소송금지가처분(Anti-Suit Injunction)과 중재금지가처분

With the rapid growth of international arbitration, possibilities for legal conflicts between arbitration and litigation have been also increasing. Such conflicts can be more obvious when the arbitral tribunal makes an order, called anti-suit injunction, to prevent a party from seeking a parallel litigation, or to the contrary, when the court orders a party not to pursue an arbitration, in the form of an anti-arbitration injunction. Historically, anti-suit injunction has been granted in common law countries and caused conflicts with civil law countries where such type of injunction did not exist. In West Tankers case, European Court of Justice adjudicated that English court's anti-suit injunction is against the Brussels Convention. Regardless of this controversy, many arbitral tribunals have ordered anti-suit injunctions in actual practices. UNCITRAL Model Law and arbitration rule have been revised in 2006 to reflect and approve these practices. Korean Arbitration Act was also revised in 2016 and adopted most of the UNCITRAL Model Law, thus allowing anti-suit injunction by arbitral tribunals. In Gazprom case, European Court of Justice adjudicated that Brussels Convention does not apply to the anti-suit injunction issued by arbitrators. While Korean Arbitration Act allows anti-suit injunction issued by arbitral tribunals, current Korean legal scheme is interpreted not to permit anti-arbitration injunction issued by a court. Korean Supreme Court has also ruled that anti-arbitration injunction or a suit seeking declaration of illegality of arbitration procedure cannot be permitted. As relevant articles for recognition and enforcement of anti-suit injunction under Korean Arbitration Act are applied only to domestic arbitration, foreign anti-suit injunction still cannot be enforced in Korea and has only de facto constraints to the parties. Although anti-suit injunction is quite unfamiliar to most of the practitioners in civil law countries and cannot be overused, since revised Korean Arbitration Act now approves such type of injunction, Korean lawyers should be more aware of the backgrounds, possibility, requirement and enforcement of such injunction.