[1] The requirements for selective arbitration clause, which provides the method of dispute resolution or mediation, to have effect as an arbitration agreement

[2] Whether an objection to the existence or validity of an arbitration agreement is included in the "Objection to the Powers of the Arbitral Tribunal" under Article 17 (2) of the Arbitration Act (affirmative)

[3] In a case where the respondent does not raise an objection against a claim for arbitration under the selective arbitration clause of the Claimant until the respondent submits a written answer to the merits in accordance with Article 17(2) of the Arbitration Act, the validity of the said selective arbitration clause

[1] The selective arbitration clause, which provides for the method of dispute resolution, is effective as an arbitration agreement only when one of the parties to the contract selects the other party to the arbitration procedure, not an arbitration, and requests the other party to settle the dispute according to the procedure, and the other party is attending the arbitration procedure without any particular objection.

[2] Article 17 (2) of the Arbitration Act provides that "any objection to the jurisdiction of the arbitral tribunal shall be raised until the submission of a written response to the merits." The arbitral tribunal's power to make an objection to the absence of the arbitral tribunal's power is directly related to the existence or validity of the arbitral agreement, and therefore, "any objection to the jurisdiction of the arbitral tribunal" as referred to in the above provision includes an objection to the existence or validity of the arbitral agreement.

[3] Unless the respondent raises an objection against a claim for arbitration under the selective arbitration clause of the Claimant, as required by Article 17(2) of the Arbitration Act, that such objection may not be raised at the remainder of the arbitral proceedings unless the Respondent has submitted a written response to the merits, but the said selective arbitration clause has a final effect as an arbitration agreement.

[1] Articles 8 and 9(1) of the Arbitration Act / [2] Article 17(2) of the Arbitration Act / [3] Article 17(2) of the Arbitration Act

[1] Supreme Court Decision 2003Da318 decided Aug. 22, 2003 (Gong2003Ha, 1916) Supreme Court Decision 2004Da42166 decided Nov. 11, 2004 (Gong2004Ha, 2008)

The Korea High-Speed Rail Network Authority (Law Firm Multilater, Attorney Cheong-soo, Counsel for defendant-appellant)

Samsung Engineering Co., Ltd and four others (Attorneys Lee Im-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2004Na56372 delivered on January 14, 2005

The appeal is dismissed. The costs of appeal are assessed against the plaintiff.

1. According to the records, Article 49(1) of the General Conditions of the Contract which forms a part of the instant contract provides that "any dispute arising between the parties to the contract during the performance of the contract shall be settled by consultation." Paragraph (2) provides that "if an agreement under paragraph (1) is not reached within 30 days from the date of the occurrence of the dispute, such dispute shall be settled as follows." Paragraph (1) provides that "in accordance with the conciliation or arbitration under the Arbitration Act of the Conciliation Commission, etc. established by the provisions of the relevant Act," subparagraph 2 provides that "in the event an objection is filed against the conciliation under subparagraph 1, the court's decision which has jurisdiction over the location of the Korea High-Speed Construction Authority (hereinafter referred to as the "Korea High-Speed Construction Authority") (hereinafter referred to as the "Korea High-Speed Construction Authority") shall be determined on October 19, 201, the Defendants asserted that additional construction costs of the Corporation and construction costs of the Corporation shall be reduced by 19,710,800 won and damages for the construction contract shall be determined by 's.

In general, the settlement of disputes through conciliation cannot be ultimately conducted by the court's decision unless the parties reach an agreement. Furthermore, in light of the fact that Article 49 (2) Item 2 of the General Terms of Contracts of this case provides that if one party objects to conciliation under subparagraph 1 of Article 49 of the General Terms of Contracts of this case, it shall be decided by the court's decision, and that the selective arbitration clause of this case shall be effective only when one party selects the other party of the contract of this case, not the conciliation, requests the settlement of disputes according to the procedure, and the other party participates in the arbitration without any particular objection (see Supreme Court Decision 2004Da42166, Nov. 11, 2004). Meanwhile, Article 17 (2) of the Arbitration Act provides that "any objection to the arbitral tribunal's authority shall be raised until the date of submission of a reply to the merits", and therefore, Article 49 (2) of the Arbitration Act provides that the arbitral tribunal's authority shall be directly related to the existence or validity of the arbitration agreement, and thus, it shall not be effective in this case's.

The judgment of the court below to the same purport is just, and contrary to the allegations in the grounds of appeal, there are no errors in the misapprehension of facts against the rules of evidence affecting the judgment, or in the misapprehension of legal principles concerning

In addition, it is reasonable to view that the Plaintiff actively denied the Defendants’ claim on the merits of the arbitration application case as an expression of intent not to dispute the existence of the arbitration agreement, rather than an objection to the arbitration agreement. Therefore, the grounds for appeal pointing this out cannot be accepted.

2. As to the plaintiff's claim in this case, the court below has already reached an agreement on the items alleged by the plaintiff among the contents of the arbitral award in this case, and thus, the arbitral award is not subject to arbitration agreement, or must be cancelled because it dealt with matters beyond the scope of arbitration agreement. In the case of the plaintiff's claim in this case, one of the parties asserts that the dispute is not subject to arbitration agreement, and the other party asserts that there is no agreement on the dispute, and that there is no agreement on the dispute, it is still a dispute between the parties. Thus, it is reasonable to view that this is a dispute arising between the parties during the execution of the "contract" as stipulated in Article 49 of the General Conditions, and further, the plaintiff's claim in this case is rejected on the ground that the plaintiff's claim in this case is not sufficient to recognize the plaintiff's above facts in light of the records, and there is no violation of law of misunderstanding the legal principles as to the validity of the disposition documents due to the violation of the rules of evidence, etc. affected the conclusion of the judgment, as alleged in the grounds for appeal.

3. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition.

Justices Lee Yong-woo (Presiding Justice)