대한상사중재원의 2007년 국제중재규칙의 주요 내용과 그에 대한 평가
The Rules of International Arbitration for the Korean Commercial Arbitration Board of 2007 and Comments thereon
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Korea promulgated the Korean Arbitration Act (“KAA”), which took effect as from December 31, 1999. KAA is modeled after the Model Law on International Commercial Arbitration, which was adopted by UNCITRAL in 1985. The Korean Commercial Arbitration Board (“KCAB”) has the Arbitration Rules (the “Existing Rules”) that are applicable to both international and domestic arbitrations. The Existing Rules were criticized for not properly taking into consideration the characteristics of international arbitration. In response to the growing need to settle international commercial disputes by arbitration in a more efficient way, the KCAB has recently established “The Rules of International Arbitration for the Korean Commercial Arbitration Board” (the “New Rules”), which has taken effect as of February 1, 2007. The author welcomes the introduction of the New Rules, in that the New Rules have aligned the method of appointing arbitrators with the international practice and that the New Rules have substantially increased the fees of the arbitrators in order to attract more experienced and renowned arbitrators from all over the world. Introduction of the New Rules will contribute to make the international arbitration administered by the KCAB more attractive to the international business community than before. The New Rules will be also conducive to further development of the international arbitration law of Korea. However, the author criticizes the New Rules in the three basic aspects described below. First, the drafters of the New Rules do not appear to have properly considered the policy decisions that the Korean legislators had taken when enacting the KAA in 1999. More concretely, some provisions of the New Rules are in conflict with the mandatory provisions of the KAA. In addition, some other provisions have changed the policy decisions under the KAA without justifiable grounds. Secondly, allocation of the function and role among the KCAB itself, its Secretariat and the International Arbitration Committee to be established under the New Rules appear to be inappropriate. Thirdly, the definition of international arbitration under the New Rules is different from that under the Existing Rules. The author cannot think of any valid reason for such differences. Finally, the author makes comments on various provisions of the New Rules. For example, the expressions “the closing of proceedings” and “the termination of proceedings” are used in a confusing way in the Korean version of the New Rules. Moreover, there are several discrepancies between the English and Korean versions of the New Rules.
Abstract
Korea promulgated the Korean Arbitration Act (“KAA”), which took effect as from December 31, 1999. KAA is modeled after the Model Law on International Commercial Arbitration, which was adopted by UNCITRAL in 1985. The Korean Commercial Arbitration Board (“KCAB”) has the Arbitration Rules (the “Existing Rules”) that are applicable to both international and domestic arbitrations. The Existing Rules were criticized for not properly taking into consideration the characteristics of international arbitration. In response to the growing need to settle international commercial disputes by arbitration in a more efficient way, the KCAB has recently established “The Rules of International Arbitration for the Korean Commercial Arbitration Board” (the “New Rules”), which has taken effect as of February 1, 2007. The author welcomes the introduction of the New Rules, in that the New Rules have aligned the method of appointing arbitrators with the international practice and that the New Rules have substantially increased the fees of the arbitrators in order to attract more experienced and renowned arbitrators from all over the world. Introduction of the New Rules will contribute to make the international arbitration administered by the KCAB more attractive to the international business community than before. The New Rules will be also conducive to further development of the international arbitration law of Korea. However, the author criticizes the New Rules in the three basic aspects described below. First, the drafters of the New Rules do not appear to have properly considered the policy decisions that the Korean legislators had taken when enacting the KAA in 1999. More concretely, some provisions of the New Rules are in conflict with the mandatory provisions of the KAA. In addition, some other provisions have changed the policy decisions under the KAA without justifiable grounds. Secondly, allocation of the function and role among the KCAB itself, its Secretariat and the International Arbitration Committee to be established under the New Rules appear to be inappropriate. Thirdly, the definition of international arbitration under the New Rules is different from that under the Existing Rules. The author cannot think of any valid reason for such differences. Finally, the author makes comments on various provisions of the New Rules. For example, the expressions “the closing of proceedings” and “the termination of proceedings” are used in a confusing way in the Korean version of the New Rules. Moreover, there are several discrepancies between the English and Korean versions of the New Rules.
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