국제중재에서 판매점의 보상청구권

Abstract

This article mainly deals with distributor’s indemnity rights in cross-border transactions and further focuses on its effect in the situation of international arbitration setting. Distributor often seeks for indemnity compensation from its supplier when contract is terminated or expired, if the distributor has a similar status of commercial agent in the contract with its supplier. Most of jurisdictions have no specific statute regulating distributorship arrangement, except Belgium which has a statute created in 1961 allowing distributor such indemnity compensation in addition to regular compensation. Such indemnity compensation further deems to be recognized as internationally mandatory rules. Other European jurisdictions such as Germany analogically apply the indemnity compensation normally available to commercial agents to distributors in a limited situation. Commercial agent’s indemnity compensation in Germany and other EU member countries is also recognized as internationally mandatory rules. A problem arose where a Belgium distributor files lawsuit with its court against a California supplier in spite of a valid arbitration agreement in which both parties agreed to resolve any dispute arising out of the distribution contract by arbitration in the site of California with California laws. Belgium Supreme Court invalidated the arbitration agreement and awarded the distributor indemnity compensations, holding that the arbitral panel is not certainly considering and applying the statute protecting its national distributor. The Court reasoned that the distributor’s indemnity compensation is not arbitrable. Similarly, German court also denied arbitration agreement contained in commercial agency contract in a similar situation of Belgium case because of the similar reasons of the Belgium court. Such decisions have been heavily criticized. This article describes the Belgium’s statute and German court’s analogical application of the indemnity compensation to distributor. It also analyzes whether such right is the internationally mandatory rules. The article further illustrates Belgium and German courts’ denial of arbitration agreement where their national distributor and commercial agent sought indemnity compensation through the court proceedings rather than through the agreed upon arbitration process. The courts denied the parties arbitration agreements because the arbitral tribunal will certainly not apply their internationally mandatory rules irrespective of the agreed governing law. It seems that the courts are placed in a dilemma. This article finally suggests that such dilemma can be resolved by arbitrator’s application of the internationally mandatory rules in the arbitration process.