국제상사중재의 준거법 -법규범(rules of law)을 준거법으로 하는 경우를 중심으로-

In international commercial arbitration, the so called rules of law, such as the general principles of law, lex mercatoria, CISG or UNIDROIT, may sometimes be designated as the law governing the substance of the dispute. In cases where the parties agree to apply the rules of law as the governing law, although the principle of party autonomy does not prohibit parties from making such agreements, there may be some problems with making the said choices, in that ⅰ) the rules of law are often vague; and ⅱ) there may be issues which are not covered by the rules of law if the rules of law only governs a particular area. However, it must be noted that there are instances where the rules of law provide clearer provisions even when compared to the laws of some countries, and the laws of countries are not free from vagueness either. Further, where there are issues not covered by the rules of law, it is possible to resolve them by reference to logic and reason. But, because logic and reason share similarities with the general principles of law, decisions made thereunder may be problematic in that they are similar to decisions made in accordance with equity and good conscience [ex aequo et bono]. Meanwhile, if the rules of law are limited in the scope of coverage, it is deemed that the parties have only designated the governing law to the extent of the said rules of law, and that for the areas not covered by the rules of law, no governing law has been designated by the parties. In such a case, the governing law must be chosen in the same manner as how governing law is chosen in ordinary international commercial arbitrations. If the parties do not expressly agree upon the governing law, there is a dispute as to whether an arbitral tribunal may designate rules of law as the governing law. In countries which have adopted the UNCITRAL model law, there is a possibility that the provisions of the UNCITRAL model law may be interpreted in a way that arbitral tribunal must choose the laws of a particular country as the governing law as opposed to the rules of law in the absence of the parties’ consent. However, given that there may exist implied agreement between the parties in relation to the governing law in spite of their failure to reach an express agreement, it would most probably be possible for an arbitral tribunal to choose the rules of law as the governing law. Furthermore, many international arbitration rules allow arbitral tribunals to designate rules of law as the governing law if the parties fail to agree, so in cases where the parties have agreed to submit to such international arbitration rules, the provisions of the arbitration rules, as agreement of the parties, take precedence over the non-mandatory arbitration law, and the arbitration tribunal may designate rules of law as the governing law despite the parties’ failure to expressly agree. However, it is questionable whether there are significant advantages in designating rules of law as the governing law over the laws of a particular country when executing a contract, and arbitral tribunals or parties should exercise caution when either designating or agreeing to rules of law as the governing law.