하도급계약상 중재조항과 국내 강행규정의 역외 회피 = Extraterritorial Evasion of Domestic Mandatory Rules through Arbitration Clauses in Subcontracting Agreements

다국어 초록 (Multilingual Abstract)

This study examines the phenomenon of “extraterritorial evasion of mandatory provisions” in domestic subcontracting relationships in Korea, where two Korean parties performing a subcontract substantially in Korea nevertheless incorporate an arbitration clause selecting a foreign seat and a foreign governing law, thereby weakening the practical application and enforcement of the Act on Fair Transactions in Subcontracting (the “Subcontracting Act”). The study analyzes, first, how such clauses operate in three stages—(i) shifting dispute resolution to a foreign arbitral forum, (ii) replacing the substantive normative framework through foreign governing law, and (iii) relegating control to the post-award enforcement stage in Korea under the principle of prohibition of review on the merits.
Against this background, the paper addresses two core legal questions. First, at the litigation stage in Korea, it considers whether and on what grounds Korean courts may deny a stay/dismissal based on the arbitration clause under the Korean Arbitration Act, focusing on doctrinal avenues grounded in the Act on the Regulation of Terms and Conditions (unfair terms; duty to explain material terms) and the anti-evasion provision of the Subcontracting Act, in conjunction with the Private International Law Act and the concept of internationally mandatory rules (overriding mandatory provisions). Second, at the enforcement stage, it evaluates whether recognition and enforcement of a foreign arbitral award that effectively circumvents the Subcontracting Act may be refused in Korea under Article 5(2) of the New York Convention, particularly on the grounds of arbitrability and public policy (international public policy). The article proposes a tiered, provision-specific approach: arbitrability should be generally affirmed for subcontract disputes insofar as private-law remedies remain available, while refusal of enforcement should be narrowly reserved for awards whose concrete effects seriously undermine Korea’s core legal order—especially the Subcontracting Act’s essential protections relating to unfair cost-shifting, retaliation prohibitions, and misuse of technical information.