Contributed By Yulchon LLC
The Republic of Korea (Korea) ratified the New York Convention in 1973. However, before the late 1990s, there was very little arbitration activity in Korea due to its non-litigious culture and relatively insulated economy.
The Asian financial crisis in 1998 was a watershed moment for international arbitration in Korea. As foreign investors flooded the market and bought Korean companies in fire sales, arbitration clauses were introduced in M&A transactions. With the increase in these types of transactions, international arbitration became a well-known mechanism for dispute resolution for Korean practitioners and members of the business community.
With the sudden and rapid growth of arbitration activity, institutional support and the legal infrastructure for international arbitration also began to grow in parallel. The Arbitration Act of Korea (the Korean Arbitration Act, or the Act), which was first enacted in 1966, was completely revised in 1999 to adopt the 1985 United Nations Commission on International Trade Law Model Law (the UNCITRAL Model Law).
In 2016, further amendments to the Korean Arbitration Act were made, incorporating the 2006 amendments to UNCITRAL Model Law into domestic law. In the same year, the Korean Commercial Arbitration Board (KCAB) adopted significant revisions to both its International Arbitration Rules and Domestic Arbitration Rules (collectively, the KCAB Arbitration Rules). In 2017, the Arbitration Industry Promotion Act came into effect, providing for long-term planning and government financial support for the promotion of international arbitration in Korea.
In line with these legislative initiatives to foster an arbitration-friendly environment, Korean courts have also become increasingly supportive of arbitration by upholding arbitration agreements and enforcing arbitral awards.
Today, arbitration is not merely an alternative to traditional court litigation, but a primary dispute-resolution mechanism for cross-border disputes in Korea.
Since the amendments to the Korean Arbitration Act and the KCAB Arbitration Rules came into effect in 2016, Korea has seen substantial development in various legal issues related to arbitration.
In recent years, interim relief in arbitral proceedings has become an issue of great interest in Korean arbitration due to the KCAB’s adoption of the emergency arbitrator system, as well as the 2016 amendments to the Korean Arbitration Act, which permit Korean courts to enforce interim measures ordered by an arbitral tribunal seated in Korea.
In addition, with the growth in acceptance and use of third-party funding in international arbitration around the globe, many third-party funders have also begun to express their interest in entering the Korean market. While third-party funding remains an issue of increased interest in Korea, no legislation has been introduced so far in order to directly address this issue.
There have also been a number of court cases dealing with arbitration jurisprudence in recent years. Three notable cases are summarised below.
Firstly, in an enforcement proceeding for a foreign arbitral award, the Supreme Court held that an arbitral award ordering the respondent to pay a daily monetary penalty for failure to assign the patent in dispute to the prevailing party was not against Korean law or public policy. This case has set an important precedent as the first Supreme Court decision to allow the enforcement of a foreign award ordering indirect compulsory execution in relation to the respondent’s obligation to declare its intent to effect certain changes in a legal relationship, which is not a type of relief normally enforceable under the Civil Execution Act (Supreme Court Decision No 2016Da18753, rendered on 29 November 2018);
Secondly, in a case where the validity of an arbitration agreement was in dispute, the Supreme Court held that the validity of an arbitration agreement shall be determined by the substantive governing law of the underlying contract if the parties have designated one, or by the law of the seat of arbitration if the parties have not designated the governing law in the contract, pursuant to Article 5(1) of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (Supreme Court Decision No 2017Da255084, rendered on 26 July 2018);
Thirdly, another Supreme Court case involved a foreign arbitral award ordering the respondent to pay the claimant an amount equal to 50% of the claimant’s total costs incurred upon the sale of land. This amount included half of the total corporate tax borne by the claimant, which accounted for one-third of the awarded amount. However, as a result of the claimant’s subsequent lawsuit against the pertinent tax authorities, the amount of corporate tax was ultimately significantly reduced, thereby also reducing the respondent’s share of the amount.
In an ensuing enforcement proceeding, the Supreme Court acknowledged the need to recalculate the amount that can be enforced against a respondent, which should properly reflect the reduction in corporate tax to be borne by the respondent, if, considering the substantive legal relationship of the parties, developments leading up to the rendering and enforcement of an arbitral award, and the impact on a party upon permission of enforcement, the enforcement would result in abuse of rights or transgression of public order (Supreme Court Decision No 2016Da49931, rendered on 13 December 2018)
Seoul Protocol on Video Conferencing in International Arbitration
Since the COVID-19 pandemic, which arose during the first half of 2020, the international arbitration community in Korea has demonstrated quick adaptability to the uncertainty surrounding arbitral proceedings. Within mere months of the COVID-19 outbreak, on 18 March 2020, KCAB published the Seoul Protocol on Video Conferencing in International Arbitration, a comprehensive guideline instructing parties on navigating tricky issues which may arise during virtual hearings.
The Protocol addresses matters including a witness’s accessibility to documents during examination and securing efficient interpretation services. This Protocol may serve as a useful tool for parties to cut down arbitration costs – even after COVID-19.
In 2019-20, international arbitration activity in Korea has increased throughout various industries, including project finance, construction, shipbuilding and IT.
Investment treaty arbitrations have shown particularly rapid growth in 2019. Some of these cases have received wide public attention, such as the four cases described below.
On 20 June 2019, Gale Investments Co, a US real estate development company that has initiated an ICC arbitration against POSCO Engineering & Construction over the Songdo International City development project in Incheon, submitted a notice of intent to submit a claim to arbitration to the Korean government based on the Korea-US FTA, claiming that the state had unlawfully expropriated a substantial portion of Gale’s investment in the project.
On 10 July 2019, a Malaysian corporation, Berjaya, submitted a notice of intent to bring an expropriation claim against South Korea under the Malaysia-Korea BIT. The dispute relates to Berjaya’s real estate development project, which allegedly failed due to a Korean Supreme Court’s ruling that directed the return of land purchased by Berjaya from a Korean government agency. Berjaya seeks damages for the alleged breach of land sale and purchase agreement and has filed the notice of intent after losing its lawsuit against the government in Seoul Central District Court.
On 28 October 2019, KTurbo, a Korean manufacturer specialising in environmentally friendly turbo compressors, blowers and generators, filed a notice of intent to file a claim against the USA under the US-KOR Free Trade Agreement. KTurbo claims that the US government wrongfully indicted him and misappropriated assets of its US subsidiary company when it indicted KTurbo for wire fraud allegations and forfeited KTurbo’s assets. As a result, KTurbo seeks damages for the forfeited assets.
On 22 December 2019, respondent South Korea’s preliminary objections filed against Claimant Mason Capital LP, a US hedge fund, were rejected by the PCA tribunal. Filed on 13 September 2018 under the US-KOR FTA, Mason Capital LP’s investment arbitration claim arises from its allegations that the Korean government improperly intervened in the merger of C&T and Cheil Industries, to which it holds a 35% share.
The KCAB is the only officially recognised arbitral institution in South Korea and is often selected by parties in arbitrations seated in Korea. It is statutorily empowered to settle any kind of commercial dispute under the Korean Arbitration Act. It also conducts and administers mediation.
The KCAB has adopted separate rules applicable to domestic and international arbitrations. Arbitrations between Korean parties are conducted pursuant to the Domestic Arbitration Rules of the KCAB, in the absence of a specific agreement to the contrary. For international arbitrations in which at least one of the parties has its principal place of business outside Korea, the International Arbitration Rules of the KCAB apply as the default rules. In April 2018, the KCAB established a separate division, KCAB International, which exclusively manages international arbitration.
Parties choosing Korea as an arbitral seat also sometimes choose to arbitrate under the rules of other leading international arbitral institutions, such as the International Chamber of Commerce (ICC), while the Singapore International Arbitration Centre (SIAC), the Hong Kong International Arbitration Centre (HKIAC) and the London Court of International Arbitration (LCIA) are more frequently used for arbitrations seated outside Korea.
While less common, there are also ad hoc arbitrations under the United Nations Commission on International Trade Law (UNCITRAL) arbitration rules.
The primary legislation governing international arbitrations in Korea is the Korean Arbitration Act, which is based on the UNCITRAL Model Law. The Act governs both domestic and international arbitrations that take place in Korea.
The latest major revisions to the Korean Arbitration Act came into effect on 30 November 2016, when many provisions of the 2006 amendments to the 1985 UNCITRAL Model Law were adopted. The primary changes to the Korean Arbitration Act in 2016 include:
However, the Korean Arbitration Act, as amended in 2016, and UNCITRAL Model Law are not completely identical. For instance, the Act does not incorporate Article 34(4) of the UNCITRAL Model Law, which allows a court to suspend its set-aside proceedings at the request of a party in order to give the arbitral tribunal an opportunity to resume arbitration or to eliminate grounds for set-aside grounds.
Further, Article 17 of the Act also deviates from the UNCITRAL Model Law by providing that, where an arbitral tribunal rules on its jurisdiction or scope of authority as a preliminary matter, either party may appeal the decision not just acknowledging the jurisdiction but denying its jurisdiction to the Korean district court within 30 days.
The Korean Arbitration Act was amended in 2016.
Korea’s Act on Private International Law is facing comprehensive revisions for the first time in 17 years, after it was completely amended in 2001. Among other notable changes, the revised Bill includes new provisions on the general and special jurisdiction of Korean courts and the jurisdiction clause in a contract. The Bill was submitted to the National Assembly after it was approved by the State Council in November 2018, and is now pending examination by the Legislation and Judiciary Committee.
Article 8 of the Korean Arbitration Act, in line with Article 7 of the UNCITRAL Model Law, requires that an arbitration agreement be in writing, either as an arbitration clause in a contract or as a separate agreement. An arbitration agreement shall be deemed to be "in writing" when:
As in most other jurisdictions, matters of criminal law, family law and administrative law are not arbitrable in Korea.
To date, there is no clear Korean court precedent on whether claims related to economic regulatory laws, such as antitrust and insolvency regulations, or intellectual property rights, are arbitrable. Legal commentators, however, have noted the trend in international arbitration favouring the arbitrability of disputes in such areas, and at least one Korean court has enforced a foreign arbitral award (in 1995) based on a licensing agreement which allegedly violated Korean fair trade laws.
Korean Arbitration Act does not provide specific rules for determining the arbitrability of claims. However, the 2016 amendments to the Act extended the definition of “arbitration” to mean a procedure to settle a dispute over “non-property rights” (non-monetary) which can be resolved by settlement of the parties as well as “property rights” (monetary). Based on this revision, commentators are of the opinion that certain disputes arising out of public law may be arbitrated in Korea as long as the nature of the dispute allows the parties to settle. The Act on Private International Law, which provides for certain jurisdictional protections in the case of international consumer and employment disputes, is silent on whether such disputes can be referred to arbitration or not.
Korean courts generally respect the parties’ agreement to arbitrate. Pursuant to Article 9 of the Korean Arbitration Act, if one party brings an action in court against another party, when they are bound by an arbitration agreement, and the other party moves to compel arbitration, the court is required to dismiss the action, unless it finds the arbitration agreement to be null and void, inoperative or incapable of being performed.
Korean courts tend to interpret arbitration agreements broadly with its friendly position toward arbitration. However, what is commonly referred to as an "optional" arbitration clause, which merely gives parties an option to pursue arbitration in lieu of court litigation, will not be deemed as a valid agreement to arbitrate.
Article 17(1) of the Korean Arbitration Act provides that, when an arbitral tribunal is ruling on its own jurisdiction, the tribunal is required to treat the arbitration clause as separate and independent of the main contract, to which the arbitration clause is included. Thus, the Act adopts the "Rule of Separability" by allowing the tribunal to have the jurisdiction over the dispute whether the main contract in which the arbitration clause on contained is invalid or non-existent, without affecting the validity of the arbitration agreement.
The Korean Arbitration Act places no restrictions on who may serve as an arbitrator. Parties are free to agree on the specific qualifications of the arbitrators and the procedure for appointing them. While the KCAB maintains a roster of domestic and international arbitrators for the purpose of facilitating arbitrations, the parties are free to appoint other arbitrators who are not listed in the roster.
Parties may agree on any procedure for selecting arbitrators. However, when the method fails, or in the absence of such an agreement, the Korean Arbitration Act applies to arbitrations seated in Korea.
In the absence of parties’ agreement, articles 11 and 12(3) of the Act provide default mechanisms. For instance, Article 11 provides that, where the parties fail to determine the number of arbitrators, the number shall be three. Article 12(3) provides that, where the parties fail to agree on the procedure for appointing arbitrators, the arbitrators shall be appointed as follows.
Article 12(4) of the Act applies where the parties have agreed on the procedure for selecting arbitrators but the method fails. A court’s decision on the appointment of an arbitrator is not subject to appeal.
Recently, the international arbitration community in Korea has witnessed increased interest in multi-party arbitrations. To date, the Act does not provide default mechanisms for selecting arbitrators in multi-party arbitrations. However, 2016 amendments to KCAB’s International Arbitration Rules include such default procedures for multi-party arbitrations under Rule 12(3).
As a general rule, the selection of arbitrators is a matter for the parties to decide. However, if the parties are unable to agree on the method of selection and there is no applicable set of institutional arbitration rules, then the Korean Arbitration Act applies to allow the courts to intervene.
A court may intervene at the request of a party in the following matters relating to the selection of arbitrators:
Article 13 of the Korean Arbitration Act provides that an arbitrator may be challenged if there are circumstances that are likely to give rise to justifiable doubts as to the arbitrator’s impartiality or independence, or if the arbitrator does not possess qualifications agreed by the parties. Under Article 14 of the Act, the parties are free to agree on a procedure for challenging an arbitrator. Failing such an agreement, the party challenging an arbitrator shall send a written statement of the grounds for challenge to the arbitral tribunal within 15 days of becoming aware of:
If the challenged arbitrator does not withdraw, or the other party does not agree to the challenge, the arbitral tribunal shall decide on the challenge. If the arbitral tribunal does not uphold the challenge, the challenging party may file an objection with the competent court within 30 days of receipt of the tribunal’s decision pursuant to Article 14(3) of the Act. The court’s decision on the challenge is not subject to appeal.
Concerning the deadline for challenging arbitrators, the Korean Supreme Court has held that even if circumstances existed during the arbitration proceeding that would likely have given rise to justifiable doubts as to an arbitrator’s impartiality or independence, which are not as severe as grounds for challenging judges under the Korean Civil Procedure Act, such circumstances do not constitute grounds for setting aside an arbitral award if they were not timely raised as a challenge (Supreme Court Decision No 2005Da47901, rendered on 29 April 2005). Therefore, any challenge against an arbitrator must be raised within the period set forth in Article 14 of the Act.
Article 14 of the KCAB International Arbitration Rules also sets forth similar grounds for the challenge of arbitrators, and Article 15 of the Rule deals with the replacement and removal of arbitrators.
The Korean Arbitration Act requires potential arbitrators to disclose all circumstances likely to give rise to justifiable doubts as to their impartiality or independence. The Korean Supreme Court has ruled that the disclosure requirement is a mandatory provision, meaning that it cannot be waived by the parties. The Act also includes a mandatory provision (Article 19) that parties must receive equal treatment during arbitral proceedings, the failure of which can result in a set-aside of the final award under Article 36 of the Act.
Similarly, the KCAB International Arbitration Rules provide that all arbitrators must be, and remain at all times, impartial and independent. In case of failure to be impartial and independent, arbitrators can be challenged, or precluded from serving on a case, for lack of independence or lack of impartiality. The KCAB has also issued a Code of Ethics for Arbitrators, which must be accepted by all arbitrators appointed to hear arbitration administered by the KCAB.
The Korean Arbitration Act does not address subject-matter arbitrability. However, Article 3(1) of the Act sheds some light on the scope of arbitration by defining the term "arbitration" as a procedure to resolve property/monetary or non-property/non-monetary disputes, which can be settled between parties. Therefore, as in most other jurisdictions, it is generally viewed that matters that are not capable of being settled by agreement between the parties, such as matters of criminal law, family law and administrative law, are non-arbitrable.
On the other hand, the arbitrability of matters relating to intellectual property, insolvency, and antitrust remains unclear under Korean law. For instance, while intellectual property licensing disputes are generally considered arbitrable, there are conflicting views on whether validity claims of registered intellectual property rights, such as patents, can be referred to arbitration.
The principle of competence-competence is recognised under Article 17(1) of the Korean Arbitration Act, under which an arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement.
Pursuant to Article 17(1), the challenging party must raise its jurisdictional objections to the tribunal no later than its submission of the statement of defence on the merits, unless the party’s jurisdictional objection is that the tribunal is exceeding the scope of its authority, in which case the objection must be raised as soon as it occurs. The tribunal may rule on the jurisdictional challenge either as a preliminary matter or as a final award on the merits.
However, Article 17(6) of the Act authorises the Korean courts to make a final determination as to a tribunal’s jurisdiction when an arbitral tribunal rules on its jurisdiction as a preliminary matter, regardless of whether the tribunal accepts or declines jurisdiction, by allowing a party to appeal a tribunal’s decision on its own jurisdiction within 30 days after having received the notice of such decision. The 2016 amendments of the Act now allow the court to review the arbitral tribunal’s decision even denying its own jurisdiction.
While the tribunal may rule on its own jurisdiction, Article 17(6) of the Korean Arbitration Act bestows the final decision-making authority onto the courts, by allowing a party to appeal a tribunal’s jurisdictional ruling. Prior to 2016 amendments to the Act, only affirmative decisions (ie, a tribunal’s decision that jurisdiction exists) were appealable. However, Article 17(6) has been amended to allow parties to challenge not only affirmative jurisdictional decisions but also a tribunal’s negative decision (ie, refusal to find jurisdiction).The provision, however, is not often invoked in practice, and courts are generally reluctant to intervene and overturn the decision of the arbitral tribunal on its jurisdiction.
Article 36(2) of the Act allows the courts to set-aside a final award on the merits upon its de novo finding that the arbitration agreement is invalid or does not exist.
Pursuant to Article 17(2) of the Korean Arbitration Act, a challenge to the jurisdiction of the arbitral tribunal must be raised to the tribunal by no later than the submission of the statement of defence on the merits. A party disputing the jurisdiction of the arbitral tribunals can raise such objection even after the party has participated in the process of constituting the arbitral tribunal.
An appeal against the tribunal’s jurisdictional ruling before the national court under Article 17(6) of the Act must be filed within 30 days after having received the notice of such ruling of the arbitral tribunal.
The standard for a court’s review of an arbitral tribunal’s jurisdiction is de novo. Therefore, the court will not be bound by the tribunal’s decision on its own jurisdiction.
Whether a claim is arbitrable, or whether the claim is within the scope of the arbitration agreement between parties, will be also reviewed de novo by the court in the case of any challenge to the arbitral award or award enforcement proceedings.
Questions about the nature of the claim and its admissibility in the arbitration (other than questions about arbitrability or scope) or questions about the admissibility of evidence are related to the merits of the case, and the Korean court will not revisit.
When a party commences court proceedings in breach of an arbitration agreement, the defendant may raise a defence on the existence of arbitration agreement and request the court to dismiss the lawsuit pursuant to Article 9(1) of the Korean Arbitration Act – no later than its first submission on the merits to the court.
Under Article 9(1), a court is required to dismiss the legal action brought in violation of the arbitration agreement, unless the court finds the arbitration agreement to be null and void, inoperable or incapable of being performed.
The Korean Arbitration Act does not address whether a tribunal may exercise jurisdiction over a third-party that is a non-signatory to the arbitration agreement.
Further, there is no clear precedent as to whether "group of companies" or "corporate veil-piercing" can be used to exercise jurisdiction over non-signatories to the arbitration agreement.
However, a third party may be bound to an arbitration agreement as a successor, heir or assignee to the contracting party. There is at least one lower court decision, in which the court held that the assignee of receivables under a contract, containing an arbitration clause, is entitled to raise the existence of an arbitration agreement as a defence to a civil action in accordance with Article 9(1) of the Korean Arbitration Act (Seoul Western District Court Judgment 2001GaHap6107, rendered on 5 July 2002).
Furthermore, third parties may definitively be bound to an arbitration agreement by their subsequent consent – whether by affirmative consent in writing at the request of a party or by failure to object to the jurisdiction of the arbitral tribunal. These rules apply equally to foreign third parties.
The Korean Arbitration Act allows the tribunal to award preliminary or interim relief, as considered necessary, at the request of either party.
The 2016 amendments to the Act incorporated more detailed provisions on the types of interim relief that can be awarded by an arbitral tribunal. Article 18(2) of the Act provides that a tribunal may take an interim measure to order either party to perform any of the following actions:
An interim measure issued by an arbitral tribunal is binding upon the parties and can be enforced upon application to the competent court if the arbitration is seated in Korea.
Korean courts play two major roles in interim relief procedures in arbitration: (i) granting interim measures, and (ii) enforcing the interim measures issued by the tribunal.
Firstly, in accordance with Article 10 of the Korean Arbitration Act, courts are permitted to issue interim measures, upon a party’s request made before or during the arbitral proceedings. While Article 10 is silent on the type of interim measures that courts may grant, interim measures issued by the courts have commonly included preliminary injunctions and orders to provisionally attach respondent’s assets. A court may issue interim measures – regardless of whether the arbitration seated in Korea or another jurisdiction.
Secondly, in accordance with Article 18-7 of the Act, courts may, upon parties’ request, assist with the recognition and/or enforcement (ie, compulsory execution) of interim awards issued by the tribunal.
Pursuant to Article 2 of the Act, Korean courts may issue an interim measure under Article 10 regardless of the place of arbitration, or even when the place of arbitration is yet to be decided. However, Korean courts may enforce the interim relief issued by the arbitral tribunal under Article 18-7 of the Act only if the arbitration is seated in Korea.
As previously explained, the 2016 amendments to the Act incorporated more detailed provisions on the types of interim relief that can be awarded by an arbitral tribunal. More information can be found in 6.1 Types of Relief.
Recently, "emergency arbitrator" has gained much attention as for an expedited procedure for parties to obtain interim measures. To date, the Korean Arbitration Act is silent on emergency arbitrator. However, 2016 revisions to the KCAB International Arbitration Rules (“Rules”) introduced proceedings for an emergency arbitrator in Appendix 3 to the Rules, under which a party may seek interim measures through an emergency arbitrator.
The appeal arises from the fact that, once appointed, emergency arbitrators must make a decision with 15 days from its appointment
The types of relief that can be granted by an emergency arbitrator are the same as the types of relief that an arbitral tribunal may grant under Article 18 of the Korean Arbitration Act. The parties are bound by the decision of the emergency arbitrator until the main arbitral tribunal, once constituted, modifies, suspends, or terminates such decision. The decision of the emergency arbitrator is not binding on the arbitral tribunal.
Courts and arbitral tribunals both have the authority to order security for costs – when hearing parties’ requests to obtain, recognise or enforce interim measures under the Korean Arbitration Act.
Under Article 18-4 of the Act, an arbitral tribunal may order the party requesting for interim measures to provide security. Similarly, under Article 18-7(3) of the Act, Korean courts are empowered to order security against the party requesting for recognition or enforcement of interim measures issued by the tribunal, if the court finds it necessary, when the arbitral tribunal has not ordered to provide security or when there is a risk of infringing the right of a third party.
Generally, parties are free to choose their own procedural rules – whether it is by agreement or by the rules of the chosen arbitral institution.
Where parties fail to agree on certain procedural terms (eg, place of arbitration, language to govern arbitration), arbitral tribunals have wide discretion to determine how the arbitration should proceed under Article 20(2) of the Korean Arbitration Act.
In tandem with parties’ agreement and arbitrators’ discretion, the Korean Arbitration Act also provides applicable procedural rules. For example, the Act provides certain default procedural rules, such as formality requirements for arbitration agreements under Article 8 of the Act. Further, the Act authorises courts to help facilitate arbitration (eg, taking evidence or enforcement of arbitration agreements). Lastly, the Act also places mandatory procedural rules to ensure that arbitrations conducted in Korea comport with notions of fair due process, such as its requirement that all parties receive equal treatment in the proceedings under Article 19 of the Act.
In line with the principle that arbitration is a creature of "consent", procedural steps are generally identified by the agreement of the parties or rules of the applicable arbitral institution.
In the absence of such agreement, the Korean Arbitration Act provides for a general arbitration process for an arbitration seated in Korea as below.
The Korean Arbitration Act grants powers to an arbitral tribunal to decide on matters of its jurisdiction, order interim relief, determine the admissibility and weight of the evidence, and issue awards on the dispute referred to arbitration.
Under the Act, arbitrators are required to provide equal treatment to the parties during the proceedings and the parties must be allowed sufficient opportunity to argue their case. Arbitrators are also required to disclose any circumstances which may raise doubts as to their fairness or independence.
The Korean Arbitration Act does not prescribe particular qualifications or other requirements for legal representatives appearing in arbitrations seated in Korea. Legal representatives appearing in arbitration seated in Korea are not required to be members of the Korean Bar.
In principle, the agreement between the parties shall prevail over default provisions and be recognised as the dominant rules of the case. Parties are free to agree on the specific procedures for the submission and collection of evidence, and the Korean Arbitration Act operates as a default rule where there is no agreement between the parties.
The Act does not provide specific procedures for the collection and submission of evidence at the pleading or hearing stage. It does, however, provide that:
Parties are free to agree on the scope and procedure for “discovery” during the arbitral proceedings. It is common practice in international arbitrations seated in Korea or involving Korean parties to include some form of document production as part of the arbitral proceedings. In such cases, the scope of production would be much broader than the scope allowed in Korean litigations. The IBA Rules on the Taking of Evidence in International Commercial Arbitration, while not binding, are generally taken into account in international arbitrations seated in Korea.
It is also common for parties to arbitrations in Korea to submit witness statements as part of the pleading stage. Parties may also appoint their own experts and submit expert reports, if necessary, and submit expert reports during the pleading stage. These witnesses and experts may be cross-examined at the hearing.
With regard to the experts, Article 27 of the Act allows the arbitral tribunal to appoint one or more experts for consultation on specific issues, unless otherwise agreed by the parties. In such cases, the arbitral tribunal may require a party to provide the expert with any relevant information or to produce, or provide access to, any relevant documents, goods or other articles for inspection. A challenge to the expert appointed by the tribunal can be made on the same grounds and through the same process as a challenge to the appointment of an arbitrator.
Korea does not have specific rules of evidence that apply to arbitrations for either domestic or international arbitrations. Rules of evidence in arbitration are generally determined in accordance with the rules under which the arbitration is being conducted, and at the discretion of the arbitral tribunal. While not automatically binding, the IBA Rules on the Taking of Evidence in International Commercial Arbitration are commonly adopted in international arbitrations seated in Korea.
Article 28 of the Korean Arbitration Act, which was revised in 2016, provides that a tribunal may, either on its own initiative or at the request of a party, request a court to examine evidence or to co-operate in examining evidence.
When a tribunal requests a court to examine evidence directly, the arbitrators or the parties involved may attend the examination of evidence with the permission of the presiding judge. When a court is requested to co-operate in the examination of evidence, the court may order witnesses, holders of documents, and others, including non-parties to the arbitration, to make an appearance before the arbitral tribunal or may order them to submit the necessary documents to the arbitral tribunal.
The Korean Arbitration Act does not contain any provisions relating to the confidentiality of arbitral proceedings. In addition, there is no Korean Supreme Court precedent addressing this issue. Thus, there is no automatic requirement of confidentiality in arbitrations seated in Korea unless the parties agree otherwise – for instance, by entering into a separate confidentiality agreement or by adopting institutional rules that require confidentiality of arbitral proceedings. Despite the absence of a specific provision in the Act, arbitration proceedings in Korea have generally been treated in strict confidence.
Article 57 of the KCAB International Arbitration Rules provides that the arbitral procedure and records are confidential and that the tribunal, the Secretariat, the parties and their representatives and assistants are prohibited from disclosing facts related to the arbitration or facts learned through the arbitration, except where disclosure is consented to by the parties, required by law, or required in court proceedings.
Article 32 of the Korean Arbitration Act provides that the award shall be made in writing and signed by all the arbitrators. Where a minority of the tribunal has any reason not to sign the award, the award shall be effective with the signature of the majority of the arbitrators, with the reason for the failure or refusal to sign stated in the award. The award shall state the reasons upon which it is based, unless the parties have agreed otherwise or the award is an award on agreed terms of a settlement between the parties under Article 31. The award shall also state its date and place of arbitration. The Act, however, does not specify any time limit for delivering the award.
For KCAB arbitrations, Article 38 of the KCAB International Arbitration Rules provide a time limit for a final award (ie, within 45 days from the date on which the final submissions are made or the hearings are closed, whichever is later), which may be extended.
The Korean Arbitration Act does not place any restrictions upon an arbitral tribunal in terms of the types of remedies that may be granted. In practice, however, the tribunal needs to take into consideration the enforceability of its award in Korea, as it may be challenged if the award is in violation of the public policy of Korea.
For instance, Korean courts do not allow punitive damages as a matter of public policy, unless expressly allowed under applicable laws such as the Korean Product Liability Act. Therefore, the tribunal’s award allowing for punitive damages for contract breaches or tort would not be enforced in Korean courts.
In addition, if the award is to be enforced in Korea, the parties and the tribunal should be careful to specify the relief in sufficient detail to allow enforcement under Korean enforcement laws (e.g. specify the exact asset to be transferred, specify the monetary amount to be paid, specify the actual action a party must perform, etc.). In one case, the Seoul High Court found that, although an award was enforceable, the decision of the arbitral tribunal was not specific enough to be executed by the execution officer.
With respect to interest, the claimant generally seeks interest on the principal claims and related costs from the respondent, and the arbitral tribunal must decide on such claims. Pursuant to Article 34-3 of the Korean Arbitration Act, unless the parties have agreed otherwise, the tribunal may order either party to pay delayed interest, if it finds it appropriate in making an arbitral award, considering all the circumstances of the relevant arbitration case.
As for the legal costs, under Article 34-2 of the Act, unless the parties have agreed otherwise, an arbitral tribunal has explicit authority to allocate arbitration costs between parties, taking into consideration all circumstances of the case. The "loser pays" rule generally applies to arbitrations in Korea, but the tribunal has discretion to decide otherwise in light of relevant factors.
A final award has the same effect on the parties as a “final and conclusive judgment of the court” under Article 35 of the Act, unless the court refuses to recognise or enforce the award under either Article 38 (awards made in Korea) or Article 39 (awards made in foreign jurisdictions). This means that parties may not “appeal” an award per se; however, parties may file a lawsuit to set aside the award under Article 36 of the Act.
In order to set aside the award, parties must file a lawsuit with the court, within three months after its receipt of the duly authenticated copy of the award, and state the grounds upon which the party seeks to set aside the award. Grounds for setting aside an award are limited to the ones specified under Article 36 and Korean courts tend to interpret such grounds narrowly:
The court may also set aside the award if it finds, on its own initiative, that the subject matter of the dispute is not arbitrable under Korean law, or that the award is in conflict with the public policy of Korea.
An application to set aside an arbitral award is filed at a district court. Thereafter, an appeal of the district court’s judgment may be pursued at the applicable appellate court, followed by the Supreme Court. Generally, however, an enforcement order issued by the district court will be provisionally enforceable during the pendency of any appeals.
The grounds for setting aside an arbitral award are limited to the grounds provided in the Korean Arbitration Act. To date, no precedent exists as to whether the parties may agree to expand or limit such a scope.
The merits of the final award are not reviewable by the courts since they cannot review tribunals’ findings of law and facts. As errors of law or of fact generally do not qualify as grounds for setting aside an arbitral award.
Korea signed the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention) on 8 February 1973, which came into effect on 9 May 1973.
Korea is also a signatory to the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) on 21 February 1967, which came into effect on 23 March 1967.
Under Article 37 of the Korean Arbitration Act, an arbitral award may be enforced only by a court's decision to enforce it upon the request of the parties. The party applying for recognition or enforcement of an arbitral award must submit the authentic award or a copy of the award. A Korean translation must be provided if the award is written in a foreign language.
Once the application for recognition or enforcement of an award is made to the court, the court will set a hearing date for both parties to present their case. The court’s decision as to the recognition or enforcement of an award must contain the reasons for the decision.
The 2016 amendments to the Act allowed enforcement based on a "decision" of the district court rather than a "judgment", which is understood as an effort to expedite enforcement proceedings.
Under Article 37(1) of the Act, courts mustrecognise an arbitral award – unless grounds of refusal under Article 38 or Article 39 exist.
Article 38 of the Act provides that an arbitral award made in Korea must be recognised and enforced, unless a party proves that
The court can also refuse to recognise and enforce the arbitral award made in Korea if the dispute which has been the subject of the award is a dispute not arbitrable under Korean law, or the recognition or enforcement of the award is in violation of public policy.
Article 39 of the Act provides that arbitral awards made outside Korea where the New York Convention applies shall be recognised or enforced according to the requirements under the New York Convention (Article 39(1)), and arbitral awards made outside Korea where the New York Convention does not apply, shall be recognised or enforced in accordance with the criteria set forth in the applicable Korean law, such as the Civil Procedure Act and the Civil Execution Act (Article 39(2)).
Finally, as state immunity is not a ground for resisting enforcement of arbitral awards under the New York Convention or under Korean law, a state or state entity is unlikely to successfully raise a defence of sovereign immunity to prevent the enforcement of an arbitral award in Korea.
Korean courts will generally recognise and enforce arbitral awards unless there are clear grounds for setting aside the award under the Korean Arbitration Act. The courts tend to interpret the grounds for setting aside very narrowly and are generally reluctant to refuse enforcement of foreign arbitral awards based on public policy grounds.
The Korean Arbitration Act is silent on the issue of whether class-action arbitration is permitted. There is also no precedent from the Korean courts on this issue.
Under the Korean Arbitration Act, there are no mandatory ethical codes or professional standards applicable to either counsels or arbitrators. The Act does, however, require arbitrators conducting proceedings in Korea to disclose, in advance, if there are any circumstances likely to give rise to justifiable doubt as to their impartiality or independence. Arbitrators are subject to challenge if any such circumstances exist.
The KCAB has also issued a Code of Ethics for Arbitrators, which must be accepted by all arbitrators appointed to hear arbitration administered by the KCAB.
There is currently no express rule or restriction on third-party funders in Korea, nor is there a law that specifically allows for it. Despite the growing interest in third-party funding in Korea, there are also no notable precedents on this issue. However, financial regulations may be applicable to third-party funders conducting business in Korea.
The Korean Arbitration Act does not expressly preclude or permit the consolidation of separate arbitral proceedings.
However, Article 23 of the KCAB International Arbitration Rules provides for "consolidation of claims", under which an arbitral tribunal may, at a party’s request, consolidate claims brought in separate, but pending, arbitrations if such arbitrations are all:
Article 22 of KCAB Rules also allow "single arbitration under multiple contracts", under which claims arising under multiple contracts may proceed under one single arbitration. Under Article 22, claims arising under multiple contracts will be conducted in one single arbitration if all multiple contracts – to the satisfaction of the Secretariat – provide for KCAB Rules, contain arbitration agreements that are compatible with one another and the claims arise out of the same transaction or series of transactions.
The Act is silent on the issue of whether an arbitral tribunal may assume jurisdiction over a non-signatory to the arbitration agreement, regardless of the non-signatory’s nationality. To date, there is no clear instruction from the courts on the type of doctrines a court may adopt in exercising jurisdiction over third parties. More information on this topic may be found in 5.7 Third Parties.
Recently, addressing a similar issue involving third parties, there have been discussions on whether the arbitral award may be enforced against non-signatories to the arbitration agreement. However, Korean courts have yet to rule on this issue.