국제상사중재에서의 중재합의에 관한 법적 문제점 -대법원 2004. 12. 10. 선고 2004다20180 판결이 제기한 뉴욕협약상의 쟁점들을 중심으로

• 영문명: Several Legal Issues on Arbitration Agreement under the New York Convention Raised by the Recent Supreme Court Decision of Korea of December 10, 2004
• 발행기관: 한국중재학회
• 저자명: 석광현
• 간행물 정보: 『중재연구』 제15권 제2호, 225~261쪽, 전체 37쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2005.06.30

영문 초록

Under Article IV of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention), in order to obtain the recognition and enforcement of a foreign arbitral award, a party applying for recognition and enforcement of a foreign arbitral award shall supply (a) the duly authenticated original award or a duly certified copy thereof and (b) the original arbitration agreement or a duly certified copy thereor. in addition, if the arbitral award or arbitration agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language, and the translation shall be certified by an official or sworn translator or by a diplomatic or consular agent. In a case where a Vietnamese company which had obtained a favorable arbitral awara in Vietnam applied for recognition and enforcement of a Vietnamese arbitral award before a Korean court, the recent Korean Supreme Court Judgment (Docket No. 2004 Da 20180. Judgment ) rendered on December 12, 2004 has alleviated the document requirements as follows ： The Judgment held that (i) the party applying for recognition andenforcement of a foreign arbitral award does not have to strictly comply with the document requirements when the other party does not dispute the existence ana the content of the arbitral award and the arbitration agreement and that (ii) in case the translation submitted to the court does not satisfy the requirement of Article 4， the court does not have to dismiss the case on the ground that the party applying for recognition and enforcement of a foreign arbitral award has failed to comply with the translation requirement under Article 4， and instead may supplement the documents by obtaining an accurate Korean translation from an expert translator at the expense of the party applying for recognition and enforcement of the foreign arbitral award. In trus regard, the author fully supports the view of the Judgment. Finally, the Judgment held that, even though the existence of a written arbitration agreement was not disputed at the arbitration, there was no written arbitration agreement between the plaintiff and the defendant and wenton to repeal the judgment of the second instance which admitted the existence of a written arbitration agreement between the parties. In this regard, the author does not share the view of the Judgment. The author believes that considering the trend of alleviating the formality requirement of arbitration agreements under Article 2 of the New York Convention, the Supreme Court could have concluded that there was a written arbitration agreement because the defendant participated in thearbitration proceedings in Vietnam without disputing the formality requirement of the arbitration agreement. Or the Supreme Court should have taken the view that the defendant was no longer permitted to dispute the formality requirement of the arbitration agreement because otherwise it would be clearly against the doctrine of estoppel.

목차

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참고문헌

Abstract

키워드

외국중재판정의 승인 및 집행 뉴욕협약 중재합의 인증과 증명 금반언의 법리 승인거부사유 실질재심사금지의 원칙 New York Convention recognition and enforcement of foreign arbitral awards authentication and certification translation arbitration agreement doctrine of estoppel