국제중재판정의 취소사유의 확장 또는 제한 -법원에 의한 본안의 심사와 관련하여- (Expansion and Limitation of the Grounds for Setting Aside International Arbitral Awards -With regards to the Judicial Review on the Merits-)

서지정보

· 발행기관 : 국제거래법학회
· 수록지 정보 : 국제거래법연구 / 21권 / 2호 / 181 ~ 199페이지
· 저자명 : 이호원

초록

On international arbitration, it is generally admitted that arbitral awards may be set aside only in the State where the award was rendered. However, the grounds for setting aside arbitral awards differ from State to State. A considerable number of countries have adopted, in varying degrees, the grounds for setting aside arbitral awards laid down in the UNCITRAL Model Law on International Commercial Arbitration. On the one hand, countries such as the U.S. and the U.K.
expanded the grounds for setting them aside and permitted judicial review on the merits of arbitral awards. On the other hand, States such as France and Belgium strictly limited the grounds for, or even eliminated the possibility of, setting aside arbitral awards. The problem occurs mainly in the States where judicial review on the merits is allowed either by legislation as in the U.K., by case law as in the U.S., or by agreements of the parties to expand the grounds for setting aside.
There is a view that judicial review on the merits of arbitral awards prevents arbitrary awards and, therefore, is a reasonable supervisory means in the arbitral process. However, there also exists a view that judicial review is against the will of the parties who sought the decision by the arbitral panel, not by the court, and delays the resolution of the disputes. This debate is not to be decided theoretically, as the actual outcome might differ depending on the State where enforcement or cancellation of arbitral awards is sought.
All things considered, it should be noted (i) that it is necessary to watch the legislation and cases of many States on this issue carefully, (ii) that it is desirable to avoid expansion of the grounds for setting aside arbitral awards by agreements of the parties, and (iii) that in cases where the jurisdiction of arbitral panel or public policy matters, judicial review on these issues might be unavoidable.

영어초록

On international arbitration, it is generally admitted that arbitral awards may be set aside only in the State where the award was rendered. However, the grounds for setting aside arbitral awards differ from State to State. A considerable number of countries have adopted, in varying degrees, the grounds for setting aside arbitral awards laid down in the UNCITRAL Model Law on International Commercial Arbitration. On the one hand, countries such as the U.S. and the U.K.
expanded the grounds for setting them aside and permitted judicial review on the merits of arbitral awards. On the other hand, States such as France and Belgium strictly limited the grounds for, or even eliminated the possibility of, setting aside arbitral awards. The problem occurs mainly in the States where judicial review on the merits is allowed either by legislation as in the U.K., by case law as in the U.S., or by agreements of the parties to expand the grounds for setting aside.
There is a view that judicial review on the merits of arbitral awards prevents arbitrary awards and, therefore, is a reasonable supervisory means in the arbitral process. However, there also exists a view that judicial review is against the will of the parties who sought the decision by the arbitral panel, not by the court, and delays the resolution of the disputes. This debate is not to be decided theoretically, as the actual outcome might differ depending on the State where enforcement or cancellation of arbitral awards is sought.
All things considered, it should be noted (i) that it is necessary to watch the legislation and cases of many States on this issue carefully, (ii) that it is desirable to avoid expansion of the grounds for setting aside arbitral awards by agreements of the parties, and (iii) that in cases where the jurisdiction of arbitral panel or public policy matters, judicial review on these issues might be unavoidable.

참고자료

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