중재판정의 기판력에 관한 고찰

• 영문명: A Study on the Res Judicata of Arbitral Awards
• 발행기관: 한국중재학회
• 저자명: 서세원
• 간행물 정보: 『중재연구』 제17권 제2호, 3~21쪽, 전체 19쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2007.06.30

영문 초록

Arbitration is a private and contractual means of dispute resolution. As a creature of contract, any particular arbitration owes its existence-and attendant limitations-to an arbitral agreement. This means that, in practice, the parties select their own judges, forum, and rules. By agreeing to arbitration, parties hope to achieve several goals. And arbitration has proven to be quicker, cheaper, and more predictable than litigation as a means of resolving many types of claims. As a primary method of conflict resolution, it is now worthwhile to consider carefully any procedural mechanism designed to promote the central aims of this alternative to litigation. It is helpful to frame any particular analysis according to (1) the type of decision for which preclusive effect is sought (arbitral award or court judgment) and (2) the type of subsequent proceeding in which preclusion is sought (an arbitration or a litigation). Res judicata may well bar litigation of that claim between the parties, but non-parties (affiliates or individuals) will not benefit from this bar unless the arbitral tribunal makes findings sufficient to satisfy the elements of collateral estoppel. The final permutation to be considered involves an arbitral award s preclusive effect on a subsequent arbitration. Whether a prior court decision should preclude issues or claims in a subsequent arbitration presents the easiest case for analysis. It is the easiest primarily because there is generally little room to debate whether adequate procedures were followed in a litigation. That is, one can safely assume that the rules of evidence and the rules of civil procedure were followed and that formal records sufficiently memorialize both the proceeding itself and the ultimate decision. Procedural regularity is mentioned not necessarily because it is an analytic tool, but because so many jurists and scholars see it as an impediment to the application of preclusionary doctrines.

목차

Ⅰ. 서론

Ⅱ. 중재판정의 구속력의 근거

Ⅲ. 중재판정의 기판력을 둘러싼 문제점

Ⅳ. 중재판정의 효력을 다투는 방법

Ⅴ. 결론

참고문헌

Abstract

키워드

중재판정 기판력 중재판정 취소 Arbitration dispute resolution conflict resolution Res judicata arbitral tribunal collateral estoppel arbitral award preclusive effect civil procedure preclusionary doctrines