국제중재절차와 상계

Abstract

This paper deals with the legal problem of offsetting in international and domestic arbitration procedures. To this end, the Act on Procedures for Applying Arbitration Agreement and Settlements and the Act on Actual Application are discussed first, and then the State Court and the Court of Arbitration are explained about whether to allow set-off with regard to the jurisdiction of the set-up, which is a legal issue of set-off. First, the permit of set-off is reviewed by the court of the State or the Ministry of Arbitration, depending on whether an arbitration agreement has been attached to the opposing bond, and second, it deals with the question of whether it can be allowed to set-off in this procedure if procedures for approval and execution are initiated in the domestic trade court to execute the bonds confirmed by the foreign heavy court. Given that it is very difficult to find examples of discussions or practices in any area of our country, we intended to provide an opportunity for discussion through comparative legal consideration of German law and German practice. In particular, the former took the position that offsetting should not be allowed by counter-claims that do not have an arbitration agreement attached corresponding to the purpose of Article 9 (1) of the Arbitration Act on Arbitration Arguments, nor should it be allowed to be set off in arbitration proceedings with counter-claims that do not have the effect of the arbitration agreement and eventually fall under the jurisdiction of the court of commerce. The arbitration procedure was set off for issues belonging to other areas, and the issue of whether to allow offset claims in the approval and execution procedures of foreign judgments that follow if the arbitration tribunal rejected them without judging them. The paper took the position that if the offsetting clause is not accepted in the arbitration procedure, this opposing bond is not necessarily to be claimed in the new arbitration procedure, and it is safe to argue in the compulsory execution procedure. Accordingly, if an applicant for arbitration fails to apply for an execution document for a heavy court, the applicant for arbitration claims that it is a principle that the applicant must file a separate appeal for a separate claim in order to realize his or her dissenting debt, but the applicant for arbitration can also claim an offset in the approval and execution procedures.