[중재판정취소][공2002.1.15.(146),151]
Whether a party may set aside an arbitral award on the ground of a defect in the procedure of appointing an arbitrator in case where the arbitral award was made because the party did not raise any objection in the arbitral proceedings, contrary to a party’s direct appointment agreement (negative)
In the terms of the arbitration agreement, the appointment of the arbitrator among the remaining candidates by the KCA while taking the procedure of appointing the arbitrator by the Secretariat while excluding all the arbitrators designated by the Secretariat in the first order is a ground for cancellation of the arbitration award, unless there are special circumstances that the appointment of the arbitrator under Article 13 (1) 1 of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 1999) constitutes "when the appointment of the arbitrator is not in accordance with the arbitration agreement". However, the two parties did not set the period of appointment of the arbitrator under the arbitration agreement, and the two parties did not appoint the arbitrator. Although the KCA did not notify the parties of the appointment of the arbitrator, the parties and their representatives, who can be deemed to have been well aware of the terms of the appointment of the arbitrator, were present at the first hearing and did not raise any objection concerning the appointment of the arbitrator before the KCA under the arbitration agreement, the parties to the arbitration agreement can not be deemed to have agreed upon the first arbitrator under the arbitration agreement.
Articles 4 (Article 12 of the current Arbitration Act), 13(1) (see Article 36(2) of the current Arbitration Act), 20, 21, and 22 of the former Arbitration Rules (amended by the Arbitration Rules of April 27, 200), Articles 20, 21, and 22 of the former Arbitration Rules (amended by the Arbitration Rules of December 31, 199)
Korea Gas Corporation (Law Firm Barun, Attorneys Cho Young-han et al., Counsel for the plaintiff-appellant)
rink Co., Ltd. (Attorney Lee Im-hoon, Counsel for the defendant-appellant)
Seoul High Court Decision 99Na49950 delivered on May 18, 2000
The appeal is dismissed. The costs of appeal are assessed against the plaintiff.
We examine the grounds of appeal.
1. The court below acknowledged the following facts based on the employment evidence.
A. On May 20, 1994, the Plaintiff entered into a contract with the Defendant to purchase a valve of KRW 561 to KRW 3.538,871,800,00. The Plaintiff agreed that the final settlement of the dispute under this contract shall be based on the arbitration system under the former Commercial Arbitration Rules (amended by the Arbitration Rules of April 27, 2000; hereinafter the same shall apply) of the Republic of Korea and the Korean Commercial Arbitration Board (hereinafter referred to as the “Financial Resources”), and three arbitrators shall be appointed, and the Plaintiff and the Defendant shall appoint one arbitrator and appoint a third arbitrator under the agreement of both parties, and if the agreement of both parties is not reached, one of the arbitrators shall be appointed as an arbitrator.
B. When a dispute arises between the Plaintiff and the Defendant due to delay in the payment period and defect of products, the Defendant filed an application for arbitration with the Plaintiff on June 27, 1997, and the arbitral tribunal did not follow the procedure for appointing an arbitrator under Article 20 (Direct Selection by Party) of the former Commercial Arbitration Rules, which is the procedure under the instant arbitration agreement, but notified the Plaintiff and the Defendant of the desired order of appointment by sending the list of candidates to the Plaintiff and the Defendant on July 1 of the same year and sending them to the arbitral tribunal. Accordingly, the arbitral tribunal set the desired order and notified the Plaintiff and the Defendant of the desired order of appointment. The arbitral tribunal appointed a candidate with a higher priority in the aggregate points among the candidates as an arbitrator. The Plaintiff and the Defendant excluded the candidates designated by the Plaintiff and the Defendant as the first priority of the presiding arbitrator or other arbitrators, and notified Nonparty 1, Nonparty 2, and Nonparty 3 of the appointment of the arbitrator who accepted the appointment among them.
C. On the other hand, the Plaintiff appointed a law firm as the representative of this arbitration case. On October 6, 1997, the legal firm's attorney 4 and non-party 5 appeared on the first day of the arbitration case and stated on the merits such as defense against the Defendant's application for arbitration without raising any objection as to the appointment of the arbitrator. The Defendant's representative director or his representative also stated on the merits without raising any objection as to the appointment of the arbitrator. After that, the Plaintiff's representative or the Defendant's representative director or his representative was present on the first day of the arbitration, the Plaintiff's presence on the spot inspection date including the on-site inspection, but no objection was raised as to the appointment of the arbitrator.
D. On January 13, 1999, the arbitral tribunal rendered an arbitral award against the Plaintiff, as stated in the judgment of the court below, that the Plaintiff would pay a certain amount of money to the Defendant. On the 27th day of the same month, the original copy of the instant arbitral award was served on the Plaintiff and the Defendant. At that time, the Plaintiff paid money to the Defendant according to the content of the instant arbitral award, and fulfilled all of
2. Furthermore, according to the above facts of recognition, the court below determined that the plaintiff and the defendant's representative present all the parties on the date of the first hearing to be well aware of the appointment of the arbitrator and appoint three arbitrators from among the remaining candidates without excluding all the arbitrators appointed by the plaintiff and the defendant in the first priority order constitutes "when the appointment of the arbitrator is not under an arbitration contract" under Article 13 (1) 1 of the former Arbitration Act, but the arbitration contract of this case does not specify the period of appointment of the arbitrator, and the plaintiff and the defendant did not appoint the arbitrator. Thus, even if the Secretariat did not notify the parties of the appointment of the arbitrator, the court below decided that the plaintiff and the defendant's representative appeared in the first hearing and did not have any objection to the appointment of the arbitrator before the arbitral tribunal, and they did not have agreed upon the appointment of the arbitrator at the time of the first hearing and the defendant's appointment of the arbitrator at the time of the first hearing.
3. In light of the records, the above fact-finding and decision of the court below are acceptable, and there is no error of law by misapprehending the legal principles as to the cancellation of the arbitral award, or by mismisunderstanding facts against the rules of evidence.
The grounds of appeal disputing this issue are rejected.
Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices on the bench.
Justices Yoon Jae-sik (Presiding Justice)