중국기업과의 국제거래 시 분쟁해결 및 준거법 결정에 관한 사례연구

Abstract

Given that China is the biggest import and export trading country of Korea, it is getting more and more significant to know exactly about how to choose the right forum and governing law in the case of disputes between Korean and Chinese companies, including the possibility of enforcement of Chinese court judgments in Korea. This case study is based upon an actual case, which contains an arbitration agreement which says, “in case where a dispute between the parties occurs, the dispute shall be settled by arbitration in a country that both parties mutually agree on.” Despite this arbitration agreement, the Chinese seller brought a lawsuit to a Chinese people’s court on the reason that the Korean Buyer failed to have a letter of credit issued in accordance with the contract. The Korean buyer did not have the letter of credit issued since the Chinese seller had delivered the goods not in confirmity with the contract at the previous shipment. This case raises a lot of issues from the perspective of a broad sense of international private law. First of all, in spite of the arbitration agreement, is it allowed for the Chinese company to bring a lawsuit to the Chinese court? If so, on what grounds does the Chinese court negate the validity of the arbitration agreement between the parties. And at the next step on what grounds does the Chinese court admit its jurisdiction to rule over this case? Assuming that this case was raised in front of a Korean court, how would the Korean court decide over the validity of the arbitration agreement as well as its general jurisdiction? How would the Chinese court determine the governing law applicable to the substance of the dispute? Finally, would the Chinese court judgment be enforceable in Korea?Due to peculiarities of the Chinese Arbitration Act, for example in order for an arbitration agreement to be valid, there should be arbitration committee designated, there may be unforeseen surprising legal actions when we have international business transactions with Chinese companies in China. With my very limited knowledge about the Chinese law and practice, the conclusion might be quite speculative. And recent revision of Chinese private international law may add the risk of being inaccurate to the conclusion. However, I expect this study to contribute some to the Korean companies and legal practitioners who address business issues related to the Chinese companies.