협회 해사중재의 특수성과 한국에서의 발전방향

Abstract

Specialized maritime arbitrations including LMAA arbitration in England and SMA arbitration in the U.S. are compromise of the institutional arbitration and the ad hoc arbitration. But these specialized maritime arbitrations can be handled with less arbitration cost when compared with other institutional arbitration and with reduced procedural uncertainty when compared with pure ad hoc arbitration. They have arbitration rules which minimize the intervention of the arbitration organization with the exception of the authority of the arbitration organization in appointing arbitrator[s] when the parties fail to appoint the arbitrator[s] by agreement. This article uses the term “maritime association arbitration” for these existing specialized maritime arbitrations. The maritime association arbitration in most cases handles the disputes arising out of the standardized forms which are prepared by the industry groups like BIMCO and widely used by the industry.In addition, arbitrators in the maritime association arbitration are usually key members of the association as full time arbitrators who are appointed repeatedly. They have in most cases specialized knowledge on the industry practice and the construction of the standardized forms. In many cases, the procedures in the maritime association arbitration cases are similar to those of the domestic litigation of the country where the association is located. The industry is interested in learning the outcome of the arbitration as the award contains the construction of the standardized forms, therefore in many cases the awards in the maritime association arbitration are published. As a means to promote maritime arbitration in Korea, it is necessary to prepare standardized forms which can be used in the domestic shipping industry and to form group of experts as key members of the maritime arbitration who are knowledgeable to these standardized forms. In addition, the maritime arbitration in Korea should provide more convenient and expedited way of dispute resolution mechanism to the users when compared with the foreign maritime arbitration and/or the domestic court proceeding. The arbitration proceeding can be more suitable to the maritime disputes with the following features such as parallel proceeding of the back to back disputes, interim awards dealing with the preliminary issues, removal of translation requirement of English language documents, interim measures, document only proceeding for the small claim cases, etc. Lastly, the maritime arbitration awards need to be shared in the industry in order to enhance the certainty in construction of the standardized forms.