국제중재에서 국제적 강행법규의 적용가능성

Abstract

Overriding Mandatory rules are laws that purport to apply irrespective of the law chosen by the parties to govern their contractual relations. This article examines their role and applicability in international arbitration. The overriding mandatory rules pose a complex and continuing problem for arbitrators because they put the interests of states and parties in direct competition. When a law says that arbitrators must apply it, yet the parties' contract excludes it, what should the arbitrators do? Where should their allegiance lie? The answer depends on the underlying nature of arbitration - and since that can be legitimately conceptualized in different ways, a principled approach to overriding mandatory rules seems to be impossible to provide. Nevertheless, a practical solution is required, because there were European cases in which courts voided valid arbitration agreements made, reasoning that arbitrators certainly would not apply and/or take into account its overriding mandatory rules of indemnity right granted to commercial agent and distributor in Europe. Therefore,this paper first examines status of overriding mandatory rules of another law in international litigation and then explores any possibility of application of overriding mandatory rules of another law in international commercial arbitration. With this analysis,the author reaches into a conclusion that the arbitrator should and/or take into account overriding mandatory rules of another law, yet should limit to them of the country where characteristic performance is made under the contract.

Overriding Mandatory rules are laws that purport to apply irrespective of the law chosen by the parties to govern their contractual relations. This article examines their role and applicability in international arbitration. The overriding mandatory rules pose a complex and continuing problem for arbitrators because they put the interests of states and parties in direct competition. When a law says that arbitrators must apply it, yet the parties' contract excludes it, what should the arbitrators do? Where should their allegiance lie? The answer depends on the underlying nature of arbitration - and since that can be legitimately conceptualized in different ways, a principled approach to overriding mandatory rules seems to be impossible to provide. Nevertheless, a practical solution is required, because there were European cases in which courts voided valid arbitration agreements made, reasoning that arbitrators certainly would not apply and/or take into account its overriding mandatory rules of indemnity right granted to commercial agent and distributor in Europe. Therefore,this paper first examines status of overriding mandatory rules of another law in international litigation and then explores any possibility of application of overriding mandatory rules of another law in international commercial arbitration. With this analysis,the author reaches into a conclusion that the arbitrator should and/or take into account overriding mandatory rules of another law, yet should limit to them of the country where characteristic performance is made under the contract.