미국에 있어서 비서명자에 대한 중재합의의 효력 = Enforcement of Arbitral Agreement to Non-Signatory in America

다국어 초록 (Multilingual Abstract)

Arbitration is fundamentally a matter of contract, whereby contractual parties may only be required to submit a dispute to arbitration pursuant to their formal agreement. However, there are several important exceptions to this rule that have developed under common law notions of implied consent.
These doctrines may serve either to benefit or to harm a nonsignatory to an arbitral agreement because either (1) the nonsignatory may compel a signatory to the agreement to arbitrate a dispute or (2) the nonsignatory may be compelled to arbitrate a dispute despite never having signed an arbitration agreement.
The Court has a long-standing domestic policy of favoring arbitration, and these doctrines reflect that policy.
1. incorporation by reference
An arbitration clause may apply to a party who is a nonsignatory to one agreement containing an arbitration clause but who is a signatory to a second agreement that incorporates the terms of the first agreement.
2. assumption
An arbitration clause may apply to a nonsignatory who has impliedly agreed to arbitrate. Under this theory, the nonsignatory's conduct is a determinative factor. For example, a nonsignatory who voluntarily begins arbitrating the merits of a dispute before an arbitral tribunal may be bound by the arbitrator's ruling on that dispute even though the nonsignatory was not initially required to arbitrate the dispute.
3. agency
A nonsignatory to an arbitration agreement may be bound to arbitrate a dispute stemming from that agreement under the traditional laws of agency. A principal may also be bound to arbitrate a claim based on an agreement containing an arbitration clause signed by the agent. The agent, however, does nof generally become individually bound by executing such an agreement on behalf of a disclosed principal unless there is clear evidence that the agent intended to be bound.
4. veil piercing / alter ego
In the corporate context, a nonsignatory corporation to an arbitration agreement may be bound by that agreement if the agreement is signed by its parent, subsidiary, or affiliate.
5. estoppel
The doctrine of equitable estoppel is usually applied by nonsignatory defendants who wish to compel signatory plaintiffs to arbitrate a dispute. This will generally be permitted when (1) the signatory must rely on the terms of the contract in support of its claims against the nonsignatory, or (2) the signatory alleges that it and the nonsignatory engaged in interdependent misconduct that is intertwined with the obligations imposed by the contract.
Therefore, this article analyzed these doctrines centering around case-law in America.

목차 (Table of Contents)

• I. 서론
• II. 중재에 대한 법률적ㆍ정책적 입장
• III. 중재합의의 효력에 관한 일반적 법리
• IV. 중재합의문언의 명확화
• V. 결론

참고문헌 (Reference)

1 James M. Hosking, "The Third Party Non-Signatory's Ability to Compel International Commercial Arbitration : Doing Justice Without Destroying Consent" Disp. Resol. L. J 2004

2 Anthony M. Dileo, "The Enforceability of Arbitration Agreements by and Against Nonsignatories, 2 J. Am Arb, 2003"

3 Margo E. K. Reder, "Punitive Damages Are a Necessary Remedy in Broker-Customer Securities Arbitration Cases" Ind. L. Rev 1995

4 Michael H. Baget, "Not Party? Not Necessarily : Binding Third Parties to Maritime Arbitration" Tul. Mar. L. J 2002

5 Frank Z. Laforge, "Inequitable Estoppel : Arbitrating with Nonsignatory Defendants Under Grigson v. Creative Artists" Tex. L. Rev 84-, 2005

6 Alexandra A. Hui, "Equitable Estoppel and the Compulsion of Arbitration" 60 Vand. L. Rev 2007

7 "David v. Wilson텮manda J. Flanagan, "Keeping up with...: Arbitration for Nonsignatories : Having Your Contract and Defeating It Too?", 43 Houston Lawyer, 2006"

8 Norman T. Braslow, "Contractual stipulation for Judicial Review and Discovery in United States-Japan Arbitration Contracts" Seattle U. L. Rev 2004

9 Michael P. Daly, "Come One, Come All : The New and Developing World of Nonsignatory Arbitration and Class Arbitration" U. Miami L. Rev 2007

10 Jaime D. Byrnes, "Arbitration, Consent and Contractual Theory" 8 Harv. Negotiation L. Rev 2003

11 Thomas E. Carbonneau, "Arbitral Justice : The Demise of Due Process in American Law" Tula. L. Rev 1996