合理的 契約書 作成을 통한 國際 비즈니스 紛爭의 效率的 解決 : 仲裁를 中心으로

Abstract

Commercial arbitration, privatization of dispute resolution by autonomy and parties participation to customize the process, may bring economic efficiency. At the time of drafting on international business contract, if parties try to make well arranged pre-dispute arbitration clauses and if they make up the deficiency of arbitration with other contractual measures, they would resolve their possible dispute through commercial arbitration. On the contract, the parties make sure that arbitrators should be experts in the international business area. Owing to the expertness of arbitrator, the parties do not need the assistance of lawyer, which reduce the cost of international commercial arbitration. Even in the process of arbitration, an arbitrator should take indispensable discovery procedure for forensic evidence. To make up the arbitration in the situation of the difficulties of proof of loss and the inconvenience or nonfeasibility of otherwise obtaining an adequate remedy, liquidated damages and money penalty may be agreed upon by both parties to an international business contract upon which the breaching party will pay to the other. Under the domestic law for the public policy, we should do balancing test between the efficiency of arbitration and fairness of that. The enforcement of arbitration contract should not be disturbed by the public policy. Also, we should consider the consistency and security of international business transaction which may be hurt by the domestic rule. However, the public policy law is necessary to fix the contract provisions which were obtained by improper means, such as misrepresentation, duress, corruption or undue influence, and to take balance between an extremely dominant party and a weak party. Each party should not insist unilaterally favored clause, which would increases the cost of transaction and drafting contract.