외국중재판정의 승인·집행제도의 개선방안

Recognition and enforcement of foreign arbitral awards are internationally guaranteed by the “United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards” (New York Convention). The Arbitration Act of Korea (KAA), which was substantially amended in December 1999, is modeled after the “Model Law on International Commercial Arbitration” adopted by the United Nations Commission on International Trade Law in 1985. Thanks to the amendment in 1999 Korea is now equipped with a modern arbitration act the appropriateness of which has been verified internationally. Under the KAA, an arbitration creditor who wishes to enforce a foreign arbitral award should acquire from a Korean court an enforcement decision (‘jiphaenggyeoljeong’, corresponding to German Vollstreckungsurteil), which could be rendered only after an oral hearing; on the other hand, under the German Code of Civil Procedure (ZPO) and the Japanese Arbitration Act, an enforcement decision (‘jiphaenggyeoljeong’, corresponding to German Vollstreckungsbeschluss) can be rendered without an oral hearing. In this article, the author discusses first, the concept of recognition and enforcement of foreign arbitral awards and the relationship between recognition and enforcement; secondly, the current regime of recognition of foreign arbitral awards under the KAA and the author’s suggestions to improve the current regime; thirdly, the current regime of enforcement of foreign arbitral awards under the KAA and the author’s suggestions to improve the current regime; fourthly, documents to be submitted to Korean courts for recognition and enforcement of foreign arbitral awards; and fifthly, the current regime of recognition and enforcement of foreign arbitral awards to which the New York Convention is not applicable and the author’s suggestions to improve the current regime. The most important point of improvement is that the KAA requiring an enforcement judgment (i.e., exequatur) (‘jiphaengpangyeol’) of a Korean court is too rigorous and time-consuming and therefore, should be alleviated to a regime requiring an enforcement decision (‘jiphaenggyeoljeong’). Such an enforcement decision (‘jiphaenggyeoljeong’) should be treated as a special or independent ‘gyeoljeong’, which is not subject to the rules applicable to ordinary ‘gyeoljeong’ of the Korean courts. It should also be stressed that the Korean judges who are dealing with the recognition and enforcement of foreign arbitral awards should bear in mind that in principle they are not allowed to review the merits of the case, and even where they are allowed to review the merits, the scope of review should be limited as much as possible.