중재합의의 준거법과 주관적 중재적격성-동진쎄미켐중재사건을 중심으로-

This case is regarding an arbitration agreement at a Stock Purchase Agreement between a California company and a Korean company where it was agreed the law of California State as the governing law and any disputes thereunder to be resolved by arbitration at the American Arbitration Association. A president of the California company, a Korean national, was added to the dispute. In the US, as to the governing law of the arbitration agreement, the formation and validity thereof is governed by the state law applicable to the contract formation, in this case, the California law. In California, acceptance to an offer can be communicated with effect, only by some act or omission of the party contracting, by which he intends to communicate it, or which necessarily tends to such communication. An offer is revoked by (a) by the communication of notice of revocation by the offeror to the other party, before his or her acceptance has been communicated to the former, (b) by the lapse of the time prescribed in the offer for its acceptance or, if no time is prescribed, the lapse of a reasonable time without communication of the acceptance. Performance of the conditions of an offer, or the acceptance of the consideration contained in the offer, is an acceptance of the offer. An offeree’s power of acceptance is terminated when the offeror takes definite action inconsistent with an intention to enter into the proposed contract and the offeree acquires reliable information to that effect. Rejection of an offer can also be made either explicitly or implicitly. The US Federal Arbitration Act and the federal substantive common law are broadly applied by the courts in the US including to the issue whether a third party is bound by an arbitration agreement, i.e., the issue of subjective arbitrability. In this case, the dispute would have been resolved early if the court and the arbitrator should have apply the Federal Arbitration Act and the case law of California as to the subjective arbitrability. We can get a lesson from this case that it is almost imperative for effective resolution of international disputes to consult with an expert in international dispute resolution rather than to hire a local attorney directly after a dispute arises.