국제상사중재에서 흠결 있는 중재조항(pathological arbitration clauses)의 유효성에 관한 소고 ⎯ 대법원 2025. 1. 23. 선고 2024다243172 판결에 대한 평석을 중심으로

초록

When there are inconsistencies, ambiguities or uncertainties in arbitration clauses, the arbitration clauses are called to be pathological. The defects in the so-called pathological arbitration clauses are liable to disrupt the smooth progress of the arbitral proceedings. Furthermore, pathological arbitration clauses tend to cause a recalcitrant party to challenge the validity of the arbitration agreement or the jurisdiction of the arbitral tribunal. The court seized of the disputes must determine the validity of pathological arbitration clauses as arbitration agreements. In determining the issue, it must be borne in mind that the essential requisite of the valid arbitration agreement is nothing more than the parties’ intention to refer their disputes to arbitration. Considering the essential core of the arbitration agreement, the appropriate test for determining the validity of pathological arbitration clauses as arbitration agreements should also be whether it is demonstrated that the parties have effectively reached the agreement to arbitrate. On top of this, the general principle that court should uphold arbitration by endeavoring to give full effect to the intention of parties to submit their disputes to arbitration is also applicable to pathological arbitration clauses. In this thread, provided that there is the parties’ intention to refer disputes to arbitration, the courts must give effect to pathological arbitration clauses by reconciling inconsistencies or uncertainties with the parties’ intention to arbitrate or deleting the pathological elements in order not to frustrate the parties’ choice of arbitration. Therefore, it can be said that the reference to non-existent arbitral institutions or the failure to include the incidental terms of the arbitration agreement such as seat of arbitration, arbitration rules or arbitral institution does not render the arbitration clause invalid as long as the parties’ agreement to arbitrate has clearly been established.

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