중재절차에서 이의신청권과 이의신청권의 포기에 관한 연구

Article 5 of the Arbitration Act provides that a party waives its right to object to non-compliance with either non-mandatory provisions of the Act or with the parties’ arbitration agreement when that party is aware of the non-compliance and proceeds with the arbitration without timely stating an objection. Therefore, arbitral proceedings that have not complied with either the Act or the parties’ agreement and an objection to such non-compliance is deemed to have been waived are treated as being in accordance with the Act and the parties’ agreement. As a result, arbitral awards following such proceedings may not be set aside or refused recognition and enforcement. However, Article 5 applies only to non-mandatory provisions. Arbitral awards following proceedings that were not in compliance with mandatory provisions may be set aside or refused recognition and enforcement—even if one of the parties did not state an objection. This article proposes criteria to distinguish non-mandatory provisions in the Act from mandatory provisions. Applying this criteria, conclusions were drawn as to certain provisions in the Act as being either non-mandatory or mandatory. These provisions were broadly construed as being non-mandatory; however, it could be asserted that due process would not be achieved under this criteria. However, this assertion could be difficult to accept because public policy ultimately determines whether arbitral awards should be set aside or enforced when the right to object is deemed to have been waived.