國際商事仲裁에서 仲裁機關 선택시 고려사항 - ICC, LCIA 및 AAA를 중심으로
Considerations in Choosing an Arbitral Institution in International Commercial Arbitration
When drafting an arbitration clause, both contracting parties should be careful of inserting three factors in the clause ; the seat of arbitration, the institution of arbitration(if institutional arbitration) and the governing arbitration law. Among them, this author, focusing on the institutions, selected the most important and frequently recommended three institutions(ICC, LCIA and AAA) and examined the salient differences among their rules as follows ; First, ICC Rules, unlike the LCIA Rules and AAA International Rules, provide for scrutiny by the ICC Court of Arbitration of all awards before issuance, and they also require the parties and arbitrators to draft and to sign Terms of Reference at the outset of each case. Second, Regarding the institutional role in arbitrator appointment, even if the LCIA and AAA are also internationally-minded in their appointment practice, the ICC, with national committees throughout the world, has a widely dispersed network of information about candidates, and has extensive experienced arbitrators suitable for international disputes. Third, regarding the case administrators, the ICC has multi-lingual international lawyers, who may help the parties in communication and in the interpretations of the arbitration rules. These efficient administrators help the parties saving the expenses and time. Forth, Certain institutions like ICC, LCIA and AAA have developed good reputation over years. Expecially, the ICC, unlike other institutions, scrutinizes awards for formal completeness and adherence to its Rules, so the court would accord the awards rendered by the ICC. Fifth, the arbitration costs(including administrative costs and arbitrators fees) are usually decided by the arbitral tribunal, and its decision is reflected in the award. But both parties, according to the principles of the freedom of contract, may agree the allotment in advance. This paper introduces the model clauses, reflecting several types of allotment, which would be added to the arbitration clauses with the agreement between parties. Finally, this paper emphasized the importance of the choice of institution in relation to the choice of the seat of arbitration. Expecially for the disputes about intellectual property right or domain names, WIPO and ICANN are recommendable respectively, as the confidentiality should be kept. Therefore, when both parties choose the institution they should be kept in mind the above mentioned points for the fair award and its enforcement.
유료 다운로드의 경우 해당 사이트의 정책에 따라 신규 회원가입, 로그인, 유료 구매 등이 필요할 수 있습니다. 해당 사이트에서 발생하는 귀하의 모든 정보활동은 NDSL의 서비스 정책과 무관합니다.
원문복사신청을 하시면, 일부 해외 인쇄학술지의 경우 외국학술지지원센터(FRIC)에서
무료 원문복사 서비스를 제공합니다.
NDSL에서는 해당 원문을 복사서비스하고 있습니다. 위의 원문복사신청 또는 장바구니 담기를 통하여 원문복사서비스 이용이 가능합니다.
- 이 논문과 함께 출판된 논문 + 더보기