2016년 개정 중재법 소고

A Critical Review on the Revised Arbitration Act 2016

In 2016, we revised the Arbitration Act again to vitalize the arbitration system by advancing the arbitration regulations to international standards to create an arbitration-friendly environment. There are some positive aspects such as easing the form requirement of the arbitration agreement, regulating the execution of interim measures, and simplifying the recognition and enforcement process, but there are some parts that need to be considered critically. First, against the draft of the Ministry of Justice, only Article 3 was revised and Article 1 was not amended. Therefore, it is not correct to assert that the arbitrability is expanded, because the application of the Arbitration Act under Article 1 is still limited to civil disputes. Secondly, it is not necessary to grant the right of plea to the parties to the negative jurisdictional decision of arbitral tribunal. Also, it is undesirable to make the arbitral tribunal that disproved his own jurisdiction to continue the arbitration proceedings. Regarding interim measures, it can be evaluated positively to specify the grounds for refusing of recognition and enforcement separately, but the nature of the interim measures should be considered when specifying the individual grounds. In particular, the grounds ‘unable to present his case’ is the result In 2016, we revised the Arbitration Act again to vitalize the arbitration system by advancing the arbitration regulations to international standards to create an arbitration-friendly environment. There are some positive aspects such as easing the form requirement of the arbitration agreement, regulating the execution of interim measures, and simplifying the recognition and enforcement process, but there are some parts that need to be considered critically. First, against the draft of the Ministry of Justice, only Article 3 was revised and Article 1 was not amended. Therefore, it is not correct to assert that the arbitrability is expanded, because the application of the Arbitration Act under Article 1 is still limited to civil disputes. Secondly, it is not necessary to grant the right of plea to the parties to the negative jurisdictional decision of arbitral tribunal. Also, it is undesirable to make the arbitral tribunal that disproved his own jurisdiction to continue the arbitration proceedings. Regarding interim measures, it can be evaluated positively to specify the grounds for refusing of recognition and enforcement separately, but the nature of the interim measures should be considered when specifying the individual grounds. In particular, the grounds ‘unable to present his case’ is the result of not considering the system of the continental law in which the ex-parte orders permitted and generalized. In addition, for a domestic award, recognition should not be required. Because the Arbitration Act explicitly provides the same effect as a final and binding court judgment. Therefore, the proviso of Article 35 is superfluous. Furthermore, it is not appropriate for the continental law to use the concept of “binding on the parties” as grounds for refusing of recognition and enforcement. The continental law already is familiar with the concept of res judicata or Rechtskraft.