국제상사중재의 신속절차에 의한 중재판정과 법률적 문제

The current formalism in arbitration may significantly hamper arbitral proceedings. For this reason, the concern for quick and effective awards has resulted in expedited procedures, in which arbitral award on disputes between parties can be rendered within a very short time. Most major arbitral institutions have adopted special rules for expedited procedures, which may cause some legal problems as follows: First, with regard to the scope of application of the expedited procedure rules provided by the different arbitral institutions, the question is whether provisions impair the principle of party autonomy. For example, an award rendered by a sole arbitrator in disregard of the parties’ explicit agreement to have their dispute decided by three arbitrators could be set aside, or its enforcement may be refused, by national courts. Second, compared to ordinary procedures, the expedited procedure rules involve certain limitations on the scope of the procedure, aimed at saving time and costs for the parties. These rules have in common the limitations on the number of permissible submissions and the time granted for filing each submission. The problem arises when the claimant has ample time to prepare its case in depth before initiating the proceedings, but the defendant is unable to do so as a consequence of the stringent time limits of the expedited procedure. To avoid any problems from such limitations, the utmost care and attention should be given to ensure that all submissions by one party in the proceedings are presented to the other, and that this party has a proper opportunity to comment thereupon. Third, the expedited procedure rules usually establish a time limit for rendering the final award. With regard to the award rendered in the expedited procedure, another question is whether it shall state the reasons upon which it is based, in order to avoid any challenge and ensure its enforceability. Parties should keep in mind that some national authorities may refuse the recognition and enforcement of the award according to the New York Convention if it lacks reasons. Consequently, parties and arbitrators should bear in mind that national courts may require an award to be of sound reasoning to ensure its recognition and enforcement.