정부조달계약에 포함된 선택적 중재합의의 유효성 인정의 확대 방안

Civil disputes are generally resolved through civil litigation in court. However, alternative dispute resolution (ADR) exists in addition to civil litigation of the court. Arbitration as a kind of ADR is the process that the parties agree to resolve their disputes through an arbitrato’s judgment, and forcibly resolve the case through the judgment by arbitrators rather than the judge. Most government procurement contracts in Korea are concluded using general contract terms and conditions pre-established as administrative regulations through the Ministry of Strategy and Finance or the Defense Acquisition Program Administration. These general contract terms and conditions include provisions regarding dispute resolution, which include “optional arbitration agreements.” “Optional arbitration agreements” are only effective when one party selects arbitration procedures and requests the other party to resolve their dispute through the procedures, and the other party enter into the procedures without objections. If the other party actively asserts invalidity of the arbitration agreement in his response, optional arbitration agreements are deemed invalid. In other words, optional arbitration agreements are considered as flexible invalid, not arbitration agreements. In arbitration cases regarding government procurement contracts, the validity of the arbitration agreements is determined by whether or not the other party objects to the arbitration agreement by the time the other party submits his response. Therefore, the burden of needs to anticipate whether the other party challenge the effectiveness of the arbitration agreements exists in filing the arbitrations. Optional arbitration agreements make parties avoid arbitration proceedings out of concern due to the possibilities of the other party’s objection to the arbitration agreement even if one party files his request. Furthermore, one party initially files a request for arbitration, and the other party give confidence to proceed with the arbitration process for a period of time, and the other party may suddenly object to the arbitration agreement in a response. It makes the request and the procedures invalid, and the party filing the request must either file some lawsuit separately or waive his rights. To prevent this outcome and promote arbitration, the requirement for the validity of optional arbitration agreements, it is necessary to confirm “the other party’s entering into his arbitration process without objections to the arbitration agreements” broadly and more loosely. The dictionary definition of “to enter into” is “to take something as a subject matter.” Case laws generally recognize “to enter into” when a party takes a passive action or a active action, in addition to responds to a specific subject matter anyway. Therefore, even if a party does not actively take an action, “to enter into a arbitration procedure” can be met even if the party does not actively refuse or oppose the procedure. A party may be recognized as “entering into the arbitration process” when he actively take actions in the arbitration process, including submitting written documents, evidences, and participation of hearing. Furthermore, “entering into the arbitration process” may also be recognized through passive actions for continuing of the arbitration process in its ordinary order, undertake necessary actions of procedures for its future progress to prevent from excluding the arbitration process, or express his intent to participate in the arbitration process. In this regard, it is necessary to review the terms for submitting a response, selecting or nominating an arbitrator, an advance payment of arbitration costs, and requesting of extension in arbitration procedure, stipulated in domestic arbitration rules and international arbitration rules, in basis on the interpretation of the parties’ intentions, the principle of good faith, and the principle of estoppel. Therefore, the validity of optional arbitration agreements can be determined by individually assessing a party’s actions and implied expressions of intent in the specific arbitration process, even without Supreme Court precedent changes regarding the above.