The Arbitration Agreement - Chapter 3 - Arbitration Law of Korea: Practice and Procedure
Originally from Arbitration Law of Korea: Practice and Procedure
THE ARBITRATION AGREEMENT
The arbitration agreement is the foundation and indispensable element of an arbitration proceeding.1 Arbitration is a creature of contract in that its validity and binding effect depends, fundamentally, on the parties' mutual consent to arbitrate their dispute. The arbitration agreement is the expression of that consent and, accordingly, the source of an arbitrator's authority to exercise jurisdiction over a dispute and to render a binding decision in the form of an enforceable arbitral award. In this chapter, the arbitration agreement is considered in detail from the perspectives of Korean law and arbitral practice.
3.1 PRELIMINARY MATTERS
Article 3(b) of the Arbitration Act defines an "arbitration agreement" (jungje habui in Korean) as "an agreement between2 the parties to resolve, by arbitration, all or a part of disputes which have already arisen or which may arise in the future in respect of a defined legal relationship, whether contractual or not."3
The key elements of this definition are (i) an agreement to resolve all or a portion of present or future disputes by arbitration, (ii) a requirement that any such dispute must concern "a defined legal relationship," and (iii) the absence of any requirement that the dispute must be a contract dispute. Each of these elements is addressed below.
Prior to its amendment in 1999 to substantially adopt the UNCITRAL Model Law 1985, the Arbitration Act (1966) defined an "arbitration contract" (jungje kyeyak in Korean)4 as an "agreement between the parties concerned to settle through an arbitration the whole or part of any dispute which has arisen or will arise in the future between them with respect to any legal relationship under the private law."5 Thus, in contrast to the approach traditionally taken in some jurisdictions,6 Korean arbitration law has permitted arbitration agreements dealing with existing disputes7 as well as arbitration agreements dealing with future disputes8 without drawing any substantive distinction between the two in terms of legal effect.9