외국 법원의 중재판정 취소청구 기각 재판의 구속력 및 관련 논점들 - 독일 연방대법원 2023. 3. 9.자 결정을 중심으로 -

In this article, the author discusses a decision of the German Federal Court of Justice (Beschluss vom 9.3.2023 – I ZB 33/22) (the “Decision”), which addresses, among other things, whether a judgment by the court at the seat of arbitration (in this case, Russia) rejecting an application for setting aside of an arbitral award is binding in exequatur proceedings under the New York Convention and the German Code of Civil Procedure. After reviewing scholarly discussions in Germany, primarily based on German literature, the author examines the same issue under the New York Convention and the Korean Arbitration Act. Through this comparative analysis, the article explores the concept of the arbitration seat, its legal framework, the role of courts at the arbitration seat in international commercial arbitration, and whether a "double control" mechanism over arbitral awards is appropriate. The Decision entirely denied the binding force of the Russian court's dismissal of the application of setting aside and ultimately rejected the application for exequatur. On one hand, this outcome may appear consistent with the New York Convention, which permits double control over arbitral awards. On the other hand, the complete disregard for the Russian court’s decision led to a conflict between the Russian judgment and the German exequatur outcome regarding grounds for setting aside and refusal of recognition, undermining the objective of achieving “international decisional harmony.” While the Decision’s conclusion could be justified in light of the low level of trust in Russian arbitral awards and courts—especially in terms of protecting the respondent’s rights—it remains controversial for entirely excluding the possibility of recognizing the Russian setting aside decision. Following the Decision’s logic, disputes may become unnecessarily prolonged due to repetitive examinations in arbitration, setting aside, and recognition proceedings for largely the same issues. If recognition of a dismissal of an application for setting aside is possible, it is crucial first to understand the subject matter and res judicata effect of such a decision in the arbitration seat, and then assess whether this effect extends to the recognizing country. Although this issue was not dealt with in the Decision, it is worth noting that the German Code of Civil Procedure excludes double control between setting aside and exequatur proceedings for domestic arbitral awards—unlike the UNCITRAL Model Law. Korea, having adopted legislation faithful to the Model Law, permits double control, but it is necessary to further consider whether this approach is ideal. Additionally, the setting aside of an arbitral award by the court of the seat constitutes a ground for refusing recognition under the New York Convention. The article examines whether this presupposes that the setting aside decision must be recognized in the country where enforcement is sought. In Germany, prevailing case law and scholarly opinion suggest that the recognition of an setting aside judgment is not required. However, other views reject the binding nature of setting aside decisions altogether. Ultimately, in Germany, a foreign court’s decision rejecting an application for setting aside is not considered binding, while a decision granting an application for setting aside is regarded as binding under the New York Convention. The article also analyzes the interpretation of Korean law on these issues. However, it is regrettable that scholarly discussion on these matters remains limited in Korea. So Korean lawyers need to pay more attention to them in the future.