법원의 중재인선정 재판에 있어서의 심리

• 발행기관: 한국민사소송법학회
• 저자명: 현낙희
• 간행물 정보: 『민사소송』제27권 제2호, 329~369쪽, 전체 41쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2023.06.30

영문 초록

Could parties raise challenges to the existence or validity of the arbitration agreement in response to the application for judicial appointment of an arbitrator? It is an important and controversial issue and national authorities have taken different approaches. In 2020Gue633 case, according the Article 12 of the Korean Arbitration Act a party requested the court to appoint an arbitrator and the other party objected on the ground that she is not a party to the arbitration agreement. More specifically, she argued that she is not the carrier who issued the bill of lading, and therefore she is not bound by the arbitration clause in the Charter Party, which is incorporated in the bill of lading. The Supreme Court of Korea dismissed the special appeal on the lower court’s decision appointing the arbitrator, and set out a standard on what can be considered by a court requested to appoint an arbitrator. The Supreme Court has taken a limited scrutiny approach, and has ruled that court should only consider procedural issues, i.e. the written requirement of arbitration agreement or the existence of deadlock situation, and appoint an arbitrator if those are fulfilled, but should not look into substantive issues such as the existence or validity of the arbitration agreement. The limited approach the Supreme Court has taken in that case is coherent with the purpose of arbitration as well as the concept of Competence-Competence. However, the specific method it chose as a part of the limited approach could be somewhat unclear to lower courts or problematic in arbitration practice. Instead of restricting what issues can be considered, many other jurisdictions have rather limited the extent of scrutiny by ruling that courts could conduct only a prima facie review of the arbitration agreement. This will be a more flexible and practical solution, given that there can be various arguments which can be brought in relation to the arbitration agreement. It is also helpful in terms of minimizing the effect of the decision appointing the arbitrator to the future cases challenging the arbitral jurisdiction.

목차

[사안의 개요]

Ⅰ. 사실관계

Ⅱ. 사건의 경과 및 대상결정의 요지

[연구]

Ⅰ. 들어가며

Ⅱ. 법원의 중재인선정 절차 일반

Ⅲ. 중재인선정신청 사건에서의 심리대상 및 심리기준

Ⅳ. 특별항고사유 해당여부

Ⅴ. 마치며

키워드

중재인선정 중재합의 존재 및 유효성 중재관할 자기권한심사 형식적 요건 대한민국 중재법 제12조 appointment of arbitrators arbitration agreement existence and validity arbitral jurisdiction Competence-Competence formal requirement Article 12 of the Korean Arbitration Act