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An Attempt to Sidestep Regulatory Supervision? – Increasing Arbitration of Public Law Matters in Korea and an Emerging Structural Tension

이재민
아시아태평양법연구소 (Asia Pacific Law Institute)|2024.08|Journal of Korean Law|제23권 제2호|pp. 321-362|DOI 10.23110/jkl.2024.23.2.004

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키워드

Public LawPrivate LawCommercial ArbitrationInvestment ArbitrationArbitrabilityInvestor-State Dispute Settlement Proceedings

초록

With increasing attention to ADRs, arbitration is chosen by many disputing parties to settle their disputes. Arbitration also takes place as regards a dispute between a government agency and a private entity. Korea also observes this new phenomenon these days. This agency-private entity arbitration raises many novel questions. Apparently, arbitration is mainly designed to address disputes over private law instead of public law. Arbitration between a government agency and a private party, however, sometimes addresses public law matters as one of the key issues in the dispute. Attempting to settle these public law matter disputes through arbitration stands to raise a structural tension, as it puts a public law matter into a private law dispute settlement scheme. It may not be able to sufficiently safeguard public interest. Similar concerns over investment arbitration through ISDS proceedings have been robustly raised these days, but commercial arbitration between an agency and a private entity has received relatively scant attention even if it deals with almost the same type of public law matters between almost the same type of parties. Korea is also confronted with this new challenge in agency-private entity commercial arbitration. And yet, relevant Korean statutes do not seem to be structured in a way to properly address this new challenge. Clarification and adjustment are needed through future amendments.

Abstract

With increasing attention to ADRs, arbitration is chosen by many disputing parties to settle their disputes. Arbitration also takes place as regards a dispute between a government agency and a private entity. Korea also observes this new phenomenon these days. This agency-private entity arbitration raises many novel questions. Apparently, arbitration is mainly designed to address disputes over private law instead of public law. Arbitration between a government agency and a private party, however, sometimes addresses public law matters as one of the key issues in the dispute. Attempting to settle these public law matter disputes through arbitration stands to raise a structural tension, as it puts a public law matter into a private law dispute settlement scheme. It may not be able to sufficiently safeguard public interest. Similar concerns over investment arbitration through ISDS proceedings have been robustly raised these days, but commercial arbitration between an agency and a private entity has received relatively scant attention even if it deals with almost the same type of public law matters between almost the same type of parties. Korea is also confronted with this new challenge in agency-private entity commercial arbitration. And yet, relevant Korean statutes do not seem to be structured in a way to properly address this new challenge. Clarification and adjustment are needed through future amendments.

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