해상운송계약상 외국 중재합의 및 관할합의 조항의 효력에 대한 비교법적 고찰

Due to the nature of sea transport contracts, contracts are concluded between various parties of various nationalities and the operation of ships or cargo is carried out across countries, so what laws will be applied to potential disputes that may arise in the course of all related legal actions and which arbitration or jurisdiction will resolve them. Consequently, arbitration and designation to the competent court are decided as a solution to potential disputes related to these contracts. In the event of an actual dispute, the effect of the foreign arbitration clause or choice of court clause will be an important issue if one party files an arbitration or a lawsuit in its own country, which is different from the agreement in the choice of court clause. In Vimar Seguros y Reaseguros v. M/V Sky Reefer, the U.S. Supreme Court held that the foreign arbitration clause was enforceable, and in M/S Bremen v. Zapata Off-Shore Co. the Supreme Court expended the decision holding the foreign arbitration and choice of court clauses are valid in respect of the agreement of the contracting parties. Unlike the United States, courts in countries such as Australia, Canada, New Zealand, and South Africa, which adopt protectionist policies, differ in their judgment on the effectiveness of foreign arbitration provisions on bill of lading and choice of foreign court clauses. Countries that adopt active protectionism, such as South Africa and Australia, have banned foreign arbitration or choice of court, while New Zealand, which adopts quasi-protectionist legislation, has banned the choice of court provisions, but foreign arbitration provisions are valid. In addition, in the case of Canada, which shows hybrid approach, foreign arbitration agreements are not explicitly stipulated as invalid, but the parties may proceed with arbitration or litigation in Canada. In Korea, if following requirement are met, the choice of court clause can be valid: first, the choice of court clauses are not exclusive jurisdiction of Korean courts; second, the provisions should not be unreasonable or contrary to public policy; third, there should be a reasonable relationship between foreign courts; and, forth, the agreement between the parties should not be significantly unreasonable or unfair. Therefore, the Supreme Court of Korea basically adopts protectionism for these clauses of foreign jurisdiction, but the effect of the provisions of choice of court clauses is determined based on practical judgment on specific matters in each case. In addition, the revised Private International Law effected on July 5, 2022 established regulations on choice of jurisdiction, prioritizing agreement between the parties to eliminate uncertainty and increase predictability in the event of a dispute by specifying the requirements for choice of jurisdiction. Considering the economic structure of Korea, where exports and imports account for an absolute proportion of the entire country’s industry, it is necessary to promote legal stability for sea transport along with the court’s judgment on each case. In other words, as discussed above, it is necessary to review the legislation to protect the interests of Korean citizens and ensure smooth commercial activities with other parties in international transactions by referring to legislative examples according to the level of protectionism.