국제물품매매에서 중재조항 성립의 해석에 관한 고찰*

An Interpretation of the Formation of Arbitration Clause for the International Sale of Goods

UN Convention on International Sale of Goods (CISG) and International Commercial Arbitration aim at the promotion and facilitation of international trade. Both of them share similar general principles; i.e., party autonomy and pacta sunt servanda. Also they are often applied concurrently in the case of the international commercial trade. The purpose of this article is to investigate whether the CISG could apply the formation of the arbitration clause that is included in the main contract governed by CISG. Sellers and buyers have freedom of designating choice of law that is applied to their contracts. An international arbitration agreement is presumed to be separable from the contract in which it is found. However, arbitration clauses commonly form part of a general contract. Thus, the CISG is intended to be applied to dispute resolution clauses, including arbitration clause even if it is not completely suitable. Notably, there is a fundamental distinction between the CISG and arbitration. The CISG abolished the formalities of contract. New York convention requires Contracting States’ Courts to enforce written international agreements to arbitrate.