투자분쟁, 상사중재, 국내소송의 병행적 활용에 관한 소고

Companies will need to carefully consider the resolution of legal disputes arising from their overseas investments and international trade activities. When a contract includes an arbitration clause or a separate arbitration agreement is in place, disputes covered by these agreements must undergo commercial arbitration. Domestic courts do not have jurisdiction over these disputes, which is relatively straightforward to comprehend. In cases where no arbitration agreement exists, disputes cannot be resolved through commercial arbitration. Instead, they must typically follow domestic litigation procedures, whether in a foreign or domestic court. However, companies have the option to initiate proceedings against the host country based on international investment agreements concluded between their home state and the host state. Notably, the utilization of investment dispute resolution procedures has seen significant growth recently. This means that, in international disputes involving investments, exports, and other cross-border matters, one can explore avenues beyond the traditional commercial arbitration and domestic litigation processes, namely investment dispute resolution procedures. Consequently, when dealing with international elements, available resolution mechanisms include domestic litigation, international commercial arbitration, and investment dispute reso lution procedures. While these procedures are distinct and independent, they possess various interconnections. Even if one dispute resolution process is not successful, the desire outcome can be achieved through another. While having a range of dispute resolution procedures at their disposal is advantageous for companies, there is also the risk of misallocation of resources if not managed properly. In re cent times, concerns have arisen regarding the potential misuse of multiple dispute resolutionprocedures initiated sequentially or concurrently for essentially the same case. Therefore, even when considering multiple resolution methods, careful evaluation of the pros and cons of each approach is essential, and it is advisable not to automatically opt for multiple procedures. Companies should base their decisions on a multitude of factors, including the distinctive characteristics of each dispute resolution procedure, the specific details of each case, relevant laws and regulations, the legal systems of the host country, and the enforceability of judgments or arbitral awards.