영국법상 상계제도와 영국법이 적용되는 채권의 상계와 관련한 국내법상의 문제

This article discusses issues surrounding set-off of claims governed by English law. Set-off is important because the requirements and the effects of set-off under English law are different from those under Continental law, and English law governs a substantial number of contracts entered into in Korea. Several types of set-off exist under English law, such as independent set-off, which will be discussed in connection with forum regit processum because this set-off is classified as procedural law in England. This article begins with an overview of set-offs under English law. Following this overview, an issue of conflict of laws will be discussed; in particular, when claim and counterclaim of set-off are governed by laws of different countries and a problem arises as to ‘which law shall be applied to the set-off.’ However, we can easily conclude that the governing law of the contract also becomes the governing law of the set-off, provided the claim and the counterclaim arise from the same contract. Finally, this article discusses the followings: whether independent set-off will also be applied in court proceedings in Korea when English law governs set-off, whether set-off is available when claim is attached, and lastly which law shall be applicable to set-off in insolvency proceedings.