미국에서의 중재인의 권한판단권한(Competence-Competence)에 관한 고찰

Competence-competence refers to an arbitrator's power to determine whether he or she has jurisdiction to decide a controversy. Although the arbitrator's power to rule on one's own jurisdiction is generally recognized throughout the world. But, in the United States, neither the courts nor the legislature have recognized its significance or the reasoning behind its wide spread adaption. Section 3 of the Federal Arbitration Act is notorious arbitration statues for its failure to incorporate the competence-competence. In the United States, when courts rule on the issue of competence-competence, it is referred to as an issue of who decides arbitrability of the case. In the United States, the use of the competence-competence as a term of art is still limited to scholarly writings. The answer to the competence-competence inquiry is under an interpretation of section 3 of the FAA which empowers the courts to decide arbitrability issues. The Supreme Court before First Options and most commentators have interpreted sections 2 and 3 of the FAA as conferring issues of arbitrability on the federal court, including the ability to rule on the validity and scope of the arbitral agreement. Traditionally, United States courts have denied the competence-competence to arbitral tribunal. Recently, however, they have confounded rules by placing primary importance on the arbitration agreement between the parties. The Supreme Court, in a series of cases, has underscored the necessity of giving full effect to the intentions of the parties as expressed in their agreement to arbitrate. The result of the Supreme Court's emphasis on contractualism in determining the issue of arbitrability is most evident in the Court's decision in the First Options of Chicago, Inc. v. Kaplan. Under First Options, courts are to decide arbitrability issues, unless there is a clear and unmistakable assignment of these issues to the tribunal itself. The Court is appraised that it has attempted to compromise between contractual freedom in the arbitral setting and the rule of law that is necessary in a society that depends on the concept of ordered liberty. In the Court's decision in Howsam, the Court have clarified the definition of arbitrability by attempting to draw a clear line between questions of arbitrability that are to be decided by courts, and those matters that bear on the decisional allocation between courts and arbitrators but are not questions of arbitrability.