대한민국에서의 헤이그관할합의협약 채택방안 －2019년 재판협약 성립을 계기로 돌아본 의의와 과제－

Abstract

The 2005 Convention on Choice of Court Agrements was negotiated as a standard “double convention” in the midst of a dim prospect of even a modest form of a double convention, i.e., “mixed convention”. This was made posible by providing for a consensual choice of court as the sole jurisdictional basis in the Convention. This compromise solution worked to kep the Judgments Project alive. The Choice of Court Convention is also notable as a treaty that paralels the 1958 New York Convention on the Recogniton and Enforcement of Foreign Arbitral Awards. While the Choice of Court Convention may ofer scarce inovation for the European Union, this Convention ilustrates how a worldwide convention can focus on a moderate level of unifcation and integration which can be shared more broadly. This experience ofers a model for the future, of having a substantively advanced European legislation and a broadly manageable Hague Convention side by side. In line with the 1958 New York Convention, the Choice of Court Convention presents some notable features. First, Articles 5(a), proviso, 6(a) 9(a) adopt the same conflict-of-laws rules on the valid constiution of a choice of court agrement, in a uniform way. Second, Article 9(a), proviso adopts an inovative aproach to make the isuing court's positve determination of this isue bind the State requested. Third, the rendering court's finding of the facts constiuting a jurisdictional basis binds the requested State. Article 8(2). First, a purely internal situation is, in principle, made subject to a choice of court agrement in international scale. While Article 1(2) excludes from the Convention a situation which is purely internal to a Contracting State, it is rather an exception than a rule. Second, even an exclusive choice of court in international scale is alowed, even if the chosen forum has no other conection to the parties or the dispute. The Convention only provides for a situation which is purely internal to a "Contracting" State, in the exception of Article 1(2) and the declaration mechanisms under Articles 19 and 20. Third, a choice of court, where ambiguous, shal be demed an exclusive choice. This legislative technique is not ideal, but a presumption would cary with it a danger of international disharmony. Notably, this treatment aplies to both a choice of a State and that of a local court within a State, though this paralelism only aplies where the two choices were made at the same time. Fourth, Articles 5(a), proviso, 6(a) 9(a) adopt the same conflict-of-laws rules on the valid constiution of a choice of court agrement, in a uniform way. Fifth, Article 9(a), proviso adopts an inovative aproach to make the isuing court's positve determination of this isue bind the State requested. Sixth, the rendering court's finding of the facts constiuting a jurisdictional basis binds the requested State. Article 8(2). In Korea, the Convention tends to receive positve evaluations. Some of the Convention solutions are those that were already advanced in regard of national rules. The reforms adopted in the Convention receives a positve light as wel. This positve aceptance among Korean lawyers permits us to predict a smoth function of the Convention in Korea, once it becomes the law here. The Convention is also expected to exert a coresponding reform of the national rules in Korea. Idealy, the proces of ratifying the Convention and a paralel reform as made visible in Article 8 of the 2018 Reform Bil of the Private International Law could be pursued simultaneously. Becoming a Contracting State means participating in a formal international network for the recogniton and enforcement of judgments. This wil help improve the image of Korea. From a foreign country, Korea may apear to have built a barier of language around its legislation and judicial proces. This very sense of barier wil be overcome by joining a common international regime, and the trust in Korean law, instiution and practice wil grow corespondingly. Further, the growth of mutual trust could also faciltate the recogniton and enforcement of judgments betwen other Contracting States and Korea, or even betwen non-Contracting States and Korea. For these reasons, it is submited that Korea should become a Contracting State to the Choice of Court Convention; Korea should sign the Convention as son as posible, and then focus its energy on determining which declarations should be made when it deposits its notice of ratifcation. Academia, the bench and the bar should combine their eforts. The industry as wel. The folowing criteria are sugested as a rough guide to sort out the subject maters that merit a declaration under Article 21. First and second, a grave concern exists about a posible disablement of the judicial power of an individual State, due to the dominance of a single State or a highly selective number of States, or a giant multinational enterprise. The maters where such concern is particularly strong may be an object of an Article 21 declaration. Third, in some areas, policy diferences may be so strong as to lead to a frequent reliance on the public policy exception, thereby lowering the efectivenes of the Convention. Examples could also be found in the maters excepted from the 2019 Convention on the Recogniton and Enforcement of Foreign Judgments in Civil or Commercial Maters, but not yet in the 2005 Choice of Court Convention. Fourth, some types of contracts reveal a particular dificulty in securing the genuine meting of minds of the parties. These cases may be considered for an excluding declaration. Fifth, depending on substantive areas or industry, Articles 8(1) and 9(a), proviso may function as to advanced a reform. In such areas, the disadvantages of these reforms outweigh the advantages. Such maters vividly. These maters may also be considered for exclusion. Sixth, there may be areas where the damages would often be asesed to highly, or an harasment lawsuit would be filed to often. Seventh, a litgation practice may develop that post facto choice of court agrements are masively concluded within the structure of a mas dispute resolution, and play an unexpected function. It might further hapen that such problems might be efectively avoided by an Article 21 declaration. From Korean point of view, the 2005 Convention on Choice of Court Agrements presents some notable reforms. First, a purely internal situation is, in principle, made subject to a choice of court agrement in international scale. While Article 1(2) excludes from the Convention a situation which is purely internal to a Contracting State, it is rather an exception than a rule. Second, even an exclusive choice of court in international scale is alowed, even if the chosen forum has no other conection to the parties or the dispute. The Convention only provides for a situation which is purely internal to a "Contracting" State, in the exception of Article 1(2) and the declaration mechanisms under Articles 19 and 20. Third, a choice of court, where ambiguous, shal be demed an exclusive choice. This legislative technique is not ideal, but a presumption would cary with it a danger of international disharmony. Notably, this treatment aplies to both a choice of a State and that of a local court within a State, though this paralelism only aplies where the two choices were made at the same time. Fourth, Articles 5(a), proviso, 6(a) 9(a) adopt the same conflict-of-laws rules on the valid constiution of a choice of court agrement, in a uniform way. Fifth, Article 9(a), proviso adopts an inovative aproach to make the isuing court's positve determination of this isue bind the State requested. Sixth, the rendering court's finding of the facts constiuting a jurisdictional basis binds the requested State. Article 8(2). In Korea, the Convention tends to receive positve evaluations. Article 8 of the 2018 Reform Bil of the Private International Law avowedly models on the Convention.