2016년 중재법 개정과 중재합의의 방식

The Korean Arbitration Act revised in 2016 greatly loosens the written requirement of arbitration agreement by accepting the UNCITRAL’s 2006 Amendments to Model Law, while maintaining the written requirement as in the 1999 Arbitration Act. Under the 1999 Act, the arbitration agreement itself, i.e. each party’s consent to submit the dispute to arbitration itself, had to be in writing, but now under the revised Act of 2016, it is sufficient for the “contents” of the arbitration agreement to be recorded in any way. The parties’ consents to arbitration do not have to be in writing. They may be made in any way, including orally. In this respect, the written requirement of the 1999 Act and that of the revised Act of 2016 are fundamentally different. Therefore, for example, under the revised Act of 2016, if the main contract is concluded orally, or if a party accepts the written offer of the other party orally or by conduct, the written requirement of arbitration agreement is satisfied. Furthermore, under the revised Act of 2016, the “record” containing the contents of the arbitration agreement is not limited to traditional documents, but includes photographs (including digital photographs) as well as sound recordings or video recordings. In addition, the revised Act corrects the error found in the 1999 Act by amending the relevant provisions to ensure that a written arbitration agreement is established by an exchange of statements of claim and defence in which the existence of an agreement is alleged by one party and not denied by the other. Meanwhile, in 2006, UNCITRAL adopted the Recommendation regarding the Interpretation of Article II, Paragraph 2, and Article VII, Paragraph 1, of New York Convention. It recommends that Article VII(1) of the Convention, which only states arbitral awards, be applied to arbitration agreements. Accordingly, it has become clear that a country in which a recognition of enforcement of arbitration agreement is sought can recognize and enforce the arbitration agreement if its own domestic law or treaty is more favorable to the interested parties. Furthermore, such “more favorable rights” provision of the Convention can be combined with Article V(1)(e) of the Convention. Accordingly, even if a foreign arbitral award is set aside in the country in which the award was made due to non-conformity to the written requirement of arbitration agreement, now if the formally defective arbitration agreement that worked as the ground of the setting aside meets the newly loosened written requirements of the revised Act of 2016 of Korea, national courts of Korea may recognize and enforce the award under the New York Convention. Meanwhile, in 2006, UNCITRAL adopted the Recommendation regarding the Interpretation of Article II, Paragraph 2, and Article VII, Paragraph 1, of New York Convention. It recommends that Article VII(1) of the Convention, which only states arbitral awards, be applied to arbitration agreements. Accordingly, it has become clear that a country in which a recognition of enforcement of arbitration agreement is sought can recognize and enforce the arbitration agreement if its own domestic law or treaty is more favorable to the interested parties. Furthermore, such “more favorable rights” provision of the Convention can be combined with Article V(1)(e) of the Convention. Accordingly, even if a foreign arbitral award is set aside in the country in which the award was made due to non-conformity to the written requirement of arbitration agreement, now if the formally defective arbitration agreement that worked as the ground of the setting aside meets the newly loosened written requirements of the revised Act of 2016 of Korea, national courts of Korea may recognize and enforce the award under the New York Convention.