주주대표소송의 중재가능성

Abstract

The arbitrability of derivative claims can be controversial because the statutory regime governing companies is generally considered collective and serves public interests, while arbitration is a tool for settling private disputes respecting private party autonomy. This paper argues that derivative claims should generally be arbitrable in Korea to provide a better way to resolve disputes according to the parties’ intention and for the benefit of the companies. Korean statutes do not deny the arbitrability of derivative claims, and there are no public policy grounds to prohibit derivative claims in arbitration. First, as disputes over property, derivative claims fall within the definition and scope of arbitration under Article 3(1) of the Korean Arbitration Act. Second, provisions on derivative claims in the Korean Commercial Act or other applicable corporate laws that merely assume court jurisdiction should not be interpreted as a general prohibition invalidating the parties’ clear decision to resolve the dispute in arbitration. Third, respecting the statutory requirements for a shareholder’s standing to bring a derivative claim in the jurisdiction of incorporation, the legislature’s intention to balance the interests of relevant stakeholders will be well maintained in arbitration. Lastly, as seen in other jurisdictions that accept the arbitrability of statutory corporate claims, derivative claims between shareholders and directors should be allowed in arbitration because they are essentially contractual disputes that do not necessarily engage the rights of creditors or impinge on any statutory safeguards. Moreover, for example, allowing the derivative claim under the Korean Commercial Act in arbitration, which permits claims against a relatively broad range of defendants, can resolve disputes between controlling shareholders (de facto directors) and minorities or between the joint venture partners can be resolved in a mutually beneficial way by protecting the company’s interests, ensuring damages are compensated and supporting the company’s ongoing business.