로테르담 규칙과 국제재판관할에 관한 고찰

Abstract

To ensure uniformity of the legal regime relating to the carriage of goods wholly or partly by sea, the UN Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (hereafter, Rotterdam Rules) was created. With the issues of jurisdiction, the Rotterdam Rules have very distinguishing characteristics as below; Firstly, on one hand they encourage self-autonomy between the parties of the contract of carriage, and on the other hand, they invented some legal measures to protect the consumers by limiting lex fori to some places which have reasonable connection with the contract. Secondly, as to an exclusive choice of court agreement which is commonly incorporated in the Bill of Lading with the carriage of containerized cargoes, the Rotterdam Rules have some devices to boost the rights of entities other than the original parties to the contract. In addition, the Rotterdam Rules have several provisions pertaining to jurisdictions with 'volume contracts' and 'maritime performing parties', which are peculiar to them. The above mentioned special provisions concerning the jurisdictional issues in the Rotterdam Rules would be useful in the interpretation of Article 2 of the Korean Private International Act (hereafter, KPIA). This is true especially when we keep in mind that the interpretation of the KPIA and scholastic discussions regarding the allocation of jurisdictional power between countries should contribute to the real solution of disputes. However, the Rotterdam Rules also have several shortcomings as below; Firstly, the Rotterdam Rules exclude any chance to choose between court or a neutral forum between the parties to the contract. This is now broadly used and is very effective if the parties wish to be bound by that agreement. Secondly, only volume contracts can be written with an exclusive choice of using the court or a forum agreement under the Rotterdam Rules. Thirdly, with the issue of condition for the application of an exclusive choice of court or forum agreement in the contract of carriage to the third party, the Rotterdam Rules require so many superfluous things which can lead to a narrow application of that agreement. Additionally, since the Rotterdam Rules permit each Contracting State to decide whether they will be bound by Chapter 14 of the Rules or not, it can reduce the legal effectiveness of the Rotterdam Rules to a certain extent because there will be much disagreement as to the application of jurisdiction clauses between the Contracting States. Despite the drawbacks mentioned above, countries including the United Stats, France, and Norway have ratified the Rotterdam Rules. Even though Korea has not ratified these rules, they would probably have a far-reaching effect on the rulings of the Korean Supreme Court on matters of international jurisdiction.