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A Legal Study on the Validity of Optional Arbitration Agreement

  • DONG-A LAW REVIEW
  • 2012, (56), pp.325-354
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Kim, Soon-Lee 1

1동아대학교 법학과

Accredited

ABSTRACT

Arbitration is a conflict solving system in which a disputing party obeys the arbitral award given by the mediator chosen by himself/herself according to the agreement between the disputing parties, rather than asking the court to intervene a present or future judicial conflict. Nationally, it has the same effect as that of an irrevocable judgment by the court, and internationally, it has the effect to facilitate the consent and enforcement by a foreign arbitral award. In addition, as an alternative solution of conflict including arbitration is also managed by the rules and codes of procedure which the government has acknowledge as a part of judicial power and its effectiveness is being recognized, arbitration should be considered to be a process that still firmly belongs to the legal system even though it is an alternative to the judicial procedure. Accordingly, the arbitration system as an alternative process to solve a conflict also has its meaning in that it can extend an individual party’s approach to the system. Arbitration agreement is the precondition for a disputing party to use the arbitration system. However, recently, so-called “optional arbitration agreement” has appeared which regulates the content of arbitration agreement to be chosen from one among “trial,” “mediation” or “arbitration.” The problem is whether this optional arbitration agreement has the qualification as a general arbitration agreement or not, i.e., whether it can exclude the judgement through a judicial procedure and impose binding force on arbitration or not among the methods to solve a conflict. In the present time, the domestic laws of each country has altered to acknowledge the autonomy of arbitration from the court, and recently, the court itself has changed its position into active support for the solutions of conflicts external to a lawsuit in order to prevent the unnecessary or excessive increase of lawsuits. As the relation between the court and the arbitration law has switched like this, optional arbitration agreement is now in the situation whose validity can be acknowledged. The role of arbitration in international trading deals is becoming more crucial in these days, so if optional arbitration agreement is not accepted as arbitration agreement, less party will have arbitration agreement because of the burden of general arbitration agreement and the court will have to take even trivial conflicts again. Therefore, it is appropriate that optional arbitration agreement is admitted as valid first, and the suit procedure should begin only when a disputing party actively wants a lawsuit.

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