國際去來에 있어서 仲裁合意의 準據法 決定에 관한 考察

A Study of Applicable Law Decision of the Arbitration Agreement in the International Business Transactions

Currently, arbitration is employed to facilitated settlement of any dispute in private law excluding resource to judical procedure. Traditional litigation is expensive and slow, and the outcome is often unpredictable. As a result, many businesses opt for alternative dispute resolution(ADR) to avoid litigation. Arbitration is one of the most common forms of ADR. In traditional litigation, a dispute is resolved by a judge or a jury. In arbitration, a dispute is resolved by one or more arbitrators selected by the parties or pursuant to a procedure on which the parties have agreed. These days, it is common drift that the party's autonomy principle is key factor in the determining the applicable law for the arbitration agreement. The applicable law in the international business transactions may be typed by governing substantive law and arbitration law. The substantive law governs the parties' substantive rights and legal duty, which mean the law that governs contract formation and performance, and the law to be applied by arbitrator. How to determine the substantive governing law may be divided into express choice and implied choice. Implied choice of law by court requires some factor relating to contracts inferring the parties' choice of law with reasonable certainty. In the world, the past twenty years of arbitration practices have been tremendous growth in the use of autonomous arbitration instead of the courtroom to resolve dispute between parties. In the contrary, Korean arbitration practices has not yet found any noted discussion pertinent to the issue of an applicable law decision of the arbitration agreement.