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KCI 등재
증권분쟁의 소송대체적 해결방안
Alternative Dispute Resolution Mechanism in the Securities Market
이윤석 ( Yun Seok Lee )
금융법연구 10권 2호 65-91(27pages)
UCI I410-ECN-0102-2014-300-001691056

The United States Supreme Court`s decisions established the enforceability of pre-dispute arbitration agreements in customer securities contracts. Because of the Supreme Court`s decisions most brokerage firms routinely require the customers to sign agreements diverting any customer claims to arbitration. Although courts currently hold that pre-dispute arbitration agreements in customer securities contracts are enforceable pursuant to of the Federal Arbitration Act, congressional legislation has articulated concerns with such agreements. This legislation includes the Arbitration Fairness Act of 2009 and the Dodd-Frank Wall Street Reform and Consumer Protection Act. The debate over pre-dispute arbitration agreements in the securities customer context centers around a variety of issues, including (1) the freedom of contract, (2) the SEC`s regulatory oversight of FINRA, (3) the transparency of the FINRA arbitration process, and (4) the FINRA Customer Code`s protection of customer due process rights. The mediation has been used and studied much more than the arbitration as the ADR of securities disputes in Korea. However, the mediation has problems such as the effectiveness of relevant mediation, how to separate a supervisory organ from the disputes mediation organization and multiplication of the disputes mediation organization. This Note explores activating the arbitration in securities disputes in Korea. To activate the arbitration, (1) we should make a self-regulatory organization governing the securities industry, (2) the customer should be given the unilateral right to demand arbitration, giving a customer who did not sign a pre-dispute arbitration agreement, (3) Arbitrator candidates should be ineligible to be arbitrators if they possess certain affiliations with the financial services industry, (4) the arbitration should be procedurally fair to customers.

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