중재합의상 준거법 지정이 없는 경우에 영국에서의 해당 준거법의 결정에 관한 연구

• 영문명: A Study on the Determination of the Applicable Law in the UK when there is no Designation of the Applicable Law in the Arbitration Agreement
• 발행기관: 한국무역연구원
• 저자명: 김서림(Seo-Rim Kim)
• 간행물 정보: 『무역연구』제17권 제6호, 159~179쪽, 전체 21쪽
• 주제분류: 경제경영 > 무역학
• 파일형태: PDF
• 발행일자: 2021.12.31

영문 초록

Purpose The purpose of this study aims to analyze the determination of the governing law in the UK when there is no designation of the governing law in the arbitration agreement in Enca v. Chubb. Design/Methodology/Approach In order to analyze Enca v. Chubb, this study adopts a literature analysis that analyzes various precedents on the determination of the governing law. Findings The UK Supreme Court determined the law governing the underlying contract by applying the closest connection test. Since there was no choice of law governing the contract, the law governing the arbitration agreement had to be determined by applying the closest connection test, and in that regard, London, as the seat of arbitration, was considered a close connection in that determination. Accordingly, English law was determined as the law governing the arbitration agreement, and although the UK Supreme Court adopted different reasoning, it upheld the anti-suit injunction passed by the UK Court of Appeal. Research Implications The Supreme Court’s decision provides much-needed clarification regarding the English legal approach to determining the governing law of an arbitration agreement. Although the majority ultimately upheld the Court of Appeal’s decision, it did so by a taking a different route and affirmed the choice-of-law approach previously set forth by authorities. The Supreme Court also displayed remarkable sensitivity to the provisions of the New York Convention, and demonstrated admirable receptivity to international authorities, with both the majority and dissents relying on an expansive range of international commentary and judicial decisions

목차

Ⅰ. 서론

Ⅱ. 중재절차 준거법의 지정

Ⅲ. 중재절차금지명령상의 소송금지명령

Ⅳ. 사건의 분석

Ⅴ. 결론

키워드

Anti-Suit Injunction Arbitration Agreement Governing Law New York Convention