• 한국중재학회지:중재연구
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• 제12권2호
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• pp.303-336
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• 2003

Incorporation of an arbitration clause by reference to other documents occurs in many international business transactions. The reference is either to another document that contains arbitration clause or to trading rules which contain the arbitration clause, without the main contract mentioning that arbitration has been agreed upon. In fact, incorporation by reference in to a contract of an arbitration clause set forth in another agreement is deemed valid in any number of circumstances, even when the parties to the two contractual instruments are not the same. Difficulties arise when, instead of an express arbitration provision, a contract contains a clause which refers to the trading rules of a certain trade association, so-called external arbitration clause. The U.S. courts which will presume that the parties intended to arbitrate under a particular set of rules when they expressly mentioned arbitration in their agreement, have sometimes refused to enforce contract clauses that do no more than refer to particular trading rules, even if these rules contain provisions binding the parties to arbitrate their disputes. The courts in such cases tend to be careful in determinig whether intent to arbitrate is present. In maritime contracts, the arbitration clause in a charter party is often referred to in the bill of lading. Such reference usually is held binding upon the parties to the contract of carriage, their knowledge of such practice being presumed. A nonsignatory may compell arbitration against a party to an arbitration agreement when that party has entered into a separate contractual relationship with the nonsignatory which incorporates the existing arbitration clause. If a party's arbitration clause is expressly incorporated into a bill of lading, nonsignatories … who are linked to that bill … may be bound to the arbitration agreement of others. An arbitration clause in a charterparty will be incorporated into a bill of lading if either - (a) there are specific words of incorporation in the bill, and the arbitration clause is so worded as to make sense in the context of the bill, and the clause dose not conflict with the express terms of the bill; or (b) there are general words of incorporation in the bill, and the arbitration clause or some other provision in the charter makes it clear that the clause is to govern disputes under the bill as well as under the charter. In all other cases, the arbitration clause is not incorporated into the bill.

• 한국건설관리학회:학술대회논문집
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• 한국건설관리학회 2001년도 학술대회지
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• pp.31-36
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• 2001

건설공사계약은 다양한 이해관계자의 관여, 장기간에 걸친 계약이행, 계약 외적 환경에 의한 상당한 영향 등으로 인해 계약당사자간 분쟁발생가능성이 높다. 이러한 분쟁발생시 당사자의 주장의 정당성은 계약문서나 관계법령 등에서의 규정에 의하여 판단되기 때문에 이에 대한 정확한 이해와 공사관리가 필요하다. 본 연구는 구체적 판례나 중재판정 등을 중심으로 건설공사의 원활한 관리가 가능하도록 계약의 바람직한 해석방향을 제시하고자 한다.