국제중재에서 징벌적 손해배상의 중재가능성 및유효성에 관한 연구

The question whether an arbitral award that imposes punitive damages is possible in international commercial arbitration is getting more attention these days. This attention was ignited by a U.S. case that recognized arbitrator's power to award punitive damages in domestic arbitration, and by the trend of diminishing antipathy against punitive damages among the continental law countries. However, it is still very difficult to find an arbitral award that imposes punitive damages in international commercial arbitration. In order to make it possible, punitive damages is available under the law applicable to the substance of the dispute, and arbitrator has a power to award punitive damages under the law applicable to the procedure of the arbitration. In addition, punitive damage award may be set aside if punitive damages is not available under the law of the arbitral seat, and punitive damage award may be unenforceable under the law of the country where enforcement is sought because it is against the public policy of that country. Furthermore, punitive damages are normally awarded in the context of a tort claims, not awarded for a breach of contract claim made in the context of international commercial arbitration. Since too many conditions should be met for punitive damages to be possible in international commercial arbitration, this question seems to remain as a theoretical one, not a practical thing. However, it becomes more probable in the near future to notice arbitral awards that impose punitive damages in international arbitration because traditional antipathy against punitive damages is diminishing among continental law countries, and many commentators argue that public policy standard for enforcement of international arbitration award made in foreign countries should be lowered.