서식의 충돌의 국제사법상 쟁점

Parties often exchange their own standard contract forms and if the main terms and conditions are aligned, the parties may perform the contract believing that they are in an agreement. What happens, however, if there were discrepancies in the terms and conditions with regards to dispute resolution? For example, what if the two forms were different in their applicable law, jurisdiction or choice of arbitration? This paper seeks to provide a guideline for resolving conflicts arising from such battle of the forms. To resolve this issue pursuant to private international law, it is necessary to determine the governing law of each particular agreement, i.e. choice of law agreement, jurisdiction agreement and arbitration agreement. Determining the governing law of choice of law agreement can be particularly complicated when each contract form stipulates for the application of different laws. If, after interpreting parties’ intent according to private international law, it can be deduced that the parties had agreed on a particular governing law, the governing law will be decided based on such agreement. If, however, such agreement does not exist, the governing law will be determined according to objective connecting factors. Whether CISG will be applicable in certain situation will depend on numerous factors (e.g. whether the parties belong to the contracting states to CISG, whether the parties have chosen the laws of contracting states to CISG, whether the choice of law clause explicitly excludes the application of CISG). Likewise, the first step towards resolving conflict of jurisdiction/arbitration clauses is to determine the governing law of jurisdiction agreement or arbitration agreement. The intentions of the parties must then be interpreted pursuant to such governing law. If it is determined that the parties had not reached an agreement on the jurisdiction, the issue must be resolved pursuant to the rules on resolving the battle of forms adopted by the governing law; if it is determined that the parties had not reached an agreement on the arbitration, the parties shall not be able to use arbitration, and instead, the parties will need to decide on the jurisdiction according to the lex fori. Scholars and courts have often referred to the knock-out rule to resolve conflicts arising from such battle of the forms. Such solution can provide the parties with a clearer guideline and it can reduce the time and effort required to resolve such issues. Yet, since such solution may often times be incompatible with the discussions on international private law, legislative measures should be supported to adopt the knock-out rule.