우리나라 판례에 나타난 외국중재판정 집행거부사유

Abstract

Most of disputes in international trades are settled by international commercial arbitration. If the party concerned fulfils an arbitral award voluntarily, any problem doesn’t take place. If not so, the other party concerned shall claim compulsory execution with the arbitral award. A foreign award causes legal problems differing from domestic arbitral award, with regard to Korean sovereignty, since South Korea shall approve and enforce the foreign arbitral award in the position of South Korea. With regard to recognition and enforcement of foreign arbitral awards, differing from execution of foreign judgments, international conventions such as ‘United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards’ are concluded. Korean act on arbitration has related clauses in article 47 and article 39 and takes a method which it follows New York Convention with regard to recognition and enforcement of foreign arbitral awards. New York Convention has 7 reasons for refusing enforcement. The purpose of the study was to examine problems in recognition and enforcement of foreign arbitral awards in South Korea-especially reasons for refusing enforcement- by examining the former Korean precedents with regard to recognition and enforcement of foreign arbitral awards. Reasons for refusing enforcement in New York Convention, Article 5, are ①defect of capacity to act or nullity of arbitral award, ②violation of the right to defense, ③transfer of arbitrator’s right, ④defect of organization of arbitral award department or of arbitral procedure and ⑤arbitral award without legal binding force or cancelled/stopped arbitral award and ①possibility of arbitration and ②public order. The study examined a trend of Korean precedents related to the above. Korean court analyzes reasons for refusing enforcement of foreign arbitral awards very limitedly to accept recognition and enforcement of foreign arbitral awards. Korean court has the most precedents with regard to public order. Korean precedents related to the above has a trend limiting in violation of international public order-only serious violation of public order against justice as much as confusing order of domestic laws, considering stability of international trade order. In the reasons excepting public order, balancing legal judgment of Korean court will secure a relatively larger position than national policies. However, at this time, it is also more desirable to have an attitude to make judgment by grasping a large context such as whether arbitral procedures are fairly realized in overall and whether defense right is violated invalidly than to analyze related laws officially, considering intention of arbitral system. The Korean court is considering international public order, not applying only domestic public order a reason for refusing enforcement of foreign arbitral awards, which is a desirable direction since it is suitable to the international standard. Only, it is meaningful to establish internal standards required to setting up the standards. And the internal standards shall be set to be opened. The intention of arbitration depends on a self-regulating method to settle disputes. Therefore, the court shall minimize its intervention, excepting necessary cases, to give vigor to the intention of arbitral system.