<특집: 국제통상, 투자, 상사 중재/분쟁해결절차의 비교 연구> : 국제분쟁해결의 맥락에서 본 국제상사중재 = International Commercial Arbitration from the Viewpoint of International Disputes Settlement

다국어 초록 (Multilingual Abstract)

The author discusses in this paper various issues of international commercial arbitration, recognizing similarities and differences among the three areas of dispute settlement mechanism involving international business transactions, i.e., (i) the dispute settlement procedures under the Understanding on Rules and Procedures governing the Settlement of Disputes (“DSU”) in the context of the WTO Agreements or the various Free Trade Agreements, (ⅱ) the dispute settlement procedures under the ICSID Convention or the various Free Trade Agreements, and (ⅲ) the international commercial arbitration. More concretely, the author deals with the following issues: preliminary matters (Chap. Ⅱ.), commencement of the procedures (Chap. Ⅲ.), arbitral tribunal (Chap. Ⅳ.), pre-hearing procedures (Chap. Ⅴ.), hearing (Chap. Ⅵ.), arbitral awards (Chap. Ⅶ.) and challenging against, and enforcement of, arbitral awards (Chap. Ⅷ.). This paper has been prepared as part of the joint research project of the Legal Research Institute of Seoul National University, entitled “Comparative Research of the Procedures of the International Trade Disputes, the Investment Arbitration and the Commercial Arbitration.” While the WTO Agreement and the ICSID Convention clearly constitute the principal norms regulating the international trade dispute settlement procedures and the investment arbitration, respectively, there are no comparable international uniform norms for the commercial arbitration. Thus, the author focuses on the Korean Arbitration Act as the representative of national arbitration acts. This could be justified since the Korean Arbitration Act has been modeled on the UNCITRAL Model Law on International Commercial Arbitration of 1985. When necessary, reference is also made to national arbitration acts of France, the U.K. and the U.S. The results of the research show (i) that there are big differences between the international trade dispute settlement procedures, on the one hand, and international investment arbitration and international commercial arbitration, on the other, and (ii) that the international investment arbitration and the international commercial arbitration share many common features, and in particular the non-ICSID arbitration comes very closer to the international commercial arbitration. Whereas the norms regulating the international trade dispute settlement procedures and the international investment arbitration could be substantially unified thanks to the DSU and ICSID Convention, respectively, the norms regulating international commercial arbitration could be harmonized to a modest degree, apart from the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1956, which has been very successful. At present, it is difficult to clearly identify the elements of the international trade dispute settlement procedures and the investment arbitration, which we may consider importing to the commercial arbitration to improve the current situation. Each of the three areas of international dispute settlement procedures is expected to continue to develop in the future while exercising reciprocal influences on the others. Some divergences as well as convergences of the procedures and norms applicable to the three areas are expected to emerge in the future. Therefore, we need to closely monitor the future development.