캘리포니아 주법원이 확인한 미국 중재판정의 승인·집행에서 그 대상, 중재합의의 성립과 임의대리의 준거법

Abstract

In this case dealt with in the Supreme Court Decision 2017Da225084 decided July 26, 2018, the Plaintiff, an American company, filed an application for arbitration against the Defendant, a Korean company, seeking compensation for damages incurred by the defendant’s violation of a contract of sale, at the International Chamber of Commerce International Arbitration Court. After receiving a favorable arbitral award and a confirmation order by the California court, the Plaintiff submitted a request seeking an enforcement decision permitting the enforcement of the arbitral award in the Korean court. Although case note on the Supreme Court decision has already been published, the author writes the present case note because the author has different views on several points. The present commentary discusses issues related to the recognition and enforcement of arbitral awards under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (“New York Convention”). Issue 1 (Chapter Ⅱ.). Article 5(1) Subparagraph (a) of the New York Convention stipulates a case where “the arbitration agreement is not valid under the law to which the parties have subjected it” as one of the grounds to refuse to recognize a foreign arbitral award. Where the parties have designated the law applicable to the main contract (the laws of the State of California in this case), it can usually be presumed that the law applicable to the main contract has been designated as the governing law of the formation and substantial validity of the arbitration agreement. Thus, the Supreme Court decision which draws the same conclusion is to be approved. The existing case note, following the influential theory that emphasizes the independence of the arbitration agreement, criticizes that the Supreme Court should have applied the law of the place of arbitration as the governing law of the arbitration agreement. However, such debate serves no purpose in this case as the place of arbitration is the State of California. Issue 2 (Chapter III.). In this case, a question arises as to whether an arbitration agreement was formed by the incorporation of an arbitration clause in the instant standard terms of the Defendant. The incorporation of standard terms is a matter of formation of an arbitration agreement. The Supreme Court decision drawing the same conclusion is, therefore, valid here as well. The second instance court derived the requirements for the incorporation of arbitration clause from the laws of the State of California, the law governing the arbitration agreement, and the Supreme Court also supported it. However, the author believes that the requirements for the incorporation of arbitration clauses must be derived from the uniform rules prescribed in the New York Convention. Issue 3 (Chapter IV.). Another issue in the instant case was whether the Defendant’s employee, who was involved in the negotiation and conclusion of the sales contract, actually had authority or whether he could be deemed as an apparent agent of the Defendant. This is a matter of the governing law of voluntary agency in the interpretation of Article 5(1) Subparagraph (a) of the New York Convention. In Korea, the opinion that determines the governing law of voluntary agency in accordance with the Act on Private International Law of Korea (Article 18) is prominent and the Supreme Court decision adopts the same position. The existing case note argues that, under the New York Convention, voluntary agency should be characterized as a matter of capacity of the parties, which appears to be persuasive under Article 5(1) Subparagraph (a) of the New York Convention. However, the author adopts an independent connecting factor for the voluntary agency even though the voluntary agency is characterized as a matter of the formation and validity of the broad arbitration agreement stipulated in Article 5(1) Subparagraph (a). It is true, however, that such view is not completely consistent with Article 5(1) Subparagraph (a) of the New York Convention because, according to Article 5(1) Subparagraph (a), the law applicable to the arbitration agreement is the law to which the parties have subjected it or, failing any indication thereon, the law of the country where the award was made. Issue 4 (Chapter V.). A question has arisen as to what is the subject of recognition and enforcement in Korea since there was a confirmation order by the Federal District Court of California permitting enforcement of the ICC arbitral award in this case. Since enforcement of enforcement judgment is not allowed, the subject of recognition and enforcement in Korea is the original arbitral award. The Supreme Court decision which adopts the same view is, therefore, valid.