국제투자중재 판정의 취소 - 영국과 싱가포르 사례를 중심으로 -

A Korean court has never dealt with a set aside proceeding of an international investment arbitral award. However, provided that Korea, e.g., Seoul, can be perceived as a neutral place of arbitration in the future, it is not entirely outside of the realm of possibility that Korea may be considered as a place of arbitration for international investment arbitration cases between a third country and an investor who has invested in that country, and that the set aside proceedings of international investment arbitral awards may be filed in a Korean court. In the set aside proceedings of investment arbitral awards, issues distinguished from those of commercial arbitration are addressed in various ways. In light of this, it is necessary to review the cases of other countries with experiences in dealing with the set aside proceedings so that the relevant issues can be ascertained. This research attempts to examine a few cases in the U.K. and Singapore in order to identify which issues may be addressed in the set aside proceedings, and to review their implications for Korea. Certainly, the existence of the grounds for setting aside, the specifics and scope of such grounds, etc., are matters for interpretation of domestic laws in each country of the place of arbitration, and, for the foregoing reason, they are not consistent. Nevertheless, the distinct issues that exist in the set aside proceedings can be identified by reviewing some of the existing set aside cases. As can be confirmed in the cases of the U.K. and Singapore, (i) whether the jurisdiction of the arbitral tribunal exists is the most common issue in the set aside proceedings of investment arbitral awards, and (ii) the principle of treaty interpretation in international law shall be understood to determine the existence of jurisdiction, i.e.,, whether there is an arbitration agreement. Furthermore, (iii) issues regarding justiciability or judicial restraint can be heavily debated in the set aside proceedings as an investment treaty is an agreement between and/or among states and shall be subject to the principle of interpretation in international law, and (iv) there may be divergent views over the standard of review as some, on the one hand, would argue that the courts of the place of arbitration should respect the rulings of arbitral tribunals and others, on the other hand, will argue for a reexamination of such rulings. As can be seen above, by analyzing the set aside cases of other countries, we may be able to gain an insight into how these issues can be addressed in a prospective set aside case in Korea.