국제상사계약 체결에서 중재합의조항에 관한 실무적 고려사항

초록

The dispute resolution clause is usually found near the end of a contract, alongside such items as addresses for serving notices and other general provisions. It may ultimately prove to be the most important provision of all. Rights and obligations carefully defined elsewhere in the contract are only as reliable as the courts or tribunals called upon to give effect to them. Underlying the arbitration process in almost every case will be an agreement to arbitrate, through which the parties convey not just their willingness to have their dispute resolved by arbitration, but also aspects of the process which they wish to adopt. In light of this, ensuring an effective arbitration clause that reflects the parties' needs and wishes is a crucial step in the process. With astonishing regularity, however, international contracts contain defective dispute resolution clauses. Even lengthy and complex agreements, drafted by negotiators whose understanding of everything else is highly sophisticated, often reflect ignorance of the mechanisms of international dispute resolution. This article is designed to help achieve effective arbitration clause which unambiguously embody the parties' wishes. It reflects understandings of the best current international practices and provides both a framework and detailed provisions for drafters of international arbitration clauses. Thus, this article generally provides the essential elements of an effective clause and what features of the process are open to parties to determine in advance. It also informs parties both of the choices available and the pitfalls to avoid. This article tackles some of the more complex drafting issues which arise when an arbitration agreement goes beyond the typical bipartite arrangement and involves multiple parties and/or a range of related contractual agreements. Further, it deals with the special drafting considerations that arise when mainland China is either the place of arbitration or the place of possible enforcement of an arbitral awards. As a result, this article is applicable and appropriate not just for simple, straightforward arbitration clauses, but also for the most complex, and indeed the spectrum between the two.

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