국제상사중재에서 중재합의의 준거법 결정원칙의 재검토 - 영국 2025년 중재법 개정 과정을 중심으로 -

The purpose of this article is to reassess the principles for determining the law governing an arbitration agreement in international commercial arbitration in light of the United Kingdom’s 2025 reform of its arbitration legislation, which introduced an express statutory provision on the governing law of arbitration agreements, and to explore the implications for interpretation and possible legislative reform in Korea. To that end, the article first surveys the role of party autonomy in determining the law governing an arbitration agreement and then examines the main approaches found in comparative practice. These approaches may broadly be classified into (i) the seat-of-arbitration approach, (ii) the main-contract governing law approach, (iii) the validation approach (the validation principle), and (iv) supra-national or a-national approaches. In practice, however, most jurisdictions adopt one of the first two: either the seat-of-arbitration approach or the main-contract governing law approach. The article then reviews the development of English case law on the governing law of arbitration agreements prior to the 2025 reform. The UK Supreme Court refined a doctrine grounded in the main-contract governing law approach. Over time, however, criticism and dissatisfaction accumulated that the doctrine was complex and unpredictable. Against this background, calls from practitioners to adopt a seat-of-arbitration approach gained traction during the reform process, culminating in the 2025 amendment that codified the seat-of-arbitration approach. The trajectory of English case law and the debates surrounding the UK’s 2025 reform can inform the development of Korean interpretive doctrine and legislative policy. The Supreme Court of Korea has not yet articulated a clear position on the law governing arbitration agreements, and careful consideration will be required when the issue is squarely presented. The view that, where the parties have expressly chosen the governing law of the main contract, they should be taken to have tacitly chosen the same law for the arbitration agreement (the main-contract governing law approach) has intuitive appeal. Yet it may be criticised on the grounds that it is unclear whether such a tacit choice can legitimately be inferred, and that the approach tends to multiply exceptions, thereby generating unnecessary disputes and undermining predictability. In light of these concerns, Korea may consider an alternative view: that, in most cases, no tacit choice for the arbitration agreement should be recognised and that, under the applicable conflict-of-laws analysis, the law governing the arbitration agreement should be the law of the seat (a seat-of-arbitration approach based on an objective connecting factor). From a legislative perspective, it would be desirable to enhance legal certainty by introducing an explicit statutory provision on the law governing arbitration agreements. One of the key reasons the UK adopted the seat-of-arbitration approach was to strengthen its attractiveness and standing as an arbitral seat, and many jurisdictions that have enacted an express rule similarly opt for the seat-of-arbitration approach. These considerations suggest that Korea could also contemplate a provision adopting the seat-of-arbitration approach. At the same time, given that Korea may derive fewer practical benefits than the UK from codifying that approach, there is also room to argue for legislation in a different direction—namely, a provision expressly endorsing the main-contract governing law approach. Accordingly, careful legislative deliberation is warranted, taking into account developments in leading arbitral jurisdictions that are currently considering related reforms, including Singapore.