중국내 외국인 투자기업의 국제중재 약정에 관한 실증적 연구: 중국 법원의 국제성 요소 인정기준을 중심으로

Abstract

Prior to 2 010, C hinese c ourts allowed parties to u se i nternational a rb itration t hrough a rb itration agreements o nly if t here w ere internationality f actors o n the sub ject, ob ject a nd l egal f acts o f the contract. However, due to the rapid economic growth and internationalization, various types of contracts and transactions have emerged, so it is no longer possible to judge the internationality of related contracts based on existing criterion. Accordingly, the Supreme People’s Court of China enacted judicial interpretations such as ‘Interpretation of the Law on the Application of the International Civil Relations’ in 2012, ‘Interpretation on the Application of the Civil Procedure Act’ in 2015, and ‘Opinion on the Guarantee of Free Trade Zones’ in 2016, and the acceptance scope of internationality factors is expanded. As a result, the extent to which Chinese parties can resolve disputes through international arbitration has been expanded, and if the subject, object, and legal facts of the contract are consistently related to foreign countries, it is recognized that there is a factor of internationality and disputes can be settled through international arbitration. Therefore, when Korean investment companies in China attempts to s ettle disputes b y arb itration u sing an arb itration i nstitute o ther than China, the c ompanies s hould make arbitration agreements considering that a factor of a Korean investment company is not recognized as an internationality factor but it is recognized as a factor of internationality when the foreign goods are traded in China.