미국에서의 복수당사자 중재에 관하여

Abstract

The majority of arbitrations are conducted by a individually single procedures which have two parties and are governed by one contract with one arbitration agreement between two parties. Recently, however, arbitrations involving multiparty disputes have been increased, which arise in the context of the more complex international transaction, insurance and construction, etc. Such disputes may concern more than one contractual agreement, and one or more of those agreements may not contain arbitration clauses. Under this circumstances, the issues are whether arbitration is enforceable when no all parties to the dispute are bound to arbitrate. A party's ability to arbitrate any disputes arises from its consent as a signatory to a contract between himself and other party which includes an arbitration clause. Non-signatory to a contract with arbitral agreement, therefore, should not be bound to arbitrate any disputes without his consent to do so. But a related party that has not signed an agreement to arbitrate may be compelled or permitted to participate in an arbitration when he is found in circumstances of piercing the corporate veil, principal-agent relationship, assumption of agreement to arbitrate, or estoppel. Civil Procedure Rules permits the consolidation of litigations, joinder of parties or claims into a single procedure, and the third party's intervention to it, where common issues of law and fact exit, for reasons of economy and consistency of the judgments. Similarly, in the arbitration procedure, arbitral tribunals or courts may permit or order consolidations, joinders, or interventions with all parties's consents. The U.S. class/classwide arbitration or an arbitral class action is a hybrid procedure of class action and mandatory binding arbitration, in which any dispute is required to be resolved through an arbitration by an agreement. While the AAA has the rules for this classwide arbitration, the Federal Arbitration Act or the Uniform Arbitration Act don't provide for it at all. For the Due Process Clause of the U.S. Constitution, courts' assistances will be necessary to determine class issues for class certification, notice, adequacy of class representation, and settlement, etc.