국제프랜차이즈 계약에서의 仲裁合意 및 그 유효성에 관한 小考 - 서울중앙지방법원 2020. 4. 1. 선고 2018나63343 판결의 검토 -

초록

Various international transactions are emerging in our society, and one of them is the international franchise contract. Recently, a ruling on international franchise contracts was issued, and this paper specifically reviewed the ruling. In that case, there exists an arbitration agreement between the Netherlands-based franchise headquarters and Korea-based franchisees, and the validity of the arbitration agreement was questioned. For the review of this, the decision of governing law should be preceded, and both the Netherlands and Korea are members of the New York Convention, so it should be reviewed based on the New York Convention. On the basis of the New York Convention, according to the expressed intention of the parties, the governing law to the validity of the arbitration agreement becomes Dutch law. The ruling looked at internationally mandatory rules and public policy based on our International Private Law Act, and such an approach is expected to be possible as long as we hold a trial in our court. I generally agree with that conclusion, but there are inaccuracies in individual analysis or use of terminology. On the other hand, the ruling is thought to have thrown new concerns. It is a matter of how to handle arbitration agreements in the future, that are a significant burden to domestic parties in contracts with international elements, such as the franchise contract. Despite the prediction of similar disputes, it may be dangerous to simply turn away with the logical judgment that our law cannot be applied and to turn all possibilities that may arise in a transaction relationship to the party"s burden. In making legislation to correct power imbalances, we should consider that such a relationship has an international character.

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