중재합의의 효력에 관한 고찰

Persons who have capacity and authority for an arbitration agreement have performed the agreement to resolve disputes which can be an object of arbitration so that the agreement, a kind of juristic acts is effective. The arbitrability of the subject-matter of a dispute is an indicator of the validity of an arbitration agreement and the existence of causes for setting aside of an arbitration award. A court performs arbitration-controlling functions where the arbitrability is contested. The regal nature of an arbitration agreement is contingent upon the agreement to be a start point for arbitration or the arbitration award to be an ultimate goal of arbitration. It is necessary to grasp the regal nature from the viewpoint of an arbitration agreement itself, considering the binding power of the award, which is based on the agreement that the parties have agreed to follow the award. We should bear in mind the fact that characters of procedural law with respect to arbitration proceedings. Where an arbitration agreement is valid, the parties have to cooperate to continue the arbitration proceedings, until an arbitration award is issued or an arbitration settlement is achieved, and they must not perform any acts that may interrupt the accomplishment of the purpose of the agreement. When an action is brought in matter which is the subject of an arbitration agreement, the defendant may raise as a defense the existence of the agreement, because the agreement contains the parties’ intention to exclude the jurisdiction of a court. Where an arbitration agreement is valid, the persons who are bound by the agreement can not bring the claims which are the subject of the agreement to a court. When an arbitration tribunal has issued an arbitration award the persons who are not bound by the agreement as parties, or has issued the award on the claims which are not the subject of the agreement, the parties can bring an action for setting aside of the award. There are no provisions who is bound by an arbitration agreement and what is the subject of the agreement in the Arbitration Act. In determining the subjective and objective extent of the effect of an arbitration agreement, we should make allowances for the essential qualities of arbitration to ensure the efficient resolution of disputes on the basis of the parties’ agreement, and take caution not to infringe on the rights to be tried in court.