당사자합의에 의한 중재판정의 사법심사 확대에 관한 연구 - 미국판례를 중심으로 -
Study on the Contractual Expansion of Judicial Review of Arbitral Awards - Focused on the U.S. Case Laws
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참고문헌
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초록
During the past decade, parties to arbitration agreements have attempted to broaden the scope of judicial review of arbitral awards by contract, beyond the boundaries established in international and domestic arbitration statutes. This article focuses on the history and evolution of the US court's attitudes towards contractual expansion of judicial review of arbitral awards, but also considers the practical approach of national courts to theses clauses. In light of the fact that the arbitral efficiency is properly a concern for the contracting parties alone, who presumably know what works best for them, it would be extraordinarily officious to insist on imposing the putative benefits of finality and economy on parties who, in their contract, have done everything they possibly could to wriggle out from under them. While the issue is one that has caused a split in the U.S. federal courts of appeals, with seemingly compelling arguments on both sides, it currently remains an open question whether there is a limit to the standard of review parties can impose upon the courts. As arbitration is a creature of contract, the arbitrability of an issue derives fundamentally from the parties' agreement to arbitrate, it is suggested that the contractual expansion of judicial review of arbitral awards can be seen as the party's self-help to secure the arbitral credibility through the court's minimum intervention. Accordingly, it is hoped that the Supreme Court's ultimate ruling shed light on whether private parties have the power to prescribe the scope of judicial review of arbitration awards, and if so, whether there are any limits to contractual authority in this area.
Abstract
During the past decade, parties to arbitration agreements have attempted to broaden the scope of judicial review of arbitral awards by contract, beyond the boundaries established in international and domestic arbitration statutes. This article focuses on the history and evolution of the US court's attitudes towards contractual expansion of judicial review of arbitral awards, but also considers the practical approach of national courts to theses clauses. In light of the fact that the arbitral efficiency is properly a concern for the contracting parties alone, who presumably know what works best for them, it would be extraordinarily officious to insist on imposing the putative benefits of finality and economy on parties who, in their contract, have done everything they possibly could to wriggle out from under them. While the issue is one that has caused a split in the U.S. federal courts of appeals, with seemingly compelling arguments on both sides, it currently remains an open question whether there is a limit to the standard of review parties can impose upon the courts. As arbitration is a creature of contract, the arbitrability of an issue derives fundamentally from the parties' agreement to arbitrate, it is suggested that the contractual expansion of judicial review of arbitral awards can be seen as the party's self-help to secure the arbitral credibility through the court's minimum intervention. Accordingly, it is hoped that the Supreme Court's ultimate ruling shed light on whether private parties have the power to prescribe the scope of judicial review of arbitration awards, and if so, whether there are any limits to contractual authority in this area.
참고문헌 (20)
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- Black, Barbara, "Making It Up As They Go Along: The Role of Law in Securities Arbitration", Cardozo Law Review, 23 (2002)
- Born,Gary B., "International Arbitration And Forum Selection Agreements: Drafting And Enforcing 2d" (2006), Kluwer Law International
- Braslow, Norman T., "Contractual Stipulation for Judicial Review and Discovery in United States-Japan Arbitration Contracts", Seattle University Law Review, 27 (2004)
- Comb, Hugh R., "Courts Examine Whether Judicial Review of Arbitration Awards Can Be Expanded by Contract", National Law Journal (1996)
- Fellas, John, "Supreme Court Says ‘No’ to Contractual Expansion of FAA Judicial Review", Dispute Resolution Journal, 63 (2008)
- Friedland, Paul D., "Arbitration Clasue For International Contracts" (2004), Juris Publishing
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- Rau, Alan Scott, "The Culture of American Arbitration And The Lessons of ADR", Texas International Law Journal, 40 (2005)
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- Schmitz,Amy J., "Ending a Mud Bowl: Defining Arbitration's Finality through Functional Analysis", Georgia Law Review, 37 (2002)
- Sullivan,Kevin A.,Comment, "The Problems of Permitting Expanded Judicial Review of Arbitration Awards under the Federal Arbitration Act", Saint Louis University Law Journal, 46 (2002)
- "Federal Arbitration Act U.S.C. title 9", ~
- "Hall Street Associates, L.L.C. v. Mattel, Inc., 127 S.Ct. 2875 (Mem), 128 S.Ct. 1396", ~
- "LaPine Technology Corp. v. Kyocera Corp., 130 F. 3d 884 (9th Cir. 1997)", ~ (1997)
- "New England Utilities v. Hydro Quebec, 10 F.Supp.2d 53 (D.C.Mass. 1998)", ~ (1998)
- "UHC Management Company Inc. v. Computer Science Corp., 148 F.3d 992 (8th Cir. 1998)", ~ (1998)
- "Bowen v. Amoco Pipeline Company, 254 F.3d 925 (10th Cir. 2001)", ~ (2001)