중재판정과 법원재판의 조화적 그리고 갈등적 상호작용

Abstract

Arbitration resolves concerns associated with local courts and satisfies needs for confidentiality of the parties. As disputes are diversified and require specialized experience and knowledge, arbitration can promote stable transactions. Aligned with international arbitration practice, Korea also enacted a special act to boost arbitration in Seoul as the seat of arbitration. The objective of the New York Convention is to facilitate the recognition and enforcement of arbitral awards. The philosophy of the Arbitration Act is that court intervention is restricted only where the arbitral tribunal cannot act. The harmonizing and conflicting interplay between the arbitral awards and court decisions is reviewed from the perspective of the rationale to respect arbitration agreement to the greatest extent and to restrict court intervention. While anti-arbitration injunctions are not in accordance with the philosophy of restricted court intervention, anti-suit injunctions could be issued to enforce the parties’ agreement to arbitrate. An award which is set aside or denied recognition or enforcement may not be recognized and enforced in a particular state but may independently be recognized and enforced in other jurisdictions. When an award is declared enforceable and merges into the judgment, this does not necessarily bar enforcement of the award itself in addition to the judgment. Under the Arbitration Act it would be difficult to allow courts to issue orders compelling arbitration as specific performance of the parties’ agreement to arbitrate. Also it would be increasingly difficult to ignore needs to compel specific performance of the arbitration agreement. For the time being the interplay between an award and a court decision should be dictated in the framework of the New York Convention and Arbitration Act by the philosophy of deference to arbitration agreement and restrictive court intervention. Eventually the framework should also be revisited in accordance with the philosophy. It would be necessary to proliferate pro-arbitration culture along with interpretation of the framework in tandem with the philosophy and its revisit in order to promote arbitration and competitiveness of Korea as the seat of arbitration.