취소된 외국중재판정의 집행가능성에 관한 연구

The purpose of the New York Convention is to promote arbitration and to facilitate the enforcement of arbitration awards. Although the objectives of the Convention are clear, some of its language is ambiguous. One ambiguity in particular has provoked intense debate. Article V of the Convention prescribes the grounds for denial of recognition and enforcement of foreign arbitral awards. Subsection (1)(e) of Article V states that a country may refuse to recognize and enforce an award only on specified grounds. One such ground is annulment of the award by a court of the country in which, or under the law of which, the award was made. Tension exists between Article V(1)(e) and Article VII, which provides that a foreign arbitral award is enforceable to the full extent of the law of the country in which enforcement is sought. The issue is how to reconcile these two provisions. In part II, this paper discusses the effects of the annulment of arbitral awards. Here it will explore the merits and demerits of the territorial and the delocalized approaches, with the conclusion that the delocalized approach should be adopted. In agreement with the delocalized approach,it argues that the country of origin should be divested of its power to annul an award while allowing the country whose law governed the arbitration to retain annulment power. If the parties chose no national law to govern their dispute, no country would have the authority to set aside the award. In part III, it examines the Convention, analyzing its text and legislative history. concluding that the Article VII, being a mandatory provision,should be given priority over the Article V which is a discretionary provision. In part IV, it analyzes the three U.S. decisions that have interpreted Article V(1)(e) and VII of the New York Convention, criticizing their holdings based on the above discussions. In conclusion, this paper proposes that the court of the country in which enforcement is sought be given wider discretion in determining whether a foreign arbitral award which was annulled by another country should be enforced.