한국법상 중재합의의 준거법 결정을 위한 저촉규칙 - 중재합의의 성립 및 실질적 유효성을 중심으로 -

At certain stages of arbitration or judicial proceedings, when the existence of a valid international arbitration agreement is contested, the arbitral tribunal and court must determine the law governing the arbitration agreement. For this end, this paper is to derive conflict-of-law rules from Korean arbitration law (including the New York Convention) provisions to determine the governing law of the substantive validity of arbitration agreement, while also discussing their scope of application. Under Korean law, the law governing the substantive validity of an arbitration agreement is the law agreed upon by the parties, which is called “the subjective governing law of the substantive validity of arbitration agreement.” In the absence of such agreement, the law of the place of arbitration becomes the governing law as “the objective governing law of the substantive validity of arbitration agreement.” This paper suggests that these conflict-of-law provisions in Korean arbitration law system should be viewed as comprehensive conflict-of-law provisions that apply not only to the setting-off, recognition or enforcement of arbitral awards, but also to all situations where the formation or substantive validity of an arbitration agreement is at issue.