우리나라에서 외국중재판정의 승인과 집행에 관한 고찰

Abstract

In the approaching 21th century, the outstanding development in international trade and commerce has established arbitration as the preferred form of dispute resolution on international business transaction. Because the form of commercial dispute becomes more complicated and varied with the quantitative increase of them, the reasonable and rapid settlement of them must be the important problem simultaneously. In this article, the author discusses various issues on the recognition and enforcement of an foreign arbitral awards under Korean Arbitration Act, which is modeled after the Model Law on International Commercial Arbitration of the UNCITRAL of 1985. The Dec. 31, 1999 amendment to the Korean Arbitration Act admits the basis for enforcement of foreign arbitral awards rendered under United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958(commonly known as the New York Convention). Korea has acceded to the New York Convention since 1973. When acceding to the convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of anther Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provision relating to the enforcement of arbitral awards falling under the New York Convention consists of Article Ⅲ, Ⅳ, Ⅴ. In particular, Article Ⅴ of the New York Convention) enumerates the grounds for refusal of recognition foreign arbitral awards. The grounds are separated into two categories : One that abides by procedures and the others are based on national legal sovereignty. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of awards. Because Korea requires enforcement to be based on a judgement, the result is that arbitral of award holders are forced to institute domestic litigation.