중재의 대상적격의 의의 및 내용

The Definition and the Substance of the Arbitrability of the Subject-matter of a Dispute

Arbitration is the system of resolving disputes not by the adjudication of a national court but by the award of an arbitrator or arbitrators. To settle disputes by arbitration, it should be concluded that the arbitration agreement which is implied that the parties agree to submit to the arbitral award about all or certain disputes which have arisen or which may arise between them in respect of defined legal relationships. It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. Therefore, the parties may agree to arbitrate disputes relating to the rights that they freely dispose of. Besides, they may have the freedom to choose arbitration as the form of a dispute resolution. Because arbitration is a private proceeding with public consequences that some types of dispute are reserved for national courts, whose proceedings are generally in the public domain. It is this sense that they may not be the object of arbitration. After all, it could be the object of arbitral proceedings that disputes which are capable of a settlement by arbitration.