증권분쟁의 소송대체적 해결방안

The United States Supreme Court's decisions established theenforceability of pre-dispute arbitration agreements in customer securitiescontracts. Because of the Supreme Court's decisions most brokerage firmsroutinely require the customers to sign agreements diverting any customer claimsto arbitration. Although courts currently hold that pre-dispute arbitrationagreements in customer securities contracts are enforceable pursuant to of theFederal Arbitration Act, congressional legislation has articulated concerns withsuch agreements. This legislation includes the Arbitration Fairness Act of 2009and the Dodd-Frank Wall Street Reform and Consumer Protection Act. Thedebate over pre-dispute arbitration agreements in the securities customer contextcenters around a variety of issues, including (1) the freedom of contract, (2) theSEC's regulatory oversight of FINRA, (3) the transparency of the FINRAarbitration process, and (4) the FINRA Customer Code's protection of customerdue process rights. The mediation has been used and studied much more than thearbitration as the ADR of securities disputes in Korea. However, the mediationhas problems such as the effectiveness of relevant mediation, how to separate a supervisory organ from the disputes mediation organization and multiplication ofthe disputes mediation organization. This Note explores activating the arbitration in securities disputes inKorea. To activate the arbitration, (1) we should make a self-regulatoryorganization governing the securities industry, (2) the customer should be giventhe unilateral right to demand arbitration, giving a customer who did not sign apre-dispute arbitration agreement, (3) Arbitrator candidates should be ineligible tobe arbitrators if they possess certain affiliations with the financial servicesindustry, (4) the arbitration should be procedurally fair to customers.