement between the concerned parties.
First of all, the arbitration procedure should be progressed in such a way that the arbitral tribunal treats the concerned parties equally and provides them enough opportunities to give their opinions.
The concerned parties have equal position in treatment and settlement of disputes and have the right to state their own assertion sufficiently.
Therefore arbitral tribunal should respect the agreement of concerned parties on the arbitration procedures and treat the concerned parties equally during the whole process of arbitration procedures. In particular, in the arbitration examination to prove whether it is true or not, arbitral tribunal should enable the concerned parties to state their opinion sufficiently and give necessary evidences.
Besides, arbitral tribunal should run arbitration procedure in a fair and efficient way.
Arbitral tribunal has the right to decide on the existence and effect of arbitration agreement, adoption, validity and connection of evidence given in relation to settlement of dispute, arbitration jurisdiction; and, if necessary, the tribunal can decide on temporary measures such as the measure for property preservation, procedure discontinuance and can meet witness or appraiser to corroborate the fact and investigate property or document, etc.
As arbitral tribunal plays a decisive role in the progress of arbitration procedure, it is important to thoroughly ensure not only promptness but also impartiality in the progress of arbitration procedure.
If arbitral tribunal does not send a proper notice for arbitration procedure to the concerned parties or proceeds the arbitration procedure contrary to the law and passes judgment, any concerned party that disagrees with that judgment can appeal annulment of the judgment to the court.
In addition to this, the DPR Korea. perfectly ensures the independence of arbitration tribunal in the treatment and settlement of dispute to settle foreign economic dispute in a fair manner by thoroughly ensuring the independence of arbitration tribunal in the treatment and settlement of foreign economic arbitration case and by severely regulating not to interfere in treatment and settlement of arbitration case excepting the case stipulated by the law.
Like this, the DPR Korea. clearly and legislatively affirms in such a way that impartiality of arbitral tribunal is thoroughly ensured.
