2016년 중재법에 따른 국내중재판정의 효력, 취소와 승인 · 집행에 관한 법리의 변화

Abstract

The Arbitration Act of 1966 of Korea was first substantially amended in 1999, following Korea’s adoption of the Model Law on International Commercial Arbitration, which was prepared in 1985 by the United Nations Commission on International Trade Law (UNCITRAL). The Arbitration Act of Korea was further amended in 2010, and again in 2016, which took effect on November 30, 2016 (hereinafter “Arbitration Act of 2016”). In this article, among the changes brought by the 2016 amendment, the author mainly deals with the following issues: effect, setting aside, and recognition and enforcement of arbitral awards. More concretely, the issues are discussed in the following order: First, the amendment of Article 35 on the effect of arbitral awards (Part Ⅱ). Second, the introduction of “enforcement decision regime” for the execution of arbitral awards (Part Ⅲ). Third, the loosening of document requirements to be submitted for recognition and enforcement of arbitral awards (Part Ⅳ). Fourth, the relationship between the setting aside procedures and the enforcement decision procedures (Part Ⅴ). Fifth, the issues resulting from the introduction of enforcement decision regime (Part Ⅵ). The proviso of Article 35 is desirable in that it removes the conflict between Articles 35 and 38, concerning the effect of arbitral awards subject to grounds for setting aside. In the past, under the previous Arbitration Act, the arbitral awards subject to grounds for setting aside (which are almost identical to grounds for refusal of enforcement) had the same effect as final and binding court judgments, unless the awards have been actually set aside. However, under the Arbitration Act of 2016, those arbitral awards do not have the res judicata effect, even if they have not been set aside by the courts. This means that so far as the effect of domestic arbitral awards is concerned, Korea has broken up with the German law regime by adopting the Model Law regime. The adoption of “the enforcement decision (kyuljeong) requirement” under Article 37, which replaces “the enforcement judgment (pangyul) requirement” is appropriate, since changing to decision procedures, which are less burdensome than judgment procedures, can contribute to the speedy settlement of disputes involving execution of arbitral awards. However, simply amending the law is not enough. It is equally important that Korean courts sympathize with the objectives of the amendment and make efforts to implement those changes in their practices. In the past, the setting aside procedures could be consolidated with the enforcement judgment procedures. However, since such consolidation is no longer permitted under the Arbitration Act of 2016, the relationship between the two procedures needs further improvement to ensure efficient resolution of disputes. Finally, the issues resulting from the introduction of ‘enforcement decision regime’ need to be scrutinized thoroughly. The issues dealt with in this article are primarily related to the interpretation of the Arbitration Act, but some are closely related to the civil procedure law doctrines. Therefore, Korean civil procedure law scholars should pay more attention to the Arbitration Act of 2016 as well. The author hopes that there will be more lively discussions on the Arbitration Act of 2016 in the future.