국제상사중재와 국제소송의 경합

According to Article 3, subparagraph 2 of Arbitration Act, the term “arbitration agreement” is defined as as an “agreement between the parties to settle, by arbitration, all or some disputes which have already occurred or might occur in the future with regard to defined legal relationships, whether contractual or not.”It has become more common in international commercial arbitration cases for the respondent to seek a strategic advantage by filing a competing action in a foreign country, effectively disavowing its agreement to arbitrate. If the action is instituted in the same jurisdiction where the arbitration is pending, the party seeking to arbitrate may ask the court to stay the litigation and compel arbitration. In accordance with Article 9 paragraph 1 of the Arbitration Act, a court before which an action is brought in a matter which is the subject of the arbitration agreement shall dismiss the action when the respondent present an affirmative defense for the existence of the arbitration agreement. But litigation usually is commenced in a country outside the jurisdiction where the arbitration is proceeding. When that happens, the best course of action for the party seeking to enforce the agreement to arbitrate may be to petition a court with jurisdiction to issue an order enjoining the parties from continuing with the foreign lawsuit--an“anti-suit”injunction because lis pendens doctrine is not used to block the commencement of a lawsuit in a foreign country per se. This Article deals with the parallel proceedings before a national court and an international commercial arbitration tribunal. In this regard, this Article fully explains anti-suit injunction, anti-arbitration injunction, pro-arbitration injunction, and their related action to seek damages from the perspective of a comparativist. In Conclusion, this Article enumerates their implications in the Korean law.