국제상사중재에 있어 Anti-suit Injunction에 대한 미국법원의 해석과 함의

Abstract

The U.S. Courts' Interpretation of Anti-suit Injunctions and its Implication in International Commercial Arbitration 　　Anti-suit injunction is a device, originally found in common law countries, whereby a court orders a party to refrain from bringing a claim before the courts of another State or before an arbitral tribunal or, if the party has already brought such a claim, orders that party to withdraw from, or to suspend, proceedings. Recently, the use of anti-suit injunctions in the context of international arbitration has been spreading at a disturbing pace. Many common law countries as well as civil law countries frequently resort to this device at a party's request in order to disrupt the arbitration process or to resist the enforcement of the award. 　　The main purpose of this study is to review the recent interpretation of the U.S. federal courts and find the implication in international commercial arbitration. 　　Anti-suit injunctions as anti-arbitration measures all raise the essential issue of whether state courts or the arbitrators have jurisdiction to decide on the validity, the scope of the arbitration agreement, and the precedence. Although the concept of anti-suit injunctions is slightly unfamiliar to researchers in a civil law country like Korea, it is necessary to cope with them considering recent globalization of commercial arbitration.