국제분쟁해결의 맥락에서 본 국제상사중재

Abstract

The author discusses in this paper various issues of international commercial arbitration,recognizing similarities and differences among the three areas of dispute settlementmechanism involving international business transactions, i.e., (i) the disputesettlement procedures under the Understanding on Rules and Procedures governingthe Settlement of Disputes (“DSU”) in the context of the WTO Agreements or thevarious Free Trade Agreements, (ⅱ) the dispute settlement procedures under theICSID Convention or the various Free Trade Agreements, and (ⅲ) the internationalcommercial arbitration. More concretely, the author deals with the following issues:preliminary matters (Chap. Ⅱ.), commencement of the procedures (Chap. Ⅲ.), arbitraltribunal (Chap. Ⅳ.), pre-hearing procedures (Chap. Ⅴ.), hearing (Chap. Ⅵ.), arbitralawards (Chap. Ⅶ.) and challenging against, and enforcement of, arbitralawards (Chap. Ⅷ.). This paper has been prepared as part of the joint research projectof the Legal Research Institute of Seoul National University, entitled“Comparative Research of the Procedures of the International Trade Disputes, theInvestment Arbitration and the Commercial Arbitration.” While the WTO Agreementand the ICSID Convention clearly constitute the principal norms regulating the internationaltrade dispute settlement procedures and the investment arbitration, respectively,there are no comparable international uniform norms for the commercialarbitration. Thus, the author focuses on the Korean Arbitration Act as the representativeof national arbitration acts. This could be justified since the Korean ArbitrationAct has been modeled on the UNCITRAL Model Law on International CommercialArbitration of 1985. When necessary, reference is also made to national arbitration acts of France, the U.K. and the U.S. The results of the research show (i) that thereare big differences between the international trade dispute settlement procedures, onthe one hand, and international investment arbitration and international commercialarbitration, on the other, and (ii) that the international investment arbitration and theinternational commercial arbitration share many common features, and in particularthe non-ICSID arbitration comes very closer to the international commercialarbitration. Whereas the norms regulating the international trade dispute settlementprocedures and the international investment arbitration could be substantially unifiedthanks to the DSU and ICSID Convention, respectively, the norms regulating internationalcommercial arbitration could be harmonized to a modest degree, apart fromthe United Nations Convention on the Recognition and Enforcement of ForeignArbitral Awards of 1956, which has been very successful. At present, it is difficultto clearly identify the elements of the international trade dispute settlement proceduresand the investment arbitration, which we may consider importing to the commercialarbitration to improve the current situation. Each of the three areas of internationaldispute settlement procedures is expected to continue to develop in the futurewhile exercising reciprocal influences on the others. Some divergences as wellas convergences of the procedures and norms applicable to the three areas are expectedto emerge in the future. Therefore, we need to closely monitor the futuredevelopment.