2022년 개정 국제사법에 따른 국제재판관할합의의 제문제

Abstract

The Act on Private International Law (APIL), which came into effect in July 2001, provided for general principles on international jurisdiction in its Article 2, and for rules of international jurisdiction protective of socio-economically weaker parties, such as consumers and employees, in its Articles 27 and 28. Although the Supreme Court applied Article 2 of the APIL, it disregarded paragraph 2 and applied only paragraph 1 and drew the conclusion it desired through a ‘case-by-case analysis’, thereby undermining legal stability. To improve this situation, the Ministry of Justice promoted the revision of the APIL, and finally, on January 4, 2022, the Amended APIL (the “Amended APIL”) containing detailed rules of international jurisdiction was promulgated. Among various issues regarding the rules of international jurisdiction included in the Amended APIL, those surrounding the jurisdiction agreement (Article 8) are dealt with in the present article, focusing on the changes brought by the Amended APIL. The Amended APIL introduced Article 8 reflecting the contents of the Choice of Court Convention (especially Article 6) of the Hague Conference on Private International Law (the “Convention”), which came into effect on October 10, 2015. Article 8 of the Amended APIL sets out the admissibility requirements (paragraph 1), formal validity (paragraph 2), presumption of exclusiveness (paragraph 3), independence of jurisdiction clause (paragraph 4), and the effect of an exclusive jurisdiction agreement in favor of foreign courts (paragraph 5), and unlike other articles, it governs not only cases where Korea has international jurisdiction but also cases where a foreign court has jurisdiction (however, paragraph 5 applies only to agreements on exclusive jurisdiction in favor of foreign courts). In particular, the law governing the validity of the jurisdiction agreement is specified as “the law of the country having international jurisdiction according to the jurisdiction agreement (including the choice of law rules)”, which is also a reflection of the position taken by the Convention. The order of discussion is as follows: first, the importance of international jurisdiction agreements and an overview of jurisdiction conferred by agreement (Chapter II), Second, types of international jurisdiction agreements (Chapter III), Third, law applicable to jurisdiction agreements (Chapter IV), Fourth, admissibility requirements of the jurisdiction agreement (Chapter V), Fifth, formal validity of jurisdiction agreement (Chapter VI), Sixth, effect of jurisdiction agreement (Chapter VII), Seventh, violation of exclusive jurisdiction agreement and an anti-suit injunction (Chapter VIII), and Eighth, special issues on the international jurisdiction agreement based on contract terms and conditions in B2B transactions (Chapter IX). Since the Amended APIL has partly adopted the position of the Convention, Korea needs to consider whether to accede to the Convention. Particular attention will be needed to identify ways in which jurisdiction agreements excessively excluding Korea’s international jurisdiction can be controlled properly. In addition, following the Google case, which recently attracted the attention of Korean lawyers and where the choice of court was effected by a jurisdiction clause in the contract terms and conditions, it is necessary to further review the issues surrounding a jurisdiction agreement based on the contract terms and conditions, and in the same vein consider amending the General Terms and Conditions Act of Korea.