미국 판례상 중재조항의 분리가능성에 관한 고찰

• 영문명: A Study on the Separability of an Arbitration Clause in United States Cases
• 발행기관: 한국중재학회
• 저자명: 강수미(Soo-Mi Kang)
• 간행물 정보: 『중재연구』 제24권 제2호, 109~136쪽, 전체 28쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2014.06.30

영문 초록

The separability of an arbitration clause is generally recognized throughout the world, but there are no provisions of it under the Federal Arbitration Act(FAA) of the United States. As such, the controversy over the recognition of separability has developed with the rise of certain cases. The Supreme Court recognized this separability based on section 4 of the FAA in the decision of the Prima Paint case. The Court ruled that courts must decide the claim about the fraudulent inducement of an arbitration agreement itself, but they must not decide the claim about the fraudulent inducement of a contract involving a broad arbitration clause, and they have to proceed with the arbitration. The Court said that the subject of an arbitral award is set by the agreement of the parties, and thereby arbitrators can decide the issues about the fraudulent inducement of a contract on the basis of the arbitration clause when it is broad to the point of including the issues. Many courts have extended the separability beyond the fraud context to include other defenses to contract formation in the federal courts such as the occurrence of mistake, illegality, and frustration of purpose. In interpreting the parties’ intention of ensuring arbitrator competence, the Supreme Court has treated differently the issues about whether the arbitration agreement exists or not and the issues about whether the preconditions for dispute resolution by a valid arbitration agreement is fulfilled or not. The Court holds that the federal policy in favor of arbitration does not apply to the former issues, and arbitrators can decide theses issues only when parties assign them clearly and unmistakably to them. However, the later issues receive a presumption in favor of arbitration; i.e., when the interpretation of a valid arbitration clause is contested, the arbitrators can decide these issues. In the First Options case, the former issue was questioned. The question of the separability of an arbitration clause is where the validity of the main contract involving the arbitration clause is contested. Therefore, the doctrine of separability did not operate in the First Options case in which the validity of the arbitration clause itself was questioned, and the decision in the First Options was irrelevant to the separability. I think that the Prima Paint case and the First Options case have different issues, and there is no tension between them.

목차

Ⅰ. 서론

Ⅱ. 중재조항의 분리가능성

Ⅲ. 중재조항의 분리가능성에 관한 판례의 입장

Ⅳ. 중재가능성의 판단권한에 관한 판례의 입장

Ⅴ. 결론

키워드

Separability Arbitrability Arbitration Clause Arbitration Agreement