선택적 중재조항에 대한 소고

Clearly there are aspects that optional arbitration clause is not valid in the side of the nature of the arbitration itself. And it more or less implies the possession of the problems in terms of ensuring legal stability. And giving one party the right to choose the forum is unfair and may offend public policy. Asa result, using an optional arbitration clause may increase the risk of a courtrefusing to give effect to an arbitration agreement, by taking jurisdiction over adispute or by refusing to enforce an award. The problem lies in the fact that the optional arbitration clause is usedespecially in government contract. If we deny the validity of the optionalarbitration clause in government contract, we can face the issue of validity ofthe contract itself in reality, so it is practically inevitable that we need to interpret it as a valid direction. On the one hand, it should be considered that it leads the consequences ofthe limit of the access to the arbitration, if we do not allow a arbitrationclause. But logical development to admit the validity of the optional arbitrationclause is also possible not just by policy reasons, but also by theory. Even though the arbitration agreement itself is selected with litigation, we can recognize the validity of the optional arbitration agreement by widely admitting the arbitration agreement, in the condition that it does not require only exclusivearbitration agreement is valid in the Arbitration Act. Since arbitration is the product of the exercise of contractual freedom, parties will naturally be inclinedto make the process fit their predilections. So the issue is how we can constrain the economically stronger party not to use that freedom to their advantage. It is resonable that the parties' freedom should be circumscribed when maintenance of arbitration as a socially acceptable form of dispute resolution for both parties sorequires. Thus, even though the optional arbitration clause is inserted in agovernment contract, it is considerable that it implies the first principle of arbitration is perceived in the optional arbitration clause. The court should be contributing to activation of arbitration, if possible, by inducing to arbitration when the case containing the optional arbitration clause is filed. To be on the safe side, parties should investigate whether such unilateraloptional arbitration clauses are valid under (a) the law at the seat of thearbitration, (b) the law governing the arbitration agreement, if different, and (c) the law at the place where enforcement is likely to be sought. In any event, optional clauses need to be drafted with care, to ensure it is clear how, when and by whom the option may be exercised, to avoid apathological clause.