조건부 용선계약상 중재합의의 독립성 - 영국법원의 Newcastle Express호 사건을 중심으로-

이원정 한국해법학회 2024 韓國海法學會誌 Vol.46 No.1

선주와 용선자 간의 용선계약 협상과정에서 중재조항을 포함하여 용선계약상 중요사항에 대하여 합의가 이루어진 경우, 용선중개인에 의해 ‘조건부 규정’이 포함된 성약확인서가 작성된다는 것은 널리 알려진 관행이다. 이러한 관행은 조건부 성약확인서가 용선계약의 성립을 증명하는 유효한 용선계약서인지, 그리고 성약확인서에 포함된 중재조항이 유효한 중재합의인지에 대하여 문제를 일으킬 소지가 있다. 이 문제는 다수 판례에서 논의가 진행되었고, 최근의 Newcastle Express호 사건에서 다시 다루어졌다. 이 사건 성약확인서에는, 선박에 대한 ‘송하인/수하인의 승인조건’과 함께 당사자 간의 분쟁은 런던중재에 회부된다는 내용의 중재조항이 포함되었다. 얼마 뒤, 용선자(원고)는 송하인이 선박을 승인하지 않는다고 주장하면서 선주(피고)에게 협상의 중단을 통지하였다. 선주는 이를 용선자의 이행거절로 간주하고, 손해배상을 청구하기 위해 용선자를 상대로 용선계약에 따라 런던 중재를 개시하였다. 중재인은 자신의 중재판정권한을 인정하고 선주승소판정을 내렸다. 용선자는, (i) 조건부 규정이 소멸(제거)되지 않았기에 당사자 간에 구속력 있는 용선계약이 체결되지 않았고 (ii) 조건부 규정은 중재조항에도 적용되는 만큼 중재를 통한 분쟁해결에 대한 합의가 이루어지지 않았다고 주장하면서, 영국 법원에 중재판정의 취소청구소송을 제기하였다. 제1심(상사법원)은 용선자의 주장을 인정하였다. 제2심(항소법원)은, 구속력 있는 계약은 정지조건이 성취될 때 비로소 존재하는 만큼 영국 중재법 제7조에 따른 중재합의의 독립성이 본 사건에는 적용되지 않는다는 점을 특별히 강조하면서, 제1심 판결을 지지하였다. Newcastle Express호 사건은 용선계약의 협상 과정에서 통상적으로 사용되는 성약확인서상 조건부 규정의 효력과 동 규정이 중재합의의 독립성에 미치는 영향에 대하여 유익한 지침을 제공한다. 따라서 본 논문에서는 Newcastle Express호 사건의 판결 이유를 분석하고, 법적 분쟁 예방을 위한 판결의 시사점을 제시하고자 한다. During the process of negotiating a charterparty between the owner and the charterer, when the parties have agreed the essential terms of charterparty including an arbitration clause, it is a well-recognized practice that a recapitulation of fixture containing ‘subjects provisions’ makes out by the chartering broker. This practice may arise questions whether the recapitulation of fixture on ‘subject’ is a binding charterparty by evidencing the formation of charter as well as the arbitration clause in the recapitulation of fixture is a valid arbitration agreement. There has been much discussion of this question in the authorities and it arose again in the recent case, the Newcastle Express. In this case, the recapitulation of fixture contained ‘subject’ provision requiring shippers/receivers approval on the vessel and an arbitration clause referring disputes to London Arbitration. Shortly after, the charterer(the claimant) notified the negotiation’s breaking up to the owner(the defendant), stating that the shipper is not accepting the vessel. The owner held the charterers in repudiatory breach of the charterparty and commenced arbitration in London against the charterer under the charterparty, seeking damages. The arbitrator accepted jurisdictions and proceed to issue an award in favor of the owners. The charterer challenged the award to the English court, insisting that (i) the parties had not concluded a binding charterparty as the subjects provision had never lifted(or removed) (ii) no agreement had been reached for the resolution of dispute by arbitration, because the subject provision also applied to the arbitration agreement. The Commercial Court accepted the charterer’s submissions. The Court of Appeal upheld the first instance judgement, expressly stating that a binding contract would only come into existence where the condition precedent had been fulfilled, accordingly the separability of arbitration agreement under section 7 of the English Arbitration Act(1996) was not applied to this case. The Newcastle Express provides useful guidance on the effect of the ‘subject’ provisions in the recapitulation of fixture routinely encountered in charterparty negotiations and their impact on the separability of arbitration agreement. This study is to analyse the reasoning of the decision in the Newcastle Express, and to derive its some implications for legal dispute prevention.

公海 自由에 對한 考察

李元汀 중앙대학교 법학대학 1960 法政論叢 Vol.11 No.-

고품질의 상품과 서비스

이원정,Lee, Won-Jeong 한국IT전문가협회 1994 소프트웨어세계 Vol.2 No.-

기고 - 국내 진폐 진단용 표준 디지털영상 소개

이원정,Lee, Won-Jeong 대한산업보건협회 2013 산업보건 Vol.299 No.-

CAIBE(Chemically Assisted Ion Beam Etching)를 이용한 GaN(Gallium Nitride)의 식각 특성에 관한 연구

이원정,김현수,이재원,김태일,염근영 한국표면공학회 1998 한국표면공학회 학술발표회 초록집 Vol.1998 No.-

뽕잎 폴리페놀화합물의 생리활성

이원정,김은옥,최상원 한국식품영양과학회 2011 한국식품영양과학회 학술대회발표집 Vol.2011 No.10

알코올이 흰쥐의 신장 부분 절제-염 고혈압에 미치는영향

이원정 慶北大學校 1980 論文集 Vol.29 No.-

A relationship between arterial pressure and body fluid in the pathogenesis of partial nephrectomy (PN)-salt hypertension was examined in the rat. Hypertension was produced by removing 70% of total renal tissue and substituting 1% saline for drinking water 6 days after surgery. PN alone increased systolic blood pressure from 116±5 to 137±7 mmHg (p<0.01). The subsequent salt loading resulted in a further large increase on arterial pressure (162±7mmHg). The elevated pressure decreased to normal levels one day after intubation of 10 or 20% ethanol (1.5ml/100g BW) 3 times a day. When those rats were allowed to drink 1% saline again the arterial pressure increased to 169±6mmHg. One day following water intubation (1.5ml/100g BW) into those hypertensive rats, blood pressure did not change(160±10mmHg), but decreased to a normal level (129±5mmHg) two days after the water intubation. The subsequent salt loading led to a rapid elevation of blood pressure again (153±4mmHg). Blood pressure of sham-operated rat did not change whether they were given saline, water or ethanol. These results suggest that, in this type of hypertension, ethanol reduced blood pressure probably through the diuretic response and thus reducing the body fluid volume.

Development of a novel enzyme-linked immunosorbent assay to detect anti-IgG against swine hepatitis E virus

이원정,신민경,차승빈,유한상 대한수의학회 2013 JOURNAL OF VETERINARY SCIENCE Vol.14 No.4

Swine hepatitis E virus (HEV) is widespread throughout pigs in both developing and industrialized countries. This virus is an important zoonotic agent and a public concern worldwide. Infected pigs are asymptomatic, so diagnosing swine HEV relies on detection of the virus or antibodies against the virus. However, several obstacles need to be overcome for effective and practical serological diagnosis. In this study, we developed an enzyme-linked immunosorbent assay (ELISA) that used a purified recombinant capsid protein of swine HEV. The potential clinical use of this assay was evaluated by comparing it with a commercial kit (Genelabs Technologies, Diagnostics, Singapore). Results of the ELISA were highly correlated with those of the commercial kit with a sensitivity of 97% and specificity of 95%. ROC (receiving operator characteristic) analysis of the ELISA data produced a value of 0.987 (95% CI, 0.977∼0.998, p < 0.01). The cut-off value for the ELISA was also determined using negative pig sera. In summary, the HEV-specific ELISA developed in the present study appears to be both practical and economical.

Development of Standard Digital Images for Pneumoconiosis

이원정,최병순,김성진,박충기,박재성,태석,Kurt Georg Hering 대한의학회 2011 Journal of Korean medical science Vol.26 No.11

We developed the standard digital images (SDIs) to be used in the classification and recognition of pneumoconiosis. From July 3, 2006 through August 31, 2007, 531 retired male workers exposed to inorganic dust were examined by digital (DR) and analog radiography (AR) on the same day, after being approved by our institutional review board and obtaining informed consent from all participants. All images were twice classified according to the International Labour Office (ILO) 2000 guidelines with reference to ILO standard analog radiographs (SARs) by four chest radiologists. After consensus reading on 349 digital images matched with the first selected analog images, 120 digital images were selected as the SDIs that considered the distribution of pneumoconiosis findings. Images with profusion category 0/1, 1, 2, and 3 were 12, 50, 40, and 15, respectively, and a large opacity were in 43 images (A = 20, B = 22, C = 1). Among pleural abnormality,costophrenic angle obliteration, pleural plaque and thickening were in 11 (9.2%), 31(25.8%), and 9 (7.5%) images, respectively. Twenty-one of 29 symbols were present except cp, ef, ho, id, me, pa, ra, and rp. A set of 120 SDIs had more various pneumoconiosis findings than ILO SARs that were developed from adequate methods. It can be used as digital reference images for the recognition and classification of pneumoconiosis.

Relation of Pulmonary Function Impairment and Coronary Artery Calcification by Multi-detector Computed Tomography in Group Exposed to Inorganic Dusts

이원정,신재훈,So Young Park 대한결핵및호흡기학회 2013 Tuberculosis and Respiratory Diseases Vol.74 No.2

Background: The purpose of this study was to evaluate the relationship of pulmonary function impairment (PFI) and coronary artery calcification (CAC) by multi-detector computed tomography (MDCT), and the effect of pneumoconiosis on CAC or PFI. Methods: Seventy-six subjects exposed to inorganic dusts underwent coronary artery calcium scoring by MDCT, spirometry, laboratory tests, and a standardized questionnaire. CAC was quantified using a commercial software (Rapidia ver. 2.8), and all the subjects were divided into two categories according to total calcium scores (TCSs), either the non-calcified (<1) or the calcified (≥1) group. Obstructive pulmonary function impairment (OPFI) was defined as forced expiratory volume in one second/forced vital capacity (FEV1/FVC, %)<70, and as FEV1/FVC (%)≥70 and FVC<80 for restrictive pulmonary function impairment (RPFI) by spirometry. All subjects were classified as either the case (profusion≥1/0) or the control (profusion≤0/1) group by pneumoconiosis findings on simple digital radiograph. Results: Of the 76 subjects, 35 subjects (46.1%) had a CAC. Age and hypertension were different significantly between the non-calcified and the calcified group (p<0.05). Subjects with pneumoconiosis were more frequent in the calcified group than those in the non-calcified group (p=0.099). FEV1/FVC (%) was significantly correlated with TCSs (r=−0.316, p=0.005). Subjects with OPFI tended to increase significantly with increasing of TCS (4.82, p=0.028), but not significantly in RPFI (2.18, p=0.140). Subjects with OPFI were significantly increased in the case group compared to those in the control group. Conclusion: CAC is significantly correlated with OPFI, and CAC and OPFI may be affected by pneumoconiosis findings.