국제상거래계약에서의 준거법선정실태에 관한 연구

Applicable Law in the International Commercial Transaction : Special Emphasis on Decisions decided by Arbitral Tribunals and Courts

This study is to analyse the behavior of Arbitral Tribunal and national courts in selecting applicable rule of law for the settlement of International Commercial disputes. For this study, 13 cases randomly selected from UNILEX database are carefully explored. The analyzed cases are decided by ICC International court of Arbitration (3 cases); Russian Arbitration Tribunal (4 cases); Belarus Supreme Court (1 case); Ukrainian Arbitration Tribunal (1 case); Chinese Arbitration Tribunal (1 case); Swedish Stockholm Arbitration Tribunal (1 case); Swiss Lausanne Arbitration Tribunal (1 case) and Ad hoc Arbitration (1 case but place unknown). These decisions can be classified into three types based on the their political, social and economic situations as follows: ① Group A: ICC International Court of Arbitration which has been exposed to Capitalistic Principles of market operation, ② Group B: Russian Arbitral Tribunal, Belarus Supreme Court, Ukrainian Arbitral Tribunal, and Chinese Arbitral Tribunal, which have not been well accustomed to capitalistic market principles, as remained for a long period of time in the socialistic society, and ③ Group C: Swedish Stockholm Arbitral Tribunal, and Swiss Lausanne Arbitral Tribunal which have been capitalistically oriented in their business operation and most industrialized in the North Europe. It is noted that Group A and Group C have maintained international character in its application of CISG in the view of promoting uniformity and the good faith in international trade. With respect to Group B, it is found that they seem, at first place, like to review their own country's domestic law and later on, international instrument such as CISG and/or PICC, deviating from basic characteristics of CISG. In that respect, it is suggested that national courts and arbitral tribunals need to understand international characteristics of CISG, enhancing uniformity in its application.