Arbitration in South Korea

The Republic of Korea (“South Korea” or “Korea”) ratified the New York Convention in 1973. Until the late 1990s, however, there was very little arbitration activity in South Korea owing to its efficient court system, non-litigious culture, and relatively insulated economy. 

The Asian financial crisis in 1998 was a watershed moment for international arbitration in South Korea. As foreign investors flooded the market and bought South Korean companies in fire sales, arbitration clauses were introduced in M&A transactions. With the drastic increase in the number of contracts containing arbitration clauses, international arbitration quickly became a well-known mechanism for dispute resolution for South Korean practitioners and members of the business community.

Enacting an arbitration act

With the sudden and rapid growth of arbitration, institutional support and the legal infrastructure for international arbitration also began to grow in parallel. The Korean Arbitration Act (KAA), 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 KAA were made, incorporating the 2006 amendments to UNCITRAL Model Law into domestic law. The most significant changes in 2016 were:

• alleviating the requirement for arbitration agreements to be in writing;
• the granting of interim measures by a tribunal;
• the Korean court’s assistance in taking evidence for the arbitration; and
• simplifying the process for the recognition and enforcement of arbitral awards.

In the same year, the Korean Commercial Arbitration Board (KCAB) adopted significant revisions to both its international arbitration rules and domestic arbitration rules. 

Trends in South Korean Arbitration

Since the 2016 amendments to the KAA and KCAB International and Domestic Arbitration Rules, South Korea has seen substantial developments in various legal issues related to arbitration.

In addition, as of 1 January 2024, the KCAB enacted and implemented the KCAB International Mediation Rules to bolster dispute resolution through international mediations, further strengthening South Korea’s position as an attractive hub for alternative dispute resolution. 

Moreover, the South Korean government is eager to promote arbitration in the hope of making Seoul the new Asian hub for international arbitration. The Arbitration Industry Promotion Act came into effect in 2017, the aim of which is to provide for long-term planning and government financial support for the promotion of international arbitration in South Korea. 

Pursuant to the Arbitration Industry Promotion Act, the South Korean Ministry of Justice implemented the first Master Plan for Promotion of the Arbitration Industry for 2019–2023 (the “Master Plan”). The Master Plan aims to promote the arbitration industry, provide support personnel to the KCAB, and create policies that will make South Korea an attractive potential arbitral seat or physical venue for hearings. The South Korean Ministry of Justice plans to establish the second Master Plan for 2024-2029.   

In line with these legislative initiatives to foster an arbitration-friendly environment, South Korean courts have also become increasingly supportive of arbitration by consistently upholding arbitration agreements, assisting the arbitral tribunal in taking evidence and enforcing arbitral awards. 

Today, arbitration is not merely an alternative to traditional court litigation, but the preferred dispute resolution mechanism for cross-border disputes in South Korea.

Key industries in South Korea have undoubtedly been affected by the COVID-19 pandemic. Nevertheless, as South Korea emerges as a North-East Asian international arbitration hub, certain industries – such as construction, commerce, IT, trade, entertainment, IP, real estate, maritime, M&A, joint venture and finance – are continuing to experience growth in international arbitration activities. 

Investment treaty arbitrations involving the South Korean government have also experienced rapid growth since 2019. In 2019, the South Korean government introduced the Regulation on International Investment Dispute Prevention and Response (the “ISDS Regulation”), a presidential directive that provides for an effective prevention and response system and a channel facilitating co-operation among relevant government departments. In particular, the South Korean Ministry of Justice has created a response team composed of lawyers and high-ranking officials to effectively prevent and respond to international investment disputes.

The KCAB remains the only officially recognised arbitral institution in South Korea and is often selected by parties for arbitrations seated in South Korea. It is statutorily empowered to settle all types of commercial disputes under the KAA. It also conducts and administers mediation. 

The KCAB was established in 1966 with the main purpose of resolving disputes quickly and impartially through arbitration, mediation and conciliation. In April 2018, the KCAB established a separate division, KCAB International, which exclusively manages international arbitration. The KCAB International is a relatively young arbitration institution in Asia, but is gradually progressing and steadily catching up with its neighbouring counterparts such as the Singapore International Arbitration Centre (SIAC) and the Hong Kong International Arbitration Centre (HKIAC). 

The KCAB has adopted separate rules for domestic and international arbitrations. Arbitrations between South Korean parties are usually 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 South Korea, the KCAB International Arbitration Rules (the “KCAB Rules”) apply as the default rules.

Parties choosing Seoul as the seat of arbitration often opt for the rules of other leading international arbitral institutions, such as the ICC, SIAC, and HKIAC. The SIAC and the HKIAC are more frequently used for arbitrations seated outside South Korea between Asian parties. The ICC and the London Court of International Arbitration (LCIA) are also often used for arbitrations between a South Korean party and a western party. Although less common, there are also ad hoc arbitrations under the UNCITRAL arbitration rules.

The South Korean judicial system does not have any specific courts designated for disputes related to international or domestic arbitration. However, South Korean judges are generally well versed in international or domestic arbitration, and, when dealing with the validity of arbitration agreement or enforcement of an arbitral award, Korean courts tend to take an arbitration-friendly approach. 

The primary legislation governing international arbitrations in South Korea is the KAA, which is based on the UNCITRAL Model Law. The KAA governs both domestic arbitrations and international arbitrations seated in South Korea.

The latest major revisions to the KAA 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 KAA in 2016 included:

• the expansion of the scope of arbitration to non-property/non-monetary disputes that may be resolved by the parties’ settlement;
• the relaxation of the requirements concerning the written form of the arbitration agreement;
• detailed provisions for interim measures ordered by an arbitral tribunal and their enforcement by the South Korean court;
• simplified procedures for recognition and enforcement of arbitral awards in South Korean courts; and
• provisions addressing the South Korean courts’ co-operation in collecting evidence in arbitral proceedings.

It should be noted that the KAA, as amended in 2016, and the UNCITRAL Model Law are not completely identical. In particular, the KAA 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 setting aside the proceedings. Neither does the KAA limit its application to solely “international” or “commercial” arbitrations, which in turn broadens its application.

Additionally, Article 17 of the KAA also deviates from the UNCITRAL Model Law by providing that, where an arbitral tribunal rules on its jurisdiction or scope of authority at the preliminary stage, either party may appeal the decision by challenging the arbitral tribunal’s jurisdiction to the South Korean district court within 30 days.

Further to the aforementioned most recent amendments to the KAA in 2016 (see 2.1 Governing Legislation), South Korea’s Act on Private International Law was revised comprehensively for the first time since its complete amendment in 2001 (the “Revised Act”). The Revised Act became effective as of June 2022. Notably, the Revised Act includes new provisions on the general and special jurisdiction of South Korean courts and the jurisdiction clause in a contract. 

Article 8 of the KAA, in line with Article 7 of the UNCITRAL Model Law, requires an arbitration agreement to be in writing either as an arbitration clause included in a contract or as a separate agreement. 

An arbitration agreement is considered to be “in writing” when: 

• the terms and conditions of an arbitration agreement have been recorded, regardless of whether such agreement was made orally, by conduct, or by any other means; 
• an arbitration agreement is evidenced by electronic communication; or 
• one party asserts that an application or a written answer exchanged between the parties contains an arbitration agreement, and the other party does not deny such assertion; likewise, a reference in a contract to a document containing an arbitration clause (such as general terms and conditions) can constitute a valid arbitration agreement.

The KAA does not provide specific rules for determining the arbitrability of claims. However, the 2016 amendments to the KAA extended the definition of “arbitration” to include 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).

As is the case in many other jurisdictions, matters of criminal law, family law and administrative law are not arbitrable in South Korea. 

To date, there is no clear South Korean court precedent on whether claims related to economic regulatory laws (eg, antitrust and insolvency regulations or IP rights) are arbitrable. Legal commentators, however, have noted a trend in international arbitration favouring the arbitrability of disputes in such areas, and at least one South Korean court has enforced a foreign arbitral award (in 1995) based on a licensing agreement that allegedly violated South Korean fair trade laws. 

South Korean courts generally respect the parties’ agreement to arbitrate. Pursuant to Article 9 of the KAA, if one party brings an action in court against another party when there is a valid arbitration agreement between the parties and the other party raises a defence based upon the existence of an arbitration agreement before making any defence on the merit of the case, the court is required to dismiss the action – unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed.

South Korean courts tend to interpret arbitration agreements broadly. They are also considered generally friendly 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 a valid agreement to arbitrate by the South Korean courts. The South Korean Supreme Court held that an optional arbitration clause stating that “the dispute shall be referred to adjudication/arbitration in accordance with the laws of the purchaser’s country” cannot be regarded as a valid arbitration agreement if a party, in response to the other party’s request for arbitration, asserts that there is no agreement to arbitrate and opposes arbitration to resolve a dispute (Supreme Court Decision 2003Da318, rendered on 22 August 2003).

Furthermore, the Seoul District Court determined that a dispute resolution clause that states “if a dispute cannot be resolved by settlement, it will be resolved by the KCAB arbitration. If any party objects to the arbitral award, the dispute will be finally resolved at the national court” is not a valid arbitration agreement because it simply allows re-examination of the arbitral award by the national court (Seoul District Court Decision 2002Gahap8808, rendered on 24 October 2002).       

Regarding the question of the governing law of arbitration agreements, the South Korean 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. Otherwise, it will be determined 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 New York Convention (Supreme Court Decision 2017Da225084, rendered on 26 July 2018).

Article 17(1) of the KAA provides that when an arbitral tribunal is ruling on its own jurisdiction, the arbitral tribunal shall treat the arbitration clause as separate and independent from the main contract in which the arbitration clause is included. In essence, the KAA adopts the principle of separability by allowing the arbitral tribunal to exercise jurisdiction over the dispute with respect to the validity of the arbitration agreement.

The South Korean courts, however, can review the decision of an arbitral tribunal on its own jurisdiction at the request of a party within 30 days of the decision, as per Article 17(6) of the KAA.

Also, pursuant to Article 9 of the KAA, the South Korean courts have the authority to review whether an arbitration agreement is null and void, inoperable, or incapable of being performed, if a party to a lawsuit raises a defence that there is a valid arbitration agreement and thus the lawsuit should be dismissed. 

The KAA and the KCAB Rules do not limit the parties’ autonomy to select arbitrators and there are no set legal requirements when it comes to the qualifications, and characteristics of arbitrators. Therefore, there are no restrictions such as being a qualified lawyer in order to serve as an arbitrator. Parties are free to agree on the specific qualifications of potential arbitrators and the procedure for appointing them. While the KCAB maintains an active 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 are free to agree on the procedure for selecting arbitrators. When their chosen method fails, or in the absence of such an agreement, Articles 11 and 12 of the KAA provide default mechanisms for the constitution of arbitral tribunals for arbitrations seated in South Korea. 

One such example is the provision in Article 11 that for cases where the parties fail to determine the number of arbitrators, the number shall be three. However, under the KCAB Rules, in the absence of the parties’ agreement on the number of arbitrators, the default is to appoint a sole arbitrator (KCAB Rules, Article 11).

Article 12(3) provides that where the parties fail to agree on the procedure for appointing arbitrators, they shall be appointed as follows. 

• Sole arbitrator arbitration – if the arbitrator is not appointed within 30 days of a party receiving the counterparty’s request to appoint the arbitrator, the competent court or arbitral institution designated by the competent court shall appoint the arbitrator at the party’s request. 
• Three-arbitrator arbitration – each party shall appoint one arbitrator, and the two party-appointed arbitrators shall agree on the third arbitrator. If one party fails to appoint its party-appointed arbitrator within 30 days of the counterparty’s request – or if the two party-appointed arbitrators fail to agree on the third arbitrator within 30 days of their appointment – the competent court or arbitral institution designated by the competent court shall appoint the third arbitrator upon a party’s request.

In 2022, the South Korean Supreme Court rendered that if an application for the appointment of an arbitrator is made, the court will immediately select an arbitrator, unless there are special circumstances. Such circumstances include an arbitration agreement not meeting the requirement under Article 8 of the KAA, or the non-compliance of the appointment procedure agreed by the parties under Article 12, resulting in the court being unable to review the existence or validity of an arbitration agreement and dismissing the application upon such review (Supreme Court Decision 2020Gu633, rendered on 29 December 2022).

Article 12(4) of the KAA 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.

The international arbitration community in South Korea has recently witnessed increased interest in multi-party arbitrations. To date, the KAA does not provide default mechanisms for selecting arbitrators in multi-party arbitrations. However, the 2016 amendments to the KCAB Rules do include such default procedures for multi-party arbitrations under Rule 12(3). 

The South Korean court may intervene at the request of a party in the following matters as prescribed under the KAA:

• rendering orders for provisional measures before the commencement of the arbitration or during the arbitration proceedings under Article 10;
• appointing arbitrators under Articles 12(3) and (4);
• challenging the appointment of arbitrators under Article 14(3); 
• terminating the mandate of an arbitrator, if there is a dispute between the parties, under Article 15(2); 
• reviewing the jurisdiction of the arbitral tribunal under Article 17(6); and
• recognising and enforcing the interim measures rendered by the arbitral tribunal under Article 18(7).

The South Korean court may also provide assistance for evidence gathering, pursuant to Article 28.

Article 13 of the KAA provides that an arbitrator may be challenged if:

• there are circumstances that give rise to justifiable doubts about the arbitrator’s impartiality or independence; or
• the arbitrator does not possess qualifications agreed by the parties.

Under Article 14(1) of the KAA, the parties are free to agree on a procedure for challenging an arbitrator. Failing such an agreement, under Article 14(2), the party challenging an arbitrator shall send a written statement of the grounds for challenge to the arbitral tribunal within 15 days: 

• from the date of the constitution of the arbitral tribunal; or 
• from when the party becomes aware of the grounds for the challenge. 

If the challenged arbitrator does not resign, 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 receiving the arbitral tribunal’s decision, pursuant to Article 14(3) of the KAA. The South Korean court’s decision on the challenge cannot be appealed (Article 14(4) of the KAA).

Regarding the deadline for challenging arbitrators, the South Korean Supreme Court has held that even if circumstances give rise to justifiable doubts as to an arbitrator’s impartiality or independence, which are not as severe as grounds for challenging judges under the South Korean Civil Procedure Act, such circumstances do not constitute grounds for setting aside an arbitral award unless they were raised in a timely manner (Supreme Court Decision 2004Da47901, rendered on 29 April 2005). Therefore, any challenge against an arbitrator must be raised within the period set forth in Article 14 of the KAA.

Article 14 of the KCAB Rules also sets forth similar grounds for the challenge of arbitrators (for lack of independence or impartiality), and Article 15 of the KCAB Rules deals with the replacement and removal of arbitrators. 

The KAA requires potential arbitrators to disclose all circumstances likely to give rise to justifiable doubts as to their impartiality or independence. The South Korean Supreme Court has ruled that the disclosure requirement is a mandatory provision, meaning that it cannot be waived by the parties (Supreme Court Decision 2004Da47901, rendered on 29 April 2005). The KAA also includes a mandatory provision (Article 19) that parties must receive equal treatment during arbitral proceedings, the failure of which can result in the setting aside of the final award under Article 36 of the KAA. 

Similarly, the KCAB Rules stipulate that all arbitrators must be impartial and independent and remain so at all times (Article 10). The KCAB has also issued a Code of Ethics for Arbitrators that all arbitrators appointed to hear arbitrations administered by the KCAB must accept and abide by.

The KAA does not address subject matter arbitrability. Article 3(1) of the KAA nonetheless 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 that can be settled between parties. Therefore, as in most other jurisdictions, 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 generally considered non-arbitrable. 

On the other hand, the arbitrability of matters relating to IP, insolvency, and antitrust remains unclear under South Korean law. Although IP licensing disputes (claims for violation of IP licenses) are generally considered arbitrable, there are conflicting views on whether validity claims of registered IP rights (eg, patents) can be referred to arbitration.

The principle of competence-competence is recognised in Article 17(1) of the KAA, 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 arbitral tribunal no later than its submission of the statement of defence on the merits. However, if the party’s jurisdictional objection is that the arbitral tribunal exceeded the scope of its authority, the objection can be raised as soon as it occurs. The arbitral 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 KAA authorises South Korean courts to review the arbitral tribunal’s decision on its own jurisdiction when the arbitral tribunal made the decision as a preliminary matter. A party can make an appeal to the South Korean court against the arbitral tribunal’s decision on its own jurisdiction within 30 days of receiving notice of such decision.

Although the arbitral tribunal may rule on its own jurisdiction under the competence-competence rule, Article 17(6) of the KAA bestows the final decision-making authority on the South Korean courts by allowing a party to appeal an arbitral tribunal’s jurisdictional ruling.

Prior to the 2016 amendments to the KAA, only affirmative decisions (eg, an arbitral tribunal’s decision that jurisdiction exists) were subject to appeal before the Korean court. However, Article 17(6) has been amended to allow parties to challenge not only affirmative jurisdictional decisions but also an arbitral tribunal’s negative decision (eg, denying its jurisdiction).

The provision, however, is not often invoked in practice. The South Korean courts are generally reluctant to intervene and overturn the decision of the arbitral tribunal on its jurisdiction.

Pursuant to Article 17(2) of the KAA, a challenge to the jurisdiction of the arbitral tribunal must be raised with the arbitral tribunal no later than when the statement of defence on the merits is submitted. A party disputing the arbitral tribunal’s jurisdiction can raise such an objection even after the party has participated in the process of constituting the arbitral tribunal. 

An appeal against the arbitral tribunal’s jurisdictional ruling before the national court under Article 17(6) of the KAA must be filed within 30 days of receiving notice of such ruling.

South Korean courts conduct a de novo review of an arbitral tribunal’s jurisdiction. Therefore, courts are not bound by the arbitral tribunal’s decision on its own jurisdiction. However, the South Korean courts generally tend to respect the arbitral tribunal’s decision on its own jurisdiction.

Whether a claim is arbitrable or whether the claim falls within the scope of the arbitration agreement between parties is also reviewed de novo by the courts when there is any challenge to the arbitral award or award enforcement proceedings. 

However, South Korean courts will not review questions about the nature of the claim and its admissibility in the arbitration (other than questions about arbitrability or scope of the arbitration agreement) or questions about the admissibility of evidence, as these matters concern the merits of the case.

When a party commences court proceedings in breach of an arbitration agreement, the defendant may raise a defence based on the existence of an arbitration agreement and request the court to dismiss the lawsuit pursuant to Article 9(1) of the KAA. This must be done before the first submission on the merits of the case is filed.

Under Article 9(1), a court must 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 KAA does not address whether an arbitral tribunal may exercise jurisdiction over a third party that is a non-signatory 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 lawsuit pursuant to Article 9(1) of the KAA (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.

As will be explained below, there are no clear precedents on whether the “group of companies” or “piercing of the corporate veil” doctrines can be used to exercise jurisdiction over non-signatories to the arbitration agreement. 

Group of Companies Doctrine

There is no clear South Korean court precedent that allows arbitral tribunals to exercise jurisdiction over a third party on the grounds that the third party is an affiliate company of the contracting party (eg, parent or subsidiary), which is not a party to an arbitration agreement. 

Piercing of the Corporate Veil Doctrine

Although South Korean jurisprudence generally recognises the “piercing of the corporate veil” doctrine, the South Korean courts have yet to rule on whether this doctrine allows an arbitral tribunal to exercise its jurisdiction over third parties. Some commentators have argued that where the corporate veil is lifted in the case of a party to an arbitration agreement, an arbitral tribunal may assume jurisdiction over the third party (individual or entity) behind the corporate veil – particularly if the third party is without substantial business activities of its own and is the parent of a contracting party. 

The KAA allows the arbitral tribunal to award preliminary or interim relief, as deemed necessary, at the request of either party.

The 2016 amendments to the KAA incorporated more detailed provisions on the types of interim relief that an arbitral tribunal can order. Article 18(2) of the KAA provides that an arbitral tribunal may order interim measures requiring either party to perform any of the following actions:

• maintain or restore the status quo until an arbitral award is rendered on the merits of the case; 
• adopt measures to prevent an existing or imminent danger or impact to the arbitral proceeding itself, or prohibit measures that are likely to endanger or impact the arbitral proceeding; 
• provide methods for preserving assets subject to the enforcement of an arbitral award; and
• preserve evidence relevant and essential to the resolution of the dispute.

An interim measure issued by an arbitral tribunal is binding and can be enforced upon application to the competent court if the arbitration is seated in South Korea (Article 18-7 of the KAA).

South Korean courts play two major roles in interim relief procedures in arbitration:

• granting interim measures (Article 10 of the KAA); and
• recognising and enforcing the interim measures issued by the arbitral tribunal (Article 18-7 of the KAA). 

First, in accordance with Article 10 of the KAA, the South Korean courts can issue interim measures upon a party’s request made before or during the arbitral proceedings. Although Article 10 is silent on the type of interim measures that the courts may grant, it is generally understood that they include provisional attachment or preliminary injunctions. The South Korean courts may issue interim measures regardless of the seat of arbitration (even when the seat is outside South Korea) or even when the seat of arbitration is yet to be determined (Article 2(1) of the KAA).

Second, in accordance with Article 18-7 of the KAA, the South Korean courts assist with the recognition and/or enforcement (eg, compulsory execution) of interim measures issued by the arbitral tribunal upon the request of the parties only if the arbitration is seated in South Korea. 

Emergency Arbitrator

In recent years, the notion of the “emergency arbitrator” in the context of expedited proceedings for parties to obtain interim measures has gained much attention. To date, the KAA is silent as to the emergency arbitrator. However, the 2016 revisions to the KCAB Rules introduced proceedings for an emergency arbitrator in Appendix 3 of the KCAB Rules, under which a party may seek interim measures through an emergency arbitrator before the constitution of the arbitral tribunal. 

Once appointed, emergency arbitrators must make a decision within 15 days of their appointment (Article 3(4) of Appendix 3 of the KCAB Rules). 

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 KAA (Article 32 of the KCAB Rules). 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 (Article 4 of Appendix 3 of the KCAB Rules). The power of the emergency arbitrator shall be terminated upon the constitution of the arbitral tribunal (Article 3(7) of Appendix 3 of the KCAB Rules).

Courts and arbitral tribunals are both authorised to order security for costs with respect to the parties’ requests to obtain, recognise or enforce interim measures under the KAA. 

Under Article 18-4 of the KAA, an arbitral tribunal may order the party requesting interim measures to provide security. Similarly, if deemed necessary, South Korean courts are empowered under Article 18-7(3) of the KAA to order security against the party requesting recognition or enforcement of interim measures when the arbitral tribunal has not ordered to provide security, or when there is a risk of infringing the rights of a third party.

Generally, parties are free to choose their own procedural rules either by agreement or by the rules of the chosen arbitral institution. In principle, the agreement between the parties shall prevail over default provisions and be recognised as the dominant rules of the arbitration. Parties are free to agree on the specific procedures for the arbitration, and the KAA operates as a default rule where there is no agreement between the parties. Article 20(1) of the KAA states that the parties can agree on the arbitration procedures except for the mandatory provisions under the KAA.

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 KAA. 

In tandem with the parties’ agreement and arbitrators’ discretion, the KAA also provides applicable procedural rules. There are mandatory procedural rules in the KAA to ensure that arbitrations conducted in South Korea comply with notions of fair and due process, such as Article 19 of the KAA stipulating that all parties receive equal treatment during the proceedings and are given a full opportunity to present their cases.

In line with the principle that arbitration is a creature of “consent”, procedural steps are generally implemented by the agreement of the parties or rules of the arbitral institution chosen by the parties. 

In the absence of such an agreement, the KAA provides for a general arbitration process for an arbitration seated in South Korea as per the following.

• Commencement of Arbitration (Article 22) – arbitral proceedings shall commence on the date the respondent receives the request for arbitration.
• Language (Article 23) – language of the arbitration will be determined by the parties’ agreement and, in absence of such agreement, by the arbitral tribunal. If the arbitral tribunal does not make the determination, the default language shall be Korean. 
• Submissions (Article 24) – the parties shall submit their respective written submissions, laying out their claims and defences to the other party’s claims within the timeframe agreed by the parties or decided by the arbitral tribunal. The parties may submit, along with their statements of claim or defence, all documents they consider to be relevant or which may indicate other evidence they will use in the documents. 
• Hearings (Article 25) – subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings or to render an award solely based on written submissions and documents. 
• Failure of the Parties (Article 26) – subject to any contrary agreement by the parties, the arbitral tribunal shall terminate arbitral proceedings if the claimant fails to submit its statement of claim. If the respondent fails to submit its statement of defence, the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admission of the claimant’s allegations.

The KAA grants powers to an arbitral tribunal to:

• decide on matters of its jurisdiction (Article 17(1) of the KAA);
• order interim relief (Article 18);
• determine the admissibility and weight of the evidence (Article 20(2));
• determine the seat and language of the arbitration in the absence of the parties’ agreement (Articles 21, 23);
• decide on the allocation of the arbitration costs as well as the pre- and post-interest unless agreed otherwise by the parties (Article 34-2, 3); and
• issue arbitral awards on the dispute referred to arbitration.

Under the KAA, 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 (Article 19). Arbitrators are also required to disclose any circumstances that may raise doubts as to their fairness or independence (Article 13(1)). 

The KAA does not prescribe particular qualifications or other requirements for legal representatives appearing in arbitrations seated in South Korea. Thus, legal representatives appearing in arbitrations seated in South Korea are not required to be members of the South Korean Bar. The Foreign Legal Consultant Act in South Korea clearly stipulates that a foreign legal consultant registered in South Korea and a foreign licensed lawyer can represent a party in an international arbitration.   

The KAA does not provide specific procedures for the collection and submission of evidence at the pleading or hearing stage. It does, however, provide that: 

• parties may submit evidence together with their written submissions (Article 24); 
• the arbitral tribunal should give sufficient advance notice to the parties of any oral hearing and of any meeting for the purpose of inspection of other evidence (Article 25(2)); 
• all statements, documents or other materials submitted by either party to the arbitral tribunal should be conveyed to the other party without delay (Article 25(3)); and 
• any expert report or evidentiary document on which the arbitral tribunal intends to rely in making its decision should be conveyed to both parties (Article 25(4)). 

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 South Korea or involving South Korean parties to include some form of document production. In such cases, the scope of document production would be much broader than the scope allowed in South Korean civil litigation proceedings. The International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration (the “IBA Rules”), although not binding, are generally taken into account in international arbitrations seated in South Korea. 

It is also common for parties to arbitrations in South Korea to submit witness statements as part of the pleading stage. Parties may also appoint their own experts and submit expert reports, if necessary, during the pleading stage. These witnesses and experts may be cross-examined at the hearing. 

With respect to experts, Article 27 of the KAA allows the arbitral tribunal to appoint one or more experts for consultation on specific issues, unless agreed otherwise 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 arbitral tribunal can be made on the same grounds and through the same process as a challenge to the appointment of an arbitrator (Article 27(3) of the KAA).

South 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. The KAA provides that the arbitral tribunal has the discretion to determine the admissibility, relevance, and weight of the evidence (Article 20(2)). Although not automatically binding, the IBA Rules are commonly adopted in international arbitrations seated in South Korea.

Article 28 of the KAA, as amended in 2016, provides that an arbitral tribunal may, either on its own initiative or at the request of a party, request the South Korean court to examine evidence or co-operate in examining evidence. 

When an arbitral tribunal requests a court to directly examine evidence, the arbitrators or the parties involved may attend the examination of evidence with the permission of the presiding judge (Article 28(3) of the KAA). When a court is requested to co-operate in the examination of evidence, the court may order witnesses, holders of documents, or others (including non-parties to the arbitration) to make an appearance before the arbitral tribunal, or to submit the necessary documents to the arbitral tribunal (Article 28(5) of the KAA).

The KAA does not contain any provisions relating to the confidentiality of arbitral proceedings. In addition, there is no South Korean court precedent addressing this issue. Thus, there is no automatic requirement of confidentiality in arbitrations seated in South 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 KAA, arbitral proceedings in South Korea have generally been treated in strict confidence. 

For its part, Article 57 of the KCAB Rules provides that the arbitral procedure and records are confidential and that the arbitral 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 or required by law or court proceedings.

Article 32(1) of the KAA provides that the award shall be made in writing and signed by all the arbitrators. If a minority of the arbitral tribunal has any reason not to sign the award, the award shall become effective with the signature of the majority of the arbitrators and the reason for the failure or refusal to sign will be stated in the award.

In accordance with Article 32(2) of the KAA, the award shall state the reasons upon which it is based unless the parties have agreed otherwise or if the award is a consent award, which is an award on agreed terms of a settlement between the parties under Article 31 of the KAA. The award shall also state its date and place of arbitration (Article 32(3) of the KAA). The KAA, however, does not specify any time limit for rendering the award.

For KCAB international arbitrations, Article 38 of the KCAB Rules provides a time limit for a final award (eg, within 45 days from the date the final submissions are made or the hearings are closed, whichever is later). Such time limit can be extended.

The KAA does not place any restrictions on the types of remedies that an arbitral tribunal can render. In practice, when choosing the remedies, the arbitral tribunal must take into consideration the enforceability of its award in South Korea, if the award is to be enforced in South Korea. 

For example, South Korean courts do not allow punitive damages as a matter of public policy, unless expressly allowed under applicable laws, such as the South Korean Product Liability Act. Therefore, an arbitral award ordering punitive damages for breach of contract or tort liability would not be enforced in South Korean courts. 

Additionally, if the award is to be enforced in South Korea, the parties and the arbitral tribunal should be careful in specifying the relief in sufficient detail to allow enforcement under applicable South Korean laws (eg, specifying the exact asset to be transferred, the monetary amount to be paid or the actual action a party must perform). 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 actually executed by the execution officer. Thus the court did not pronounce the provisional execution in its judgment (Seoul High Court Judgment 2013Na13506). 

With respect to interest, claimants generally seek 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 KAA, the arbitral tribunal may order either party to pay pre- and/or post-award interest after considering all the circumstances of the relevant arbitration case if deemed appropriate – unless the parties have agreed otherwise.

As for arbitration costs, unless the parties have agreed otherwise, an arbitral tribunal has explicit authority under Article 34(2) of the KAA to allocate arbitration costs between the parties, taking into consideration all pertinent circumstances of the case. The “loser pays” rule generally applies to arbitrations in South Korea, but the arbitral tribunal has discretion to decide otherwise in light of relevant factors.

An arbitral award has the same effect on the parties as a “final and conclusive judgment of the court” under Article 35 of the KAA, unless the court refuses to recognise or enforce the award under either Article 38 (awards made in South Korea) or Article 39 (awards made in foreign jurisdictions) of the KAA. This means that parties may not appeal an award per se. Nevertheless, parties may file a lawsuit to set aside the award under Article 36 of the KAA, which closely mirrors Article 5(1) of the New York Convention. 

In order to set aside an award, parties must file a lawsuit with the court within three months of its receipt of the duly authenticated copy of the award (Article 36(1) and (3) of the KAA) and state the grounds upon which the party seeks to set aside the award. Grounds for setting aside an award must be proven by the party seeking the setting aside and are limited to the following. 

• A party to the arbitration agreement was incapacitated when the agreement was entered into, or the arbitration agreement is not valid under the law selected by the parties to govern the agreement (or, failing any such indication, under South Korean law).
• The party making the application was not given proper notice of the appointment of arbitrators, or of the arbitral proceeding, or was otherwise unable to present its case. 
• The award deals with a dispute not contemplated by the parties or not subject to the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agreement. 
• The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or the KAA.

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 South Korean law, or that the award is in conflict with the public policy of South Korea. South Korean courts tend to interpret such grounds for setting aside narrowly.

An application to set aside an arbitral award is filed at a district court of first instance within three months from the receipt of the award (Article 36(3) of the KAA). 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 even if an appeal is pending.

The grounds for setting aside an arbitral award are limited to the grounds explicitly provided in Article 36 of the KAA. 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 because they cannot review the arbitral tribunals’ findings of law and facts. This means that errors of law or fact made by an arbitral tribunal generally do not qualify as grounds for setting aside an arbitral award by the courts.

South Korea signed the New York Convention on 8 February 1973, which came into effect on 9 May 1973. 

South 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.

Article 37

Article 37 of the KAA provides general procedures for the enforcement of an arbitral award. 

Under Article 37(2), 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 (Article 37(3). A South Korean translation must also be provided if the award is in a foreign language.

Once the application for recognition or enforcement of an award is filed with the court, it will set a hearing date for both parties to present their case. The court’s decision on the recognition or enforcement of an award must contain the reasons for the decision (Article 37(4)(5)). 

The 2016 amendments to the KAA allowed enforcement based on a “decision” of the district court rather than a “judgment”. The purpose of this amendment was to expedite enforcement proceedings as the “decision process” takes less time than the “judgment process”. 

Articles 38 and 39 provide the grounds to refuse the recognition or enforcement of an arbitral award – more specifically, Article 38 for an award made within South Korea, and Article 39 for an award made outside of South Korea.

Article 38

Article 38 of the KAA provides that an arbitral award made in South Korea must be recognised and enforced unless a party proves that: 

• there are grounds for setting aside the award under Article 36(2) 1 of the KAA; 
• the award is yet to be effective and binding upon the parties; or 
• the award has already been set aside by a national court. 

The court can also, at its own discretion, refuse to recognise and enforce the arbitral award made in South Korea if the dispute is not arbitrable under South Korean law, or the recognition or enforcement of the award is in violation of public policy, as stipulated in Article 36(2) 2 of the KAA. 

Article 39

Article 39(1) of the KAA provides that arbitral awards made outside of South Korea shall be recognised or enforced according to the requirements under the New York Convention where it applies.

Under Article 39(2) of the KAA, arbitral awards made outside of South Korea where the New York Convention does not apply shall be recognised or enforced in the same manner as a foreign court judgment pursuant to the Civil Procedure Act and the Civil Execution Act regarding the recognition and enforcement of a foreign court judgment (Article 39(2) of the KAA).

Lastly, there is no clear indication of whether South Korean courts would enforce an award that is subject to ongoing set-aside proceedings at the seat of arbitration. Presumably, however, the South Korean courts would adjourn the enforcement proceedings per Article 6 of the New York Convention.

South Korean courts will generally recognise and enforce arbitral awards unless there are clear grounds for setting aside the award under the KAA. Furthermore, 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 KAA is silent on the issue of class action arbitration or group arbitration. Also, there is no precedent from the South Korean courts on class action arbitration or group arbitration.

Under the KAA, there are no mandatory ethical codes or professional standards applicable to either counsel or arbitrators. The KAA does, however, require arbitrators conducting proceedings in South Korea to disclose whether there are any circumstances likely to give rise to justifiable doubt about their impartiality or independence in advance (Article 13(1)). 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 arbitrations administered by the KCAB.

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 South Korean market. Although third-party funding remains an issue of increased interest in South Korea, no legislation has been introduced so far in order to directly address this issue. 

There is currently no express rule or restriction on third-party funders in South Korea, nor is there a law that specifically allows for it. Also, there are no notable court precedents on this issue. 

The KAA does not expressly preclude or permit the consolidation of separate arbitral proceedings. 

Nevertheless, Article 23 of the KCAB 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: 

• the arbitrations are under the KCAB Rules; 
• the arbitrations are between the same parties; and 
• no arbitrator has been appointed in any of the arbitrations. 

Article 22 of KCAB Rules also allows a “single arbitration under multiple contracts”. This means claims arising under multiple contracts may proceed as 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 the 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 KAA 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 Jurisdiction Over Third Parties. 

However, under the KCAB Rules, the arbitral tribunal may allow third parties to join the arbitration proceedings if all parties and the third parties have agreed to the joinder of third parties or if the third parties are a party to the same arbitration agreement and have agreed to the joinder (Article 21). 

Regarding a similar issue involving third parties, there have been recent discussions on whether the arbitral award may be enforced against non-signatories to the arbitration agreement. However, South Korean courts have yet to rule on this issue.