외국중재판정의 승인집행에서의 준거법결정 - 대상판결: 대법원 2018. 7. 26. 선고 2017다225084 판결 -

The Supreme Court decision of 26 July 2018, Case No. 2017da225084 presents important issues regarding the conditions for the recognition and enforcement of arbitral awards under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958. However, the Supreme Court's reasoning reveals a few important questions omitted or improperly dealt with. The New York Convention, art. II, paras. 1 and 2 are the substantive provisions on the formality requirement for an agreement to arbitrate. These provisions should be understood as the only applicable rules on this issue, even excluding any possibility of the intervention of overriding mandatory rules. Consequently, there is no room to apply the rules of the state requested which impose a duty to present and explain the general conditions of contract on the party who prepared it, even as overriding mandatory rules. In effect, the decision reviewed here took the same position, when it failed to attend to this issue and simply neglected to opine whether the court of the State requested should apply its rules providing for the conditions of incorporating the general conditions of contract. The first part of article V, para. 1 (a) of the New York Convention provides for the refusal ground of “incapacity”, which covers representation and apparent representation by an agent. So the existence or non-existence of this refusal ground should be decided according to the law applicable under the private international law of the requested State. However, the decision under examination failed to see that the meaning of “incapacity” is the key to the deliberation of this refusal ground. Instead, the Supreme Court delved into the merits to uphold the representation or the apparent representation in entering into the main contract, and held that, as the necessary consequence, the representation or apparent representation was constituted. It was an unnecessary violation of the prohibition of review on the merits, and the Court appeared to ignore the fact that article V enumerates the available ground of refusal. The New York Convention mentions, in art. V, para. 1(a), second and third parts, the failure of valid constitution of an agreement to arbitrate, as another refusal ground. The law applicable to this refusal ground should be determined pursuant to the above provision. The second part of art. V.1(a) allows party autonomy. While this provision is silent on the limit to the implicit choice of law, it should be clearly identifiable, at least from the surrounding circumstances. A special care should be taken in finding an implicit, parallel choice of law to this issue from the choice of law applicable to the merits or the choice of an arbitral seat or an arbitral institution. Above all, the matter subjects are the matters of different nature from the valid constitution of an arbitration agreement. A mechanical rule of finding an implicit choice of law to the valid constitution of an arbitration, pointing to the same State as the State of which the law is chosen as the law applicable to the substance, or as the State of the agreed arbitral seat or institution, will turn out a rigid rule, subverting the justified expectation of the parties on the applicability of the third part of art. V.1(a). Such rule of interpretation will have the effect of requiring a disclaimer of any choice of law on this issue, from a party interested in agreeing to the law applicable to the substance, the arbitral seat, the arbitral institution, etc. but not in choosing the law applicable to the valid constitution of an arbitration agreement. The Supreme Court decision of 24 March 2016, Case no. 2012da84004 was correct in declining to find such a parallel choice of law, but the Supreme Court, in the case under review, went against its own precedent without a good reason. The third part of art. V.1(a) refers to the law of the arbitral seat. It is submitted that this should be interpreted as the whole reference, i.e., as the reference to the private international law of the designated State. This interpretation will help pursue the ideal of the international uniformity of decisions. The designated State may even have a conflict-of-laws rule, specific to the arbitration context, pointing to a transnational, non-state law to govern this issue. The requested State will experience no practical problem in accommodating this foreign view, if the reference is made to the private international law of the State of the arbitral seat. In the case under review, the Court would better have relied on the third part of art. V.1(a), instead of finding a party autonomy (art. V.1(a), second part) on weak grounds. Then the conflicts rule of the arbitral seat, the conflicts rules of the United States applicable in arbitration context, would have been relied on, and would have come closer to the cross-border uniformity of decisions. The absence of a party autonomy here will create no disaster, but will provide a solid solution of following the choice of law rules of the arbitral seat. An over-emphasis of “favor negotii” is not a good way to approach in finding a party autonomy. The New York Convention itself provides for the binding force of an arbitration agreement, in particular, the prohibition of a unilateral revocation at will. However, the decision under review confused the effect of an arbitration agreement with its validity. As a result, the Court erroneously held that the freedom or prohibition of a unilateral revocation should be determined by the law applicable to the valid constitution of an arbitration agreement, determined by the second or third part of art. V.1(a). Finally, an arbitral award is sometimes merged into a confirmation order issued by the court of the arbitral seat, and this raises the question of determining the object of recognition and enforcement and the applicable rules. It is submitted that the law of the recognition and enforcement of foreign arbitral awards should always provide the sole basis of recognition and enforcement and the refusal grounds, even where the court decision should, as an exception, serve as the object of recognition and enforcement. This solution will prevent the availability of recognition and enforcement under the New York Convention from being overturned by a subsequent exequatur or confirmation order rendered in the State of the arbitral seat. Indeed, the principle of “l'exécatur sur l'exécatur ne vaut” requires that the requested State should be solely entitled to rule on the enforceability of foreign arbitral awards. Meanwhile, an order to compensate for the procedural costs accrued in the proceedings for a confirmation order should be recognized and enforced as a foreign judgment.