공정거래사건의 중재에 의한 해결

Antitrust Cases are generally understood as cases being lack of arbitrability. In US,prevailing precedent with similar understanding was the American Safety case. In this case US Court of Appeal denied the arbitrability where the violation of antitrust law was questioned. This case law was called as American Safety Doctrine and worked as a leading case when it came to any pertaining case was up to the US Court of appeals. US Supreme Court changed the lower court precedent in Mitsubishi Motor Case. US Supreme Court said that in case of international arbitration, the arbitration clause is valid even it deals with the violation of antitrust law as condition precedent. Nowadays any damage claimed based upon the violation of antitrust laws could be dealt by any arbitration panel, whether international or domestic. This issue was rarely debated in Korea because Korean Monopoly Regulation and Fair Trade Act(MRFTA) has been enforced by Korean Fair Trade Commission publicly not by private litigations. However, recently a number of cases could be found where Courts recognized damages in the MRFTA violation cases. This means we also have to study the arbitrability damage cases where the violation of antitrust law was questioned. Under this setting, roughly speaking, damage claims baseed upon the MFFTA article 3-2(abuse of dominant market position) and article 19(the cartel regulation) could be resolved through the arbitration, if we could put the arbitrability where the violation of antitrust law issue as a condition precedent. in other words, the arbitration clause itself could be interpreted as a valid one. Article 23(unfair business practices) could be resolved through Arbitration, because the nature of these disputes are private and arbitration could work as a effective tool for resolving this type of disputes.