국제상사중재에서 형평과 선 및 우의적 중재

Ex aequo et bono arbitration and amiable composition in international com mercial arbitration is permitted under certain requirements. The arbitrator may, with the consent of the parties, resolve the case by ex aequo et bono or ami able compositeurs, without applying any national law. Ex aequo et bono arbi tration means a arbitral award that is granted as a motive for the consideration of equity and fairness in order to mitigate the harsh consequences resulting from the strict application of the law by the arbitrator. As a result of which ex aequo et bono is permitted only with explicit consent from the parties, ex ae quo et bono arbitration is rarely utilized. This article summarizes the concept of ex aequo et bono arbitration and amiable composition, examines the issues re lated including the handling of aequo et bono arbitration without the consent of the parties, and examines ways to increase its use. One of reasons for the poor utilization is not knowing the existence of the system itself. As a remedy for this, the arbitrator shall consider how to inform the parties of the existence and effect of ex aequo et bono, and present the timing and method of notifica tion of ex aequo et bono arbitration. We review the areas that can be judged by ex aequo et bono without the consent of the parties, and suggest the types of cases and criteria for judgment. Whether or not the amiable compositeurs can amend the terms of the contract between the parties is positively reviewed, with exceptions, to the extent that a serious defect of the contract is supplemented.