국제사법상 당사자자치의 원칙과 지상약관- 대법원 2018. 3. 29. 선고 2014다41469 판결의 평석을 중심으로 -

A Clause Paramount refers to the agreement of the parties to the contract to apply the laws of a particular country, or international conventions such as the Hague Rules or the Hague-Visby Rules in respect of the specific legal matters with the highest priority, despite the applicable laws generally governing the contract of affreightment or the charter-party. When the Clause Paramount is used, it is necessary to comprehensively consider the specific circumstances and interrelationships that led to the use of the Clause Paramount rather than judging it as incorporation of those international conventions or a particular state laws to the contract of carriage in accordance with the peripheral interpretation of the words of the Clause Paramount. However, since the Clause Paramount is essentially the designation of a governing law, the real intention of the parties using the Clause Paramount shall be presumed to have desired to designate the partly applicable law or part of the reference law. In particular, if the Clause Paramount which restrict the liability of the carrier is regarded as the substantive legal designation of the international private law, there are no reasonable reasons for the parties to the contract to place the Clause Paramount separately if the carrier's liability limitation under the general and overall governing law is higher than the liability limitation under the applicable law by the Clause Paramount. Therefore, when the Clause Paramount is used by the parties to the contract, it shall be understood as designation of the partly applicable law. On the other hand, as the bill of ladings are drawn up by the carrier and then scheduled to be distributed to third parties, legal control of the Clause Paramount is required for consumer protection if they are used. Therefore, if the liability for damages of a carrier is small enough to be virtually equal to exemption of a carrier's liability under the Clause Paramount, ruling out of the governing laws due to violation of the public policy under the international private law as well as with the application of the Terms and Conditions Regulations Act. This Korean Supreme Court's ruling studied in this article can be regarded as reaffirming that the designation of a governing law in international contracts is based on the principle of party autonomy as set out in Article 25 of the Korean International Private Law, and that whether there is the split of governing law or incorporation of the international convention or foreign laws into the contract by the use of Clause Paramount is basically a matter of interpretation of contract.