한중 중재판정부의 사실인정 및 법률적용에 있어서의 권한

The Powers and limitation of Arbitral Tribunal on the determination of fact and the application of law

Arbitration is usually recognized as one of the Alternative Dispute Resolutions (ADRs). Arbitral Tribunal can make a final award without mutual concession. In that point, Arbitration is different from other ADRs, for example, Composition and Conciliation that need mutual concession. While the Arbitration law of China distinguishes domestic arbitration from international arbitration, the Arbitration law of Korea doesn’t. According to the Arbitration law of China, the people’s court may issue a ruling of not carrying the execution after finding that the following circumstances are found in the award of a domestic arbitration; (1) the crucial evidence is found to be insufficient, and (2) the application of the law is found to be erroneous. That’s not applicable to the international arbitration. However, according to the Arbitration law of Korea, Arbitral Tribunal can determine the admissibility, relevance, and weight of evidence, but shall decide the dispute in accordance with such rules of law as are chosen by the parities as applicable to the substance of the dispute. Either party may apply for cancellation of the arbitral award, if he has evidences to substantiate that the application of the law is erroneous. In my opinion, the division of domestic arbitration from international arbitration is good like the Arbitration law of China, but the Arbitration law of China goes too far for a people’s court to review the arbitral award on a substantive basis.