계약상 중재약정이 있는 경우 경매절차의 허용 여부 및 그 해결방안

Abstract

Seoul Maritime Arbitrators Association (The SMAA) was founded on 28 February 2018 through an inaugural assembly to resolve shipping / maritime disputes informally and voluntarily. Arbitration proceedings such as the SMAA has merits on the swift resolution of the disputes compared with the court litigation. The court auction proceedings for the ocean carried cargoes and the auction of a vessel based on maritime lien also have merits of the fast solution of matters. However, in case where the two procedures are combined, that is, if a creditor files an application for auction proceedings where a contact incorporates an arbitration clause, there is a possibility of the swift resolution’s being hindered according to the decision of the Supreme Court. The Supreme Court rendered a decision that application for an court auction proceedings is not permissible when a contract has an arbitration clause. Even though the decision was rendered in the 1980’s and 1990’s and was much criticized by many scholars and practitioners, it is still valid and legally binding. However, if we examine the decision thoroughly, we can find that the Supreme Court’s decision is logically incorrect and does not correspond with the actual practice which does not reflect the special circumstances of the international marine transportation. This article mainly examined what the erroneous points in the Supreme Court’s decision are and why the decision should be changed. In the circumstances where the establishment of the SMAA is on discussion, this article will discuss whether court auction proceedings can be permitted when arbitration clause is incorporated in a contract and whether the Supreme Court’s decision is reasonable. Further, it will be discussed whether there will be any possibile ways of prompt resolution of disputes by auction proceedings despite of the Supreme Court’s decision.