상사중재에서 전자적 수단을 활용한 통지 절차의 실무적 지침 마련을 위한 제언

Suggestion for Practical Guidance on Notice by Electronic Means in Commercial Arbitration

The significance of notice in arbitral proceedings is derived from the principle that an Arbitration award may be set aside if the procedural defect is such that prejudice the Respondent. This study is relevant for the field of arbitration due to its objective of providing guidance on 'Notice (written communication) by electronic means', with the aim of ensuring the effectiveness of arbitral awards. The study seeks to summarize the relevant case that has reviewed the communications between the parties to an arbitration regarding notice by email and concluded that the prejudice to the Respondent is not constitute a substantial procedural defect. Then the article provides a summary of the Korean Arbitration Act and the arbitration rules of KCAB, Korea’s sole arbitral institution. The study reviews the prior study on the requirements for delivery by email in court proceedings, to suggest requirements for notice procedures in arbitration proceedings. For the comparative legal analysis, the study will analyze the arbitration rules of foreign arbitral institutions, the 2015 Dutch Arbitration Act, The 2016 UNCITRAL ODR Technical Guidelines and “The Seoul Protocol” before recommendations are made. The recommendations for practical guidelines are divided into four sub-categories: 1) definitional provisions; 2) requirements for notice by email; 3) determination of the email address; and 4) time of receipt of the notice. Timely establishment of regulatory frameworks for electronic communications will reduce procedural ambiguities for all parties involved in arbitration, including arbitrators and the secretariat. The recommendations of this study will enable more efficient, accurate, and expeditious conduct of arbitral proceedings.