남북중재규정 제정의 기본방향 = Basic Direction for the South and North Korea's Arbitration Rules

다국어 초록 (Multilingual Abstract)

Since the Agreement on Commercial Arbitration was signed by the Governments of South and North Korea last year, there has been quite a few discussions on the way for implementing the Agreement in both public and private sectors. The Department of Justice of South Korea was quite active in making the draft of arbitration rules representing the South Korean views in alliance with the Department of Reunification of South Korea and recently held an informal seminar to preview their draft.
On the other hand, the Korea Arbitration Association, a main body of commercial arbitration which are composed of professors and lawyers, were carefully watching the steps and the draft made by the Department of Justice. The reasons are to assure that not only shall the commercial arbitration rules comply with common norms of international arbitration but shall it be made to meet the needs of enterprises investing in the Special Economic District of Kaesung City in North Korea. The concerns of the Korea Arbitration Association can be accomplished if the Department of Justice would modify the provisions pointed out in the seminars.
Five general principles shall be brought into the attention in promulgating the commercial arbitration rules. First, it should comply with the Agreement on Commercial Arbitration signed by South and North Korea. Second, it should accept common rules contained in UNCITRAL arbitration rules. Third, it should boost the promptness of proceedings when a case was filed. Fourth, it should feature unique aspects of trade between South Korea and Korea by differentiating it from purely international trade between a country and a country. Lastly, it should combine the respective rules of both South and North Korea, currently in effect.
With the above five principles accomplished, it should be noted that the Agreement on Commercial Arbitration, the upper authority of arbitration rules, mandates the following features. It declared that arbitration be processed by three arbitrators. Single arbitrator is not permitted. Arbitration can be adopted even if an arbitration clause does not exist in an agreement by the parties, provided that the dispute arose out of the scope of the Agreement on investment Guarantee signed by South Korea and North Korea. It excluded quick and simplified procedures even if the amount of claim in arbitration is minimal. All the procedures should take a formal procedure. It let the double administration offices operate. One is to sit in Seoul of South Korea and the other is to sit in Pyongyang of North Korea. This would intimidate the fastness of procedures.
With the above principles and the features considered, each provision in the draft by the Department of Justice should be reviewed and suggested for change.

목차 (Table of Contents)

• Ⅰ. 일반원칙
• Ⅱ. 중재규정의 기본적 특징
• Ⅲ. 쟁점별 검토

참고문헌 (Reference)

1 "상사분쟁과 중재절차해설" 2003년4월.

2 "남북합의서의 최근 현황과 법적 과제" 2004년4월.

3 "남북 상사중재규정의 주요쟁점 및 제정방향" 법무부 남북 경협과정에서 예상되는 상사분쟁 해결의 바람직한 방향 2004년6월.