중재 자치의 개념과 내용

Abstract

Recently, discussions on arbitral autonomy have been substantially increased. However, there are still many theoretical and practical hurdles for arbitral autonomy. This paper starts with the issues of institutional grounds for arbitration system and theoretical grounds for arbitral autotomy. The author argues that arbitral autotomy derives from the "Principle of Private Autonomy which encompasses not only the Principle of Party Autonomy but also the Principle of Autonomy in Dispute Resolution. This paper classifies arbitral autotomy into two categories, i.e., autotomy of arbitral party and autotomy of arbitrator. The autotomy of arbitral party includes party autonomy in arbitration agreement, autotomy of arbitral party as to arbitrator, autotomy in choice of law and in arbitration procedure. the parties to an arbitration agreement enjoy freedom in conclusion of an arbitration agreement including designation of the seat of arbitration and the subject matter thereof, namely, arbitrability. Further, the parties are free to determine the arbitrator's authority, to exempt arbitrator's liability as well as to appoint arbitrator(s). The author argues that the freedom of the parties in choice of both substantive and procedural law for the arbitration should be guaranteed. As a part of autotomy of the parties in arbitration procedure, the right to appeal for arbitral award may be waived and enforcement of an arbitral award can be granted even after the award has been set aside by the local court. On the other hand, autotomy of arbitrator is another significant part of arbitral autonomy. Arbitrator can designate the seat of arbitration absent from that of the parties. Arbitrator has the power to determine his own authority, known as Competence - Competence, and arbitral procedure including the power to order interim measures prior to final award. In the absence of the parties' choice, arbitrator may exercise its authority to determine the governing law for substantive issues as well as procedural issues. The author requires municipal courts respect arbitration agreement to the maximum extent and limit their authority in intervening arbitration procedure. In order to enhance and secure arbitral autonomy, he wishes international rules therefor to be established as early as possible. he envisions that an ultimate autonomy in arbitration can be realized by introducing a system of self-enforcement of arbitral awards without aid of municipal courts.