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Comparative Research on the Arbitrability of the Maritime Disputes Focusing on the Seaman’s Claim

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2019, (25), pp.123-137
  • DOI : 10.31839/ibt.2019.04.25.123
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : March 29, 2019
  • Accepted : April 23, 2019
  • Published : April 30, 2019

Kim, Yong Eui 1

1동아대학교

Accredited

ABSTRACT

Maritime legal matters require varieties of specialties in terms of its transactional context and thus the same in resolution of the disputes arising out of the transactions. More often times the disputes are resolved through arbitration rather than litigation at courts. Arbitration of commercial maritime disputes is a seaworthy forum particularly before a tribunal of marine experts such as the SMA in US or KCAB (more specifically APMAC) in Korea. Despite the so-called general trend of pro-arbitration in maritime disputes, personal injury arbitrations called for in a seaman’s employment contract are still barred by the FAA in US. However, in US, some vessel owners are creating arbitration opportunities by advancing new arguments to avoid statutory preclusion and to replace such antiquated notion as the ward of admiralty doctrine with current realities. This conflict between pro-arbitration notion and policy and the statutory limitation on the arbitrability of seaman’s claim is a very important point the Korean legal system to take a look at. Where there is not yet such a conflict occurring as a legal issue in Korea, it is suggested that Korean jurisprudence should pay more attention to the commercial nature of the arbitration as a vehicle when it works for the dispute resolution under the employment contract where one party is usually a commercial entity and the other is a lay person and try to find the better solution of the disputes between the employers and the seaman who is situated all the time in a harsh and dangerous working environment. In sum, it is strongly suggested in Korea as well that the pre-claim or pre-injury arbitration agreement between an employer and a seaman should be barred from arbitration under certain relevant circumstances.

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