ICSID 중재의 임시적 처분 구속력과 미준수 효과에 관한 연구

하현수 한국중재학회 2020 중재연구 Vol.30 No.2

This study focuses on the binding power of the interim measures of the arbitral tribunal in ICSID arbitration and the effects of non-compliance. Upon consideration of the intentions of those who made these rules, given the interpretation of the provisions of Article 47 of the ICSID Convention and Article 39 of the ICSID Arbitration Rules, it was found reasonable to consider that the interim measures made by the arbitral tribunal in ICSID arbitration were not binding. However, in actual ICSID arbitration, most arbitral tribunals approve the binding power of the interim measures based on the purposes and the characteristics of the interim measures. As such, there is a certain distance between the legislative intention for interim measures in ICSID arbitration and the judicial practice, but considering the demand for maintaining the integrity of the arbitration procedure, it is reasonable to consider that the interim measures are binding. In addition, the fact that the interim measures have binding power can increase the possibility that the party will comply with the interim measures. Thus, the binding power of interim measures not only encourages voluntary compliance to the interim measures of the party, but can also cause negative consequences for the party if it is not met. In other words, the arbitral tribunal will be able to form negative inferences against the party who does not comply with it in a procedural side, and in the practical side, the party who does not comply with the interim measures will be compensated for the additional damages for non-compliance. 본 연구는 ICSID 중재에서 중재판정부가 내린 임시적 처분의 구속력과 임시적 처분을 준수하지 않음에 따른 효과를 중심으로 하여 관련 내용을 살펴보았다. ICSID 협약 47조와 ICSID 중재규칙 제39조에 규정된 내용을 해석하고 이들 규정을 입안한 입안자들의 입안 의도만을 살펴본다면, ICSID 중재에서 중재판정부가 내린 임시적 처분은 구속력이 없는 것으로 보는 것이 타당할 것이다. 그러나 실제 ICSID 중재에서 대부분의 중재판정부는 임시적 처분의 목적과 임시적 처분이 가지는 속성에 기초하여 임시적 처분의 구속력을 인정하고 있다. 이처럼 ICSID 중재에서의 임시적 처분에 대한 입법 의도와 사법 실무 간에는 일정한 거리가 존재하고 있으나, 중재절차의 완전성 유지에 대한 요구 등을 고려한다면 임시적 처분은 구속력을 가진다고 보는 것이 타당할 것이다. 또한 임시적 처분이 구속력을 가지는 것은 해당 당사자가 임시적 처분을 준수할 가능성을 높일 수 있다. 즉, 임시적 처분의 구속력은 해당 당사자의 임시적 처분에 대한 자의적 준수를 장려할 뿐만 아니라 이를 준수하지 않았을 경우 해당 당사자에게 부정적인 결과를 야기할 수 있기 때문이다. 즉, 중재판정부는 절차적 측면에서 이를 준수하지 않는 당사자에게 불리한 추론을 할 수 있을 것이며, 실체적 측면에서는 임시적 처분을 준수하지 않은 당사자가 이를 준수하지 않음으로써 추가된 손해를 보상해야 한다는 판정을 나올 수 있다.

The 2019 Hong Kong-Mainland China Arrangement on Mutual Assistance in Court-ordered Interim Measures: A Major Breakthrough for Hong Kong-seated International Arbitral Proceedings

전정원(Jung Won Jun) 한국무역학회 2020 Journal of Korea trade Vol.24 No.6

Purpose - This paper examines the “Arrangement Concerning Mutual Assistance in Court-ordered Interim Measures in Aid of Arbitral Proceedings by the Courts of the Mainland and of the Hong Kong Special Administrative Region” (the Arrangement), which became effective on October 1, 2019, calling on courts of mainland China and Hong Kong for reciprocal commitment in support of court￾ordered interim measures in aid of arbitral proceedings. Because the Hong Kong courts have granted interim measures in aid of arbitral proceedings seated in and outside of Hong Kong even prior to the Arrangement becoming effective, this paper focuses on the significance of the Arrangement making Hong Kong the first and only seat outside of mainland China from which parties to arbitral proceedings may successfully obtain interim measures to preserve of assets, properties, and/or evidence from Chinese courts to be enforced in China. Design/methodology - The significance of interim measures in international arbitration and the existing circumstances of interim measures in support of international arbitral proceedings in mainland China and Hong Kong are discussed first in this paper. Due to the confidential nature of arbitral proceedings, while the details of applications for interim measures pursuant to the Arrangement cannot be discussed, in examining the implications of the Arrangement, the relevant and necessary information was made available from the Hong Kong International Arbitration Centre, as it is one of the six qualified arbitral institutions under the Arrangement. Findings - This groundbreaking Arrangement provides a mechanism for parties with China-related matters to more effectively resolve their disputes, the opportunity for Hong Kong to become an unparalleled seat of arbitration, and for mainland China to overcome some of its negative perceptions in international arbitration. Because the Arrangement also allows parties to directly apply for interim measures from mainland Chinese courts, parties with China-related matters should take note of this potential bypassing of the procedural hurdle, which usually requires an arbitral institution to submit such applications in China, and make strategic decisions accordingly as may be appropriate. Originality/value - Because the Arrangement is a recent yet a significant agreement calling on courts of mainland China and Hong Kong for reciprocal commitment in support of court-ordered interim measures in aid of arbitral proceedings, this study will provide useful guidance for parties with China￾related matters all over the world, especially in light of China’s rapid economic growth and extensive and prominent trade relationships in today’s world. Parties who foresee the need for interim measures from mainland Chinese courts should designate Hong Kong as their seat of arbitration and select one of the six qualified arbitral institutions under the Arrangement to administer their arbitral proceedings in order to benefit from the Arrangement.

국제상사중재에서 중재판정부의 권한과 임시적 처분에 관한 연구

이강빈 韓國仲裁學會 2008 중재연구 Vol.18 No.2

This paper is to research the powers and interim measures of the arbitral tribunal in the arbitral proceedings of the international commercial arbitration under arbitration legislation and arbitration rules including the UNCITRAL Model Law and Arbitration Rules. The powers of the arbitral tribunal may be found within the arbitration agreement or any arbitration rules chosen by the parties, or the chosen procedural law. The power of the arbitral tribunal to decide its own jurisdiction is one of the fundamental principles of international commercial arbitration, It is a power which is now found in nearly all modem arbitration and rules of arbitration. Where an arbitral tribunal has been appointed then it will usually have the power to proceed with the arbitration in the event that a party fails to appear, It cannot force a party to attend but it may sanction the failure. While the arbitral tribunal can direct the parties to attend and give evidence the arbitral tribunal has no power to compel a party to give evidence. The arbitral tribunal may continue the arbitration in the absence of the party or its failure to submit evidence and make an award on the evidence before it. Under most of arbitration legislation and arbitration rules, the arbitral tribunal has the power to appoint experts and obtain expert evidence. The power to order a party to disclose documents in its possession is a power given to the arbitral tribunal by many national laws and by most arbitration rules. The arbitral tribunal cannot, however, compel disclosure and in the case where a party refuses to disclosure documents then the sanctions that the arbitral tribunal can impose must be ascertained from the applicable rules or the relevant procedural law. A number of arbitration rules and national laws allow for the arbitral tribunal to correct errors within the award. Most of arbitration legislation and arbitration rules permit the arbitral tribunal to grant orders for interim measure of protection. Article 17(1) of the Revised UNCITRAL Model Law of 2006 states: Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, grant interim measures. Interim measures of protection usually take such forms as (1) conservatory measures intended to prevent irreparable damage and maintain the status quo; (2) conservatory measures intended to preserve evidence or assets. Orders for interim measures by the arbitral tribunal are not self-enforcing. However, the arbitral tribunal must have the powers necessary to make interim measures effective. The Article 17 B of the Revised UNCITRAL Model Law of 2006 provides applications for preliminary orders and conditions for granting preliminary orders. And the Article 17 H provides recognition of enforcement of interim measures. In conclusion, the revised articles with regard to interim measures of the UNCITRAL Model Law of 2006 would contribute significantly to the security of the effectiveness of interim measures in international commercial arbitration. Therefore, Korean Arbitration Law and Arbitration Rules would be desirable to admit such revised articles with regard interim measures.

국제상사중재에 관한 UNCITRAL 모델법의 개정동향

이강빈 한국중재학회 2006 중재연구 Vol.16 No.3

At its thirty-second session(Vienna, 17 May-4 June 1999), the UNCITRAL decided that the priority items for the Working Group(Arbitration and Conciliation) should include enforceability of interim measures and the requirement of written form for the arbitration agreement. The Working Group, at its forty-third session(Vienna, 3-7 October 2005), it had undertaken a detailed review of the text of the revised article 17 of UNCITRAL Model Law on International Commercial Arbitration, and it had resumed discussions on a draft model legislative provision revising article 7, paragraph (2) of UNCITRAL Model Law. The purpose of this paper is to make research on the contents and issues of the draft legislative provisions on interim measures and preliminary orders, and on the form of arbitration agreement which the Working Group discussed and adopted at its forth-fourth session(New York, 23-27 January 2006). The draft legislative provisions on interim measures and preliminary orders are composed of the following provisions : Article 17-power of arbitral tribunal to order interim measures; article 17 bis-conditions for granting interim measures; article 17 ter-applications for preliminary orders and conditions for granting preliminary orders; article 17 quater-specific regime for preliminary orders; article 17 quinquies- modification, suspension, termination; article 17 sexies-provision of security; article 17 septies-disclosure; article 17 octies-costs and damages; article 17 noviesrecognition and enforcements; article 17 decies-grounds for refusing recognition or enforcement; article 17 undecies-court-ordered interim measures. There are the following issues in the draft legislative provisions on interim measures and preliminary orders : form of issuance of an interim measures in article 17(2); conditions for granting interim measures in article 17 bis; purpose, function and legal regime of preliminary orders in article 17 ter; obligation of arbitral tribunal to give notice, and non-enforceability of preliminary orders in article 17 quater; burden of proof, interplay between article 17 decies and article 34, and decision on the recognition and enforcement of the interim measures in article 17 decies; placement of article 17 undecies; amendment of scope exception of application in article 1(2). The draft legislative provisions on the form of arbitration agreement are composed of the following provisions : article 7(1) definition of arbitration agreement; article 7(2) arbitration agreement in writing; article 7(3) arbitration agreement if its terms(content) are (is) recorded in any form; article 7(4) arbitration agreement by an electronic communication; article 7(5) arbitration agreement in an exchange of statements of claim and defence; article 7(6) reference to any document containing an arbitration clause. There are the following issues in the draft legislative provisions on the form of arbitration agreement : arbitration agreement in writing in article 7(2); terms or contents of arbitration agreement in article 7(3); arbitration agreement by electronic communication in article 7(4); existence of arbitration agreement in article 7(5); reference to any document containing an arbitration clause in article 7(6); the alternative proposal on article 7; amendment to article 35(2).

국제투자중재에서 임시적 처분과 국내절차와의 관계

이재우 (사)한국국제경제법학회 2022 국제경제법연구 Vol.20 No.1

Interim measures are any temporary measures ordered by the arbitral tribunal to preserve the rights of the parties and maintain the status quo pending the issuance of the award by which the dispute is finally decided. The authority of arbitral tribunals to order interim measures comes from the agreement of the parties as provided in the applicable investment treaty, or the relevant arbitration rules including ICSID arbitration rules and UNCITRAL arbitration rules. These rules generally set out conditions for the granting of interim measures. Under the jurisprudence of the investment arbitration cases, two general requirements are often invoked for rendering of interim measures; urgency and a threat of substantial or irreparable harm. In the meantime, in recent years, a number of investment arbitral tribunals have issued interim measures to suspend or dismiss pending litigation proceedings or criminal proceedings in order to protect the tribunals’ jurisdiction to decide the parties’ dispute or the parties’ procedural right to access to witness. Although international law generally recognizes the binding nature of interim measures, arbitral tribunals lack the coercive power of state courts. Therefore, in order to achieve the efficiency of interim measures, it needs to be considered that investment arbitration treaty incorporate relevant provisions on the recognition and enforcement of interim measures as provided in UNCITRAL model law on international commercial arbitration. 투자중재가 진행되는 중에 일방당사자가 절차의 원활한 진행을 방해하여 상대방의 정당한 절차적 권리를 침해하거나 판정의 집행 대상인 재산을 임의로 처분하는 등, 중재를 통한 권리구제를 방해하는 경우 중재판정부가 이를 적절히 규율하는 것이 필요한데, 이를 위하여 중재절차 내에서 자주 활용되는 수단이 임시적 처분이다. 중재판정부가 당사자의 요청에 따라 임시적 처분을 내릴 수 있는 권한은 적용될 투자협정 또는 중재규칙의 관련 규정에 근거한다. 이들 절차규범에서는 임시적 처분의 요건에 대하여 대략의 기준만을 정하고 있는데 실제 사건에서 가장 빈번하게 인용되는 요건은 사안의 긴급성과 회복할 수 없는 손해의 발생 가능성이다. 한편 임시적 처분이 요구되는 상황은 다양한데, 오늘날 투자중재에서 임시적 처분과 관련하여 종종 문제되는 것은 중재의 대상과 동일한 사안을 두고 국내절차 예컨대 투자유치국의 법원을 통한 소송이나 또는 형사절차를 진행하는 경우이다. 중재판정부는 이러한 상황에서 당사자가 요청하는 임시적 처분에 대하여도 앞서 언급한 요건을 적용하면서도, 투자자의 손해와 임시적 처분으로 인해 피신청국이 입게 될 피해 간에 비교형량을 고려하고 또한 피신청국의 정당한 법집행과 관련한 주권 행사를 침해하지 않도록 신중을 기하였다. 다만 중재판정부가 내린 임시적 처분을 당사자가 자발적으로 이행하지 않는 경우 문제될 수 있는데, 중재절차 내에서 중재판정부가 이를 강제할 수 있는 권한은 없고 법정지 법원의 협조를 구하여야 한다. 따라서 임시적 처분의 승인․집행에 관한 모델중재법의 관련 규정과 각국의 입법례를 참고하여, 투자협정 또는 적용될 절차규범에 이를 반영하는 방안을 고려할 수 있을 것이다.

Review on Interim Measure of International Commercial Arbitration in SFTZ

마광 ( Ma Guang ),전첨 ( Tian Tian ) 제주대학교 법과정책연구원 2017 국제법무 Vol.9 No.1

With the low cost, the finality and high security, International commercial arbitration has become the main means to solve international trade and investment disputes. However, due to the weak coercion of arbitration, thinking about how to guarantee the conduct of arbitration has become an important issue which affect the validity of arbitration, thus, the interim measures become the irreplaceable key of international commercial arbitration. < The Arbitration Rules of The China (Shanghai) Free Trade Area > set rules about interim measures, which is in line with international practice. In the promotion of institutional innovation and boosting the development of the free trade area is of great significance, but thinking the arbitration rules of the free trade area slightly, due to the lack of regulations and fuzziness, we may face many difficulties in the future, such as ineffective enforcement of decision making, double security and the “nullity” of the emergency tribunal. Therefore, it is necessary to conscientiously learn international experience in the future, combining with the work practices of the FTA, creating a rules based international arbitration system. The article first introduced the meaning, character, type and function of the system of interim measures in international commercial arbitration, and then introduced the system from both the issue and enforces of the interim measures. Also, comparing the rules of interim measures in SFTZ and other areas. Finally, the article discussed the practice of the interim measures in SFTZ, that is, from the introduction of the system to the construction of the relevant extension system, such as the extension of the interim measures, the introduction of the emergency arbitration tribunal system and the permission. In addition, it can not be neglected that many difficulties and challenges will be faced in the construction of FTA arbitration rules, such as implementation of the tribunal`s power of decision, the vagueness of the security and the connection between the emergency tribunal and other institutions.

중국 상사중재에서의 임시적 처분 조치에 관한 연구

탕칭,김해주,박은옥 한국무역학회 2023 貿易學會誌 Vol.48 No.4

국제상사중재에서 중재판정을 효율적으로 집행하기 위해 중재판정부가 중재판정을 내리기 전에분쟁 당사자의 권리 혹은 재산을 즉각적으로 보호해주는 임시적 처분조치는 반드시 필요한 제도이고많은 국가에서 중재판정부가 임시적 처분조치를 내릴 수 있도록 하고 있다. 중국상사중재에서도 임시적 처분조치를 인정하고는 있으나 중국의 경우에는 그 절차상 법원의 개입이 반드시 필요한데 이는 국제중재의 발전 방향과 맞지 않는다는 비판이 있다. 하지만 최근 중국도 중재활성화 측면에서주요 중재기관들의 규칙을 개정함으로써 임시적 처분조치 부분에서 법원의 간섭을 최소화하는 방향으로 변화를 추구하고 있다. 이에 본 논문은 상사중재에서 임시적 처분의 국제적 추세를 먼저 살펴보고 중국 상사중재에서 임시적 처분조치가 어떤 방향으로 발전해 나가는지를 관련 사례와 법규를분석하여 살펴보고자 한다. 이러한 연구를 통하여 한국 기업이 중국기업과 상사중재로 분쟁을 해결하고자 할 때 어떤 방식으로 임시적 처분 제도를 활용해야 하는지에 대한 실무적인 시사점을 제시하고자 한다. In international commercial arbitration, interim measures play a crucial role in enforcing arbitral awards by prohibiting a party from hiding assets or destroying any evidence which are critical during arbitral proceedings before the arbitral tribunal renders a final award. While Chinese commercial arbitration system acknowledges interim measures, it has faced criticism for perceived deviations from the evolving international arbitration trends. Nevertheless, recent developments indicate that China is actively aligning itself with the global trend in promoting international commercial arbitration, leading to notable changes in interim measures. This paper aims to examine the prevailing international trends of interim measures in commercial arbitration and conduct an analysis of the current status of interim measures in Chinese commercial arbitration by analysing some relevant cases and regulations. By doing so, it can provide practical insights to Korean companies on how to effectively utilize interim measures when they settle their disputes by arbitration with Chinese counterparts.

UNCITRAL 모델중재법의 개정

강병근(Kang Pyoung-Keun) 한림대학교 법학연구소 2006 한림법학 FORUM Vol.17 No.-

At its thirty-ninth session in July 2006, the UNCITRAL adopted its Working Group II's suggestions on the revised provisions of articles 7, 17, 35(2) of the Model Law and on the introduction of a new provision on interpretation of the Model Law as article 2 A. The Working Group II has been considering on how to update domestic arbitration laws on the question of the writing requirement for the arbitration agreement and interim measures of protection since its thirty-second session in March 2000. As for the issue of writing requirement, the Working Group II decided to present to the Commission two options at its forty-forth session in January 2006. The first option describes detailed provisions on the writing requirements. With these revised provisions, arbitration agreements made orally or exchanged through data messages could satisfy the writing requirement. The second option deletes the writing requirement altogether. The Commission has also adopted a suggestion made by its Working Group II that “a modified understanding of the writing requirement be reflected in article 35(2).” The revised article 35(2) provides that only the original award or a certified copy thereof be supplied for the enforcement of an award. As for the issue of interim measures of protection, the Working Group II agreed to create a new chapter, numbered chapter IV bis of the Model Law, for the provisions of interim measures and preliminary orders. The concept of preliminary order is devised in reflection of the strong objection to the idea of ex parte interim measures. The Commission decided to accept the suggested provisions to be inserted into the Model Law as a new chapter IV A, for theenforcement of interim measures by an arbitral tribunal to be made through a competent court, for court-ordered interim measures in support of an arbitration, and for the introduction of the regime of preliminary order into the new chapter. Under the new regime, interim measures could be recognised or enforced by a competent court, but, the preliminary order shall not be subject to enforcement by a court.

중재법의 개정방향 -국제상사중재의 측면을 중심으로-

石光現 ( Kwang Hyun Suk ) 서울대학교 법학연구소 2012 서울대학교 法學 Vol.53 No.3

The current Korean Arbitration Act (KAA) has been modelled on the Model Law on International Commercial Arbitration (Model Law) adopted by the United Nations Commission on International Trade Law (UNCITRAL) in 1985. Therefore, one could say that Korea has succeeded in introducing well-organized arbitration law. As is widely known, the Model Law has been revised by the UNCITRAL in 2006. The principal contents of the revised Model Law (Revised Model Law) adopted in 2006 relate to the form of the arbitration agreement and to interim measures. The text of the provision on the form of the arbitration agreement in Article 7 of the Model Law was modelled on Article II (2) of the New York Convention of 1958. The revision of Article 7 is intended to reflect the practice in international trade and technological developments. As to the interim measures, the Revised Model Law has introduced a new chapter on interim measures and preliminary orders (chapter IVA). The revision of Article 17 on interim measures was considered necessary in light of the fact that interim measures are increasingly relied upon in the practice of international commercial arbitration. The Revised Model Law also includes an enforcement regime for interim measures considering that the effectiveness of arbitration often depends on whether interim measures could actually been forced. The document requirements under Article 35(2) were also amended in 2006 to liberalize formal requirements and reflect the amendment made to Article 7 on the form of the arbitration agreement. Against the foregoing background, the author suggests that Korean legislators consider the following points for amendment in the future : ① form of arbitration agreement; ② interim measures and preliminary order; ③ documents necessary for recognition and enforcement of foreign arbitral award; ④ requirements for the enforcement of arbitral award, especially the enforcement judgment (exequatur); ⑤ arbitrability; ⑥ law applicable to the substance of the dispute; ⑦ challenge of arbitral award and the validity of exclusion agreement under the Korean Arbitration Act; ⑧ consumer protection in international commercial arbitration; ⑨ status of the Korean Commercial Arbitration Board; and ⑩ other issues such as enhancement of expertise of Korean courts involved in arbitration and confidentiality and costs of arbitration. Finally, the author urges Korean lawyers who play important roles in international commercial arbitration to make greater contribution to the development of the doctrine of arbitration.

국제상사중재에서 잠정적 구제조치에 관한 연구

홍성규(Sung-Kyu Hong) 한국무역연구원 2011 무역연구 Vol.7 No.4

Interim measures of protection play a very important role in international commercial arbitration. During the course of an arbitration, it may be necessary for the arbitral tribunal or a national court to issue interim measures of protection intended to preserved evidence, to protect assets, or in some other way to maintain the status quo pending the outcome of the arbitration proceedings themselves. The important of and the need for interim measures of protection in arbitration have grown immensely over the last twenty years. The growth owes much to globalisation and increased confidence in arbitration. The growth is further related to the longer duration of arbitration proceedings due to globalisation, the complexity, bureaucratisation, or institutionalisation of arbitration. This paper aims to demonstrate that arbitration should, in principle, be the forum to grant interim measures of protection and that the role of courts is limited to assistance to arbitration. However, there are several questions and uncertainties related to such measures. These questions and uncertainties weaken the effectiveness of arbitration. Thus, they constitute a threat to its future. This thesis further aims to identify, analyse, clarify, and offer solutions to those problems and uncertainties. Solutions will be offered for enhancing effectiveness of arbitration in regard of interim measures of protection.