영국과 미국의 법관에 의한 중재 및 그 도입 가능성에 관한 연구 = A Research on Judge-run Arbitration in the U.K., and the U.S., and the Possibility of Introducing Judge-Arbitrator

다국어 초록 (Multilingual Abstract)

With regard to the sitting judge-run arbitration, common law countries take different positions. In England and Wales, Commercial Court judges and Technology & Constuction Court(TCC) judges may act as arbitrators based on Section 93 of the Arbitration Act 1996. In Scotland, Section 25 of the Arbitration (Scotland) Act 2010 has allowed judge-arbitrators to deal with cases involving commercial disputes. On the other hand, Delaware Court of Chancery Arbitration(based on 10 Del. Code § 349, Court of Chancery Rules 96-98) was the only case in the United States and the Court found that the Delaware’s Arbitration program violated First Amendment Right of Public Access in Delaware Coalition for Open Government v. Strine. Delaware state introduced new chancery arbitration process(Delaware Rapid Arbitration Act; DRAA) not permitting judge-arbitrator any more.
Privacy and confidentiality in judge-run arbitration may be controversial issues in terms of constitution, civil procedure rule and arbitration law. The implementation conditions of the new system have not been met in Korea. The introduction of judge-run arbitration is difficult at this stage.
Court should have a friendly attitude towards arbitration and develop a series of ADR relating to arbitration. More retired judges are expected to act as arbitrators in the near future. Designating arbitration judges and making a specialist arbitration list in the court are desirable steps to meet the needs of businesses and lawyers.
This research also suggests the introduction of court-annexed arbitrations such as (i) an ‘arbitration program’ where standing mediators in court’s mediation centers around the nation act as arbitrators and (ii) a ‘med-arb program(linkage of mediation and arbitration)’ where standing mediators try to settle the disputes through mediation phase and arbitration phase. The new arbitration program can heighten the parties’ satisfaction with the decision-maker’s expertise and fairness, whereas it can lessen the burden of expenses. Support measures such as amendment of the legislation, additional appointment of standing mediators, education and training, maintenance of facilities are required for the realization of the proposed arbitration program.