Originally from Dispute Resolution Journal

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Just a decade ago, Korean parties were viewed as relative newcomers to international arbitration with little experience in the arbitration process, and even large Korean companies generally had relatively small legal departments.  However, over the last ten years Korean parties have come a long way in terms of experience in arbitration and legal sophistication. For example, in 2015 Korean users ranked among the top three international users of SIAC arbitration, and many of Korea’s largest companies have grown into complex multinational conglomerates with large legal departments, often including attorneys from multiple jurisdictions.  However, as with most other jurisdictions, there is significant diversity among the international arbitration users in Korea, and many smaller Korean companies still lack sophisticated legal departments or experience with international arbitration.

Both of these categories of Korean users – experienced and novice – present unique challenges arising from specific characteristics of Korean cultural and legal practice. It would be incorrect and dangerous to treat Korean parties as a homogeneous group with regard to these idiosyncrasies, but there are common areas of concern, of which counsel representing Korean parties in international arbitration should be aware.  Further, an understanding of these issues is often equally important for counsel representing a non-Korean party in international arbitration against a Korean party.

These issues can arise as early as the drafting of an arbitration agreement, at which stage counsel will need to consider the preferred seats, governing law, and institutional (or ad hoc) rules which are most popular among, and best suited to the needs of, Korean parties.  Additional issues commonly arise from the formation of the tribunal and initiation of claims through the stage of enforcement of, or opposition to, a final arbitral award.  Comprehensive consideration of all of these issues can only be developed through extensive experience, and discussion of all of them would require more space than is permitted here.  In the interest of brevity, this essay is limited to issues relating to establishing or defending the claims in the course of the arbitration – i.e., concerns regarding (1) documentary evidence; (2) Korean factual witnesses; and (3) Korean expert witnesses – and issues arising in the context of settlement negotiations.