중재판정 취소절차가 집행재판에 미치는 영향

In case of a foreign arbitral award, the setting aside and enforcement may be conducted in different countries. To prevent or to avoid the rendering of conflicting decisions of the courts at the seat of the arbitration and the courts asked for enforcement of an award, Article VI of the New York Convention specifies the possibility of adjournment of the decision on the enforcement of the award. It entrusts namely the enforcement court with discretion to stay or adjourn the proceedings when the setting aside proceedings are still pending in the award’s country of origin. Article VI provides the court’s discretionary power to stay or adjourn the enforcement proceedings, but not specific criteria to grant the stay or the adjournment. National court has to establish a number of factors to consider in exercising discretion. The decisive factors considered by the enforcing courts are: firstly, the purpose of petition to set aside an award, namely whether the foreign proceedings were brought in good faith or soely to hinder or delay the enforcement of the award secondly, an expected time to resolve the foreign proceedings and a reasonable chance of success to set aside thirdly, the balance of interest between the party seeking enforcement and the party opposing the enforcement. The last important thing to point out is the enforcing court has to take into account the pro-enforcement policy of the NYC. It is necessary to stipulate the possibility of stay of the enforcement proceedings in the Civil Procedure Act for the foreign arbitral award that is not subject to the NYC due to reciprocity.