준거법에 기초한 중재합의의 유효성에 관한 구조적 분석

Arbitration has become widely used as an alternative dispute resolution (ADR) method, primarily because it allows the parties to form a dispute resolution process that is both procedurally and substantively tailored to the specific dispute through mutual agreement. The starting point for dispute resolution via arbitration is the arbitration agreement between the parties. In regulating arbitration agreements, it is important to align with the parties’ intent to resolve their disputes through a voluntary process. At the same time, the state legislates arbitration laws within its territory to govern the conduct of arbitrations and to protect its interests. This paper seeks to find a harmonious balance between the values of respecting the parties’ agreement and the values that need to be protected in the place of arbitration when these values conflict. In doing so, it examines the governing law applicable to each issue. The paper explores the formal requirements for the validity of arbitration agreements, including the writing requirement, formation and substantive validity, legality, arbitrability, and the effect of public policy violations. In this context, the paper considers each issue in relation to the governing law and provides a structural analysis of the arbitration agreement as a whole. While a written agreement is generally required, it also examines the limits of relaxing this requirement, given the current trend to soften this condition. The paper explores how to determine the applicable law for the formation and substantive validity of arbitration agreements, and seeks to identify future directions in light of recent legislative practices abroad. In the case of pathological arbitration clauses, where the parties’ intention to submit their disputes to arbitration is evident, the arbitration agreement should, as a rule, be given effect, save in exceptional cases where it is incapable of being enforced. Of particular importance is the legality of arbitration agreements. The paper examines how the legality of an agreement limits its substantive validity and argues that the regulation of legality should be exclusively governed by the arbitration law of the place of arbitration. Additionally, the paper argues that an arbitration agreement will not be immediately invalidated due to the lack of arbitrability or a violation of public policy. In conclusion, this paper explores the legal considerations that may arise from the validity of arbitration agreements, which serve as the starting point for self-directed dispute resolution, and seeks to identify the applicable law for each issue, thereby evaluating the effects of such agreements. By respecting the parties’ autonomy while setting reasonable boundaries to protect the values of the place of arbitration, this paper hopes to contribute to the efficient conduct of arbitration as a widely adopted alternative dispute resolution method.