일본법상 외국중재판정의 승인집행 -적용법규와 승인집행거부를 중심으로

• 영문명: Recognition and Enforcement of Foreign Arbitral Awards in Japan : Conventions, National law and Refusal of Recognition and Enforcement
• 발행기관: 한국중재학회
• 저자명: 김언숙
• 간행물 정보: 『중재연구』 제20권 제3호, 25~46쪽, 전체 22쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2010.12.30

영문 초록

In spite of great interest and recent innovation of the legislative system in the Arbitration and other Alternative Dispute Resolution(ADR) system, In Japan there have been only a few case in which International commercial dispute was settled through the Arbitration compared to other countries. However, we can easily expect that foreign arbitral awards which need to be recognized and enforced in Japan will gradually increase and this makes it very important for us to review the Japanese legislative system regarding recognition and enforcement of foreign arbitral awards. In this paper, I focused on the relations between applicable laws(including convention) regarding recognition and enforcement of foreign arbitral awards in Japan and some issues concerning refusal of recognition and enforcement of foreign arbitral awards. Japan is a member state of several multilateral conventions concerning recognition and enforcement of foreign arbitral awards including the New York Convention of 1958 and at least 20 bilateral agreements which include provisions in relate to the recognition and enforcement of arbitral awards. Therefore there are some legal issues about the priority application between multilateral and bilateral agreements in relate to Article 7(1) of the New York Convention. In Japan, as I mentioned in this paper, there are incoherent opinions concerning this issue. To solve it substantially it would seem appropriate to build up concrete and explicit provisions concerning the application of priority between multilateral and bilateral agreements. On the other hand, in relate to the application between the New York Convention and National Law, it is necessary to take general approach regarding the priority application between Convention (Treaty) and National Law, considering the national application of conventions under the Constitutional System of each country. Among the grounds for non-recognition/enforcement, there are the ones that are decided under the law of the requested country, for instance, arbitrability and public policy. It would therefore be possible that some foreign arbitral awards would not be recognized in Japan especially relating to the arbitrability because its scope in Japan is not so large. Regarding the enforcement of awards annulled in their place of origin, some positive opinions in recent Japanese legal discussions, say that annulled awards should be enforced as a counter strategy of developed countries and judiciary discretion of the requested country would be needed. As mentioned in this paper, the recognition and enforcement of foreign arbitral awards is closely related to judicial policy of the requested country as the recognition and enforcement of foreign judgment is. Even though there existed uniform rules on recognition and enforcement of foreign arbitral awards like the New York convention, each country has different internal legal status of conventions under its own Constitutional System and tends to interpret the provisions based in its own profit. Therefore, it is necessary to review, in the light of conflict of laws, the national legislative system including legal status of conventions of the requested countries concerning recognition and enforcement of foreign arbitral awards.

목차

Ⅰ. 머리말

Ⅱ. 외국중재판정의 승인집행시의 적용법규

Ⅲ. 적용법규 상호간의 적용관계

Ⅳ. 승인집행의 거부와 관련된 문제

Ⅴ. 맺음말

참고문헌

ABSTRACT

키워드

국제상사중재 일본중재법 일본상사중재협회 다국간조약 이국간협약 뉴욕협약 국제상사중재모델법 자동집행성 적용법규 적용관계 중재조항 외국중재판정 승인집행 중재가능성 승인집행의 거부 저촉법 International Commercial Arbitration Japanese Arbitration Law of 2003 JACC multilateral conventions bilateral agreement New York Convention of 1958 UNCITRAL model law self-executing treaty applicable law foreign arbitral awards. recognition and enforcement arbitrability conflict of laws refusal of recognition and enforcement