仲裁合意와 準據法

Abstract

Major applicable laws on arbitration beside Arbitration Act are New York Convention on the Recognition and Enforcement of Arbitral Award (1959) and UNCITRAL Model Law on International Commercial Arbitration (1985). Korea signed the afore-mentioned Convention in 1973, and Arbitration Act revised in 1999 adapted the afore-mentioned Model Law. These factors have a great influence on application and interpretation of Korean Arbitration Law. The writer does not deny this influence principally, but has some doubts whether the legal principles unfolded by scholars and precedents are fully harmonized with the established or maintained interpretations about The Civil Process Act. The writer's major assertion possibly differing with majority scholars and precedents are as follows. ① The writer is affirmative in principle about the arbitrability of dispute encompassing public interest. ② Selective arbitration clause is valid in the light of freedom of contract, and permits the commencement of arbitral proceeding without further consent of the respondent. ③ The separability doctrine of arbitration agreement does not exclude the application of the doctrine of partial invalidation. ③ The arbitral tribunal can decide the dispute without recourse to the principles of law as amicable compounders ex aequo et bono if the parties expressly authorized it to do so.