중재판정부의 자기권한심사의 소극적 효과

In the case of a valid and enforceable arbitration agreement is existing, the arbitral tribunal has exclusive jurisdiction over the dispute. However, if a party of the dispute file a lawsuit in a national court along with arguing for the non-existence, invalidity, inoperative or incapable of being performed(hereinafter referred to as ‘validity etc.’) of the arbitration agreement, the arbitration and the litigation on the same dispute may be proceeded concurrently(lis pendens between arbitration and litigation). In this situation, the priority between the arbitral tribunal and the national court of pending action is ultimately determined by verifying the existence of valid and enforceable arbitration agreement on the dispute. Here again, an important issue that which forum between the arbitral tribunal and the national court would have priority to exercise the adjudication authority on the validity etc. of the arbitration agreement is arising. The meaning of ‘negative effect of the doctrine of Competence-Competence(Kompetenz-Kompetenz)’ is that the arbitral tribunal has a chronological priority in exercising the authority to adjudicate the validity etc. of the arbitration agreement to the national court. If the nagative effect of the doctrine of Competence-Competence is implemented, the arbitral tribunal takes prioity in adjudication on the validity etc. of the arbitration agreement, and the court can only conduct a ‘prima facie examination’ on the validity etc. of the arbitration agreement. Accordingly, the national court should suspend or dismiss the litigation and leave the priority of adjudication to the arbitral tribunal unless the arbitration agreement at first glance is found to be non-existence, invalidity, inoperative or incapable of being performed. In regard to legislative policy for the nagative effect of the doctrine of Competence-Competence, there is an inconsistency in international legal documents or in legislation of diverse national law. Rather, it appears in various ways depending on the legal traditions of each country and how well the country is adopting an arbitration-friendly legislative policy. In this article, the author arranges and analyzes the legislative examples of France, Switzerland, the United Kingdom, the United States, and Germany, as well as the New York Convention, the European Convention, and the UNCITRAL model law on arbitration in regarding the legislative policy for the negative effect of the doctrine of Competence-Competence. In addition, through this, the author examines whether it is possible to recognize the negative effect of the doctrine of Competence-Competence in the interpretation of the Korean Arbitration Act and its rationality. The author believes that it is reasonable to recognize the negative effect of the doctrine of Competence-Competence in the interpretation of the Korean Arbitration Act. Under the premise that the negative effect of the doctrine of Competence-Competence is recognized, a more detailed study should be conducted on what specific standards the court will adopt to handle cases from a practical point of view, and what improvements will be needed from a legislative perspective.