
ICSID 협약 제52조의 계약상 포기에 관한 연구
A Study on the Contractual Waiver of Article 52 ICSID Convention
- 김용일(Yong-Il Kim) 홍성규(Sung-Kyu Hong)
- 한국중재학회
- 중재연구
- 제28권 제1호
- 등재여부 : KCI등재
- 2018.03
- 3 - 26 (24 pages)
This article examines whether parties may agree to contractually waive the right to bring annulment proceedings. Alternately it looks at whether certain grounds of annulment may be waived. The ability for parties to resolve this issue contractually by waiving this element of Article 52(1)(b) ICSID offers a potentially powerful solution. For parties to agree beforehand to the circumstances where tribunals have not ‘manifestly exceeded their power’ could allow them to remove the unpredictability of annulment on this foundation. Even in the event that an ad hoc committee is against the validity of waiver, it may be possible for a party to frame this restriction as an interpretative agreement by the parties rather than strictly as waiver of a ground of annulment. Ultimately, the wish to enter into such an agreement would likely only be driven by a few exceptional commercial need or prior negative experience with the remedy of annulment. In that cases, and depending on the nature of the specific concern with annulment, a limited waiver or interpretative agreement on certain Article 52(1) ICSID grounds may certainly be appropriate.
Ⅰ. 서 론
Ⅱ. 계약상 포기의 제안사유
Ⅲ. 계약상 포기의 유효성
Ⅳ. 계약상 포기에 관한 실무상 쟁점
Ⅴ. 결 론