중재판정 취소 및 승인집행 절차에서의 국제사법 문제에 관한 몇 가지 새로운 실무상 쟁점들

This study introduces and analyzes key issues in private international law arising in the set-aside or recognition and enforcement procedure of foreign arbitral awards from a practical perspective. Specifically, it focuses on frequently encountered issues in practice: determining the validity of arbitration agreements and their governing law, the legal doctrine surrounding the coexistence of multiple arbitration agreements, and the debate over whether there is res judicata in relation to the prior arbitration awards and the subjective scope of the effect of arbitration awards. First, it examines the conflicting academic theories surrounding the governing law of arbitration agreements concluded through agency acts(i.e., the view seeing it as the issue arises from the validity of the arbitration agreement, the view seeing it as it arises from incompetence, and the independent connection theory under the private international law of the enforcing state). It also examines the Supreme Court and recent lower court decisions that have adopted the third theory. Second, it presents legal principles regarding how to determine the governing law for determining the validity of multiple arbitration agreements between the same parties when they coexist. Third, it examines the governing law that determines the scope of res judicata of prior arbitral awards(judgments), the legal principles governing the determination of whether res judicata exists, and whether a misjudgment of res judicata constitutes grounds for annulment or denial of recognition and enforcement. Finally, it examines how to determine the appropriate entity as parties in recognition and enforcement proceedings when succession(especially comprehensive succession) occurs before or after an arbitral award, and the subjective scope of the arbitral award's effect, compared to a judgment. This study introduces and analyzes several new issues of private international law that may arise in the set-aside or recognition and enforcement proceedings of arbitral awards. By doing so, I aim to fill gaps in established legal principles and case law, thereby enhancing predictability and legal certainty in international arbitration practice.