미국에서의 중재인의 권한판단권한 (Competence-Competence)에 관한 고찰

• 영문명: A Study of Competence-Competence in the United States
• 발행기관: 한국중재학회
• 저자명: 강수미
• 간행물 정보: 『중재연구』 제22권 제2호, 53~77쪽, 전체 25쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2012.08.30

영문 초록

Competence-competence refers to an arbitratorpower to determine whether he or she has jurisdiction to decide a controversy. Although arbitrators power to rule on their own jurisdiction is generally recognized throughout the world, in the United States, neither the courts nor legislative bodies have recognized its significance or the reasoning behind its widespread adoption. Section 3 of the Federal Arbitration Act (FAA) is notorious among arbitration statues for its failure to incorporate competence-competence. When courts rule on an issue of competence-competence, it is referred to as a question of who decides the arbitrability of the case. In the United States, the use of competence-competence as a term of art is still limited to scholarly writings. The answer to the competence-competence inquiry is found in an interpretation of section 3 of the FAA which empowers the courts to decide arbitrability issues. The cases of the Supreme Court and most commentators interpreted sections 2 and 3 of the FAA as conferring issues of arbitrability on the federal courts, including the ability to rule on the validity and scope of the arbitral agreement. Traditionally, United States courts have denied the competence-competence to arbitral tribunal. Recently, however, they have confounded the rules by placing primary importance on the arbitration agreement between the parties. The Supreme Court, in a series of cases, has underscored the necessity of giving full effect to the intentions of the parties as expressed in their agreement to arbitrate. The result of the Supreme Court’s emphasis on contractualism in determining the issue of arbitrability is most evident in the Courtdecision in the First Options case. Under First Options, courts are to decide arbitrability issues unless there is a clear and unmistakable contractual assignment of these issues to the tribunal itself. The Court is appraised that it has attempted to compromise between contractual freedom in the arbitration setting and therule of law that is necessary in a society that depends on the concept of ordered liberty. In the decision in Howsam, the Court clarified the definition of arbitrability by attempting to draw a clear line between questions of arbitrability that are to be decided by courts and those matters that bear on the allocation of decisions between courts and arbitrators but are not questions of arbitrability.

목차

Ⅰ. 서론

Ⅱ. 중재인의 권한판단권한(Competence-Competence)

Ⅲ. 중재인의 권한판단권한에 관한 미국 판례의 입장

Ⅳ. 결론

참고문헌

ABSTRACT

키워드

중재가능성 재인 중재인의 권한판단권한 중재인의 판정권한 중재판정부 중재합의 Arbitrability Arbitrator Competence-Competence Arbitral Jurisdiction Arbitral Tribunal Arbitration Agreement