한국에서의 외국중재판정의 승인과 집행
Recognition and Enforcement of Foreign Arbitral Awards in Korea
The New York Convention(formally called "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards") done in New York on June 10, 1958 has been adhered to by more than 140 States at the time of this writing, including almost all important trading nations from the Capitalist and Socialist World as well as many developing countries. The Convention can be considered as the most important Convention in the field of arbitration and as the cornerstone of current international commercial arbitration. Korea has acceded to the New York Convention since 1973. When acceding to the Convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provisions relating to the enforcement of arbitral awards falling under the New York Convention begin at Article III. The Article III contains the general obligation for the Contracting States to recognize Convention awards as binding and to enforce them in accordance with their rules of procedure. The Convention requires a minimum of conditions to be fulfilled by the party seeking enforcement. According to Article IV(1), that party has only to supply (1) the duly authenticated original award or a duly certified copy thereof, and (2) the original arbitration agreement or a duly certified copy thereof. In fulfilling these conditions, the party seeking enforcement produces prima facie evidence entitling it to obtain enforcement of the award. It is then up to the other party to prove that enforcement should not be granted on the basis of the grounds for refusal of enforcement enumerated in the subsequent Article V(1). Grounds for refusal of enforcement are stipulated in Article V is divided into two parts. Firstly, listed in the first Para. of Article V are the grounds for refusal of enforcement which are to be asserted and proven by the respondent. Secondly, listed in Para. 2 of Article V, are the grounds on which a court may refuse enforcement on its own motion. These grounds are non-arbitrability of the subject matter and violation of the public policy of the enforcement country. The three main features of the grounds for refusal of enforcement of an award under Article V, which are almost unanimously affirmed by the courts, are the following. Firstly, The grounds for refusal of enforcement mentioned in Article V are exhaustive. No other grounds can be invoked. Secondly, and this feature follows from the first one, the court before which enforcement of the award is sought may not review the merits of the award because a mistake in fact or law by the arbitrators is not included in the list of grounds for refusal of enforcement set forth in Article V. Thirdly, the party against whom enforcement is sought has the burden of proving the existence of one or more of the grounds for refusal of enforcement. The grounds for refusal of enforcement by a court on its own motion, listed in the second Para. of Article V, are non-arbitrability of the subject matter and public policy of the enforcement country. From the court decisions reported so far at home and abroad, it appears that courts accept a violation of public policy in extreme cases only, and frequently justify their decision by distinguishing between domestic and international public policy. The Dec. 31, 1999 amendment to the Arbitration Act of Korea admits the basis for enforcement of foreign arbitral awards rendered under the New York Convention. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of the award.
저자의 다른 논문
- 1991 "국제상사중재제도(國際商事仲裁制度)의 법리(法理)와 전망(展望)에 관한 연구(硏究) -공산권국가(共産圈國家)와의 경제교류(經濟交流)에 따른 상사분쟁(商事紛爭)의 해결대책(解決對策)을 중심(中心)으로-" 仲裁學會誌 = The Korean arbitration review 1 (1): 45~108
- 1997 "대북한(對北韓) 투자분쟁(投資紛爭)의 해결(解決)에 관한 연구(硏究) - 나진·선봉지대를 중심으로 -" 仲裁學會誌 = The Korean arbitration review 7 (1): 447~469
- 1998 "신용상거래분쟁(信用狀去來紛爭)에서의 법원의 Injunction 적용기준(適用基準)" 仲裁學會誌 = The Korean arbitration review 8 (1): 323~352
- 2001 "남북분쟁 해결합의서 체결에 따른 중재협력의 과제" 仲裁學會誌 = The Korean arbitration review 11 (1): 3~35
- 2004 "ICSID의 투자분쟁 해결구조에 관한 고찰" 중재연구 = Journal of arbitration studies 13 (2): 123~156
- 2004 "남북상사중재위원회 운영의 효율화 방안 연구" 중재연구 = Journal of arbitration studies 14 (2): 3~46
- 2005 "상사분쟁 해결촉진을 위한 한-중 중재기관간 협력의 과제" 중재연구 = Journal of arbitration studies 15 (2): 61~91
- 2006 "남북한 상사분쟁의 해결에 관한 연구" 중재연구 = Journal of arbitration studies 16 (2): 3~49
- 2007 "FTA하에서의 사적 상사분쟁의 해결" 중재연구 = Journal of arbitration studies 17 (1): 3~32
- 2008 "인천경제자유구역 국제중재센터 설립 및 운영방안" 중재연구 = Journal of arbitration studies 18 (1): 121~145
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