국제 전자상거래 분쟁해결을 위한 절차규칙에서 중재의 특수성과 사전중재합의의 효력

The arrival of the Internet and subsequent development of information and communication technology(ICT) achieved a historic breakthrough in a consumer transaction method, driven by this ‘borderless’ nature of the cyberspace, which was created and has expanded the unmeasured virtual market across the world since the mid 1990s. Since E-commerce is usually engaged in small value/high volume transactions between retail or medium-size enterprises(B2B) or vendors and customers(B2C), not only the traditional dispute mechanism such as litigation organized by court, but also typical alternative dispute resolutions are inefficient or unavailable to settle dispute arising online. There has been a broad consensus on urgent necessity of an effective and creditable dispute resolution system designed to speed up the low-cost precess through online on a global basis. In this context, the United Nationals Commission on International Trade Law(UNCITRAL) established Working Group III(WG III) to set up the framework of Online-ADR(ODR) system at the 22nd meeting held Nov. 2010, in consideration of the requirement of a time-saving and cost-effective process and consumer protection. WG III sets up the four-phase development plan to produce instruments for ODR and the draft procedural rules have been proposed as initial step, which forms a three stage approach towards settling disputes, negotiation through automated system, facilitated settlement and arbitration as essential structure of the procedural rules. Although considerable progress has been achieved over the previous sessions, there still remain diverse controversial issues to be fine-tuned for harmonization and integrity, including the applicability of arbitration as the final and binding phase in terms of the consumer protection. In other words, there is significant inconsistency between the views of member states on the validity of pre-dispute arbitration agreements to use the ODR process where consumers are involved. In particular, EU and most EU members which put top priority on the consumer protection have clear and strict principle on prohibition of pre-dispute agreement; on the other hand, other members such as the US, Israel, and Czech argue in favor of the need for an arbitration stage to be part the process. The aim of this essay is to analyze the significance of arbitration phase as the final stage of the ODR system and the validity of pre-dispute agreements. For this analysis, I will review relevant regulations and directives of EU and track case law and examples in practices formulated by the US. federal court. Subsequently, a wide-ranging debate which revolves around the pre-dispute agreements in Korea is examined, focusing on consumer protection, in order to draw in-depth discussion on applicability of the ODR system in our legal framework.