헤이그관할합의협약 가입시의 실익과 고려사항

The Hague Convention on Choice of Court Agreements(hereinafter “Convention”), concluded on 30 June 2005 and entered into force on 1 October 2015 by the Hague Conference on Private International Law(hereinafter “HCCH”), is a convention which applies to the international exclusive choice of court agreements concluded in the civil or commercial matters, and as well as to the recognition and enforcement of foreign judgments resulting from the proceedings based on such agreements. However the Convention applies only to the international exclusive choice of court agreements, it will be of vital significance in the international transactions practice, provided that many countries would become the Contracting States of the Convention since the parties of international business quite often agree on the exclusive jurisdiction. As of May 2019, 32 countries have joined the Convention, but the Republic of Korea(hereinafter “Korea”) has yet to become a Contracting State to the Convention. This article examines the merits and the matters to be considered when Korea determines to accede the Convention by comparatively analyzing the law of Korea and the terms of the Convention. There are some differences and discrepancies between the views of the Convention and that of Korea’s Civil Procedure Act and the precedents of the Supreme Court of Korea. For instance, the Convention is in the position in that (1) when the agreement on the choice of court has no specific terms in judging whether such an agreement is exclusive or additional, it would be deemed as an exclusive agreement, (2) the exclusive choice of court agreements would not mandatorily require to be concluded in writing, instead would only sufficiently require to be “documented” in writing, (3) the exclusive choice of court agreements would not require “a reasonable connection between the chosen court and the case in dispute”, (4) the governing law of the validity of the exclusive choice of court agreements shall be “the laws of a Contracting State designated in the exclusive choice of court agreements.” Therefore there will be significant changes in dealing the international exclusive choice of court agreements when Korea becomes a Contracting State of the Convention. However the changes according to the accession of the Convention would be desirable because it would enhance the clarity and foreseeability of international litigations based on the exclusive choice of court agreements. Since the 2018 draft amendment of Act on Private International Law of Korea(hereinafter “2018 Draft Amendment”) introduces the position of the Convention, it would minimize the changes that would take place after the accession of the Convention when the 2018 Draft Amendment passes the National Assembly and enters into force. The Convention aims at pursuing the clarity, the legal stability and the parties’ foreseeability by providing the internationally unified norms with respect to the international exclusive choice of court agreements in civil and commercial matters as well as the recognition and enforcement of the judgments based on such agreements. Hence Korea would wisely be advised to participate in the global efforts to establish the unified regulatory systems in so far as the international exclusive agreements on the choice of courts are concerned, by promptly joining the Convention. Furthermore the accession of the Convention on the part of Korea would recommendably be necessitated in a bid to move forward to the hub of the international dispute resolutions. However, Korea should seriously consider in determining whether or what the declarations would be necessary and beneficial in a quite number of ways. Firstly, I would suggest that the declarations under the Article 19 of the Convention would not be recommended since we would have to admit the international jurisdiction even in the cases that have no reasonable and substantial relevance in terms of between the parties, controversies and our country, in our country’s striving to achieve the hub-nation of international dispute resolutions. Secondly, I would suggest that the declarations pursuant to the Article 20 of the Convention would be required for the purpose of preventing the exclusive choice of court agreements in utilizing as a tool to circumvent or eliminate the courts of Korea in the pure domestic cases. Thirdly, I would suggest that the declarations on the Article 21 of the Convention would not be necessary on our part at least in regard to both the insurance contracts and the non-negotiated contracts between the parties, whereas we would have to scrupulously and strictly scrutinize the specific matters which have the strong interests in not applying the Convention. Lastly but not least, I would suggest that the declarations under the Article 22 of the Convention as to enabling to apply the Convention even to the non-exclusive choice of court agreements would appropriately decided after seeing the progress in which the 2018 Draft Convention on the Recognition and Enforcement of Foreign Judgments would be adopted in the Diplomatic Commission of HCCH to be held on June 2019.