비서명 회사에 대한 중재합의의 구속력 - 독일 연방대법원 2023년 3월 9일자 결정을 중심으로

Study on the Binding Effect of an Arbitration Agreement on a Non-Signatory Company

In 2023, the BGH(Bundesgerichtshof) in Germany held that, with respect to the binding effect of an arbitration agreement on a non-signatory company, the subjective scope of the arbitration clause is limited to the contracting parties and their successors, and even if a company in a Konzern relationship, it is not bound by the arbitration agreement unless it is a signatory to the arbitration agreement. With this decision, the BGH follows the traditional position on the subjective scope of arbitration agreements, but does not fully reflect the current practice of arbitration in business transactions. Today's commercial contracts are more diverse than in the past, and in the context of multinational corporations or group relationships, it is not uncommon for one company to be deeply involved in the contract but not to sign the arbitration agreement for one reason or another. In light of this reality, a more flexible approach to determining the existence of an intention to arbitrate is required than denying the binding effect of an arbitration agreement solely on the basis of non-signature. Rather than relying too heavily on the written or formal signature to determine the intent to arbitrate, it is important to realize that the intent to arbitrate can exist in many different ways and forms. As there is a practical need to recognize the binding effect of an arbitration agreement on a non-signatory company, the group of companies doctrine, which has been developed in ICC arbitration practice and French jurisprudence, will be a useful reference to resolve this issue. The binding effect of an arbitration agreement on a non-signatory company will be recognized if the circumstances of the non-signatory company's intention to arbitrate can be ascertained. In particular, if the non-signatory company was actively involved in the preparation or performance of the contract containing the arbitration clause or arbitration agreement and both parties considered the non-signatory company as a party to the contract, the subjective effect of the arbitration agreement may be extended to the non-signatory company.