Korea, Republic of - National Report - World Arbitration Reporter (WAR) - 2nd Edition
John Rhie is a senior associate of the International Dispute Avoidance and Resolution group of McDermott Will & Emery UK LLP. John is a solicitor-advocate and specialises in international commercial and investment treaty arbitrations representing clients across a range of industries. John has worked in leading law offices in London, New York, Hong Kong and South Korea.
Originally from World Arbitration Reporter (WAR) - 2nd Edition
I. INTRODUCTION: ARBITRATION IN THE REPUBLIC OF KOREA – HISTORY AND INFRASTRUCTURE
A. History and Current Legislation on Arbitration
1. Historical evolution of law relating to arbitration
The Korean Arbitration Act (“KAA”) was enacted in 1966 and partly amended in 1973. With the growth of arbitration as a choice for dispute resolution in the Republic of Korea (“Korea”), the KAA was completely overhauled and was newly implemented on 31 February 1999. During the overhaul of the KAA, there was much debate as to whether Korea should adopt the UNCITRAL Model Law on International Commercial Arbitration in its entirety. Those in favour argued that a complete adoption would benefit the reputation of Korea as an arbitration friendly nation. However, the final version of the 1999 KAA adopted most, but not all, of the UNCITRAL Model Law due to public policy reasons.
2. Current law
Domestic and international arbitrations are governed by the KAA and there is no practical distinction between the two.
2. Applicable law 3. Subjective arbitrability a) Natural persons b) Legal persons c) States and state entities 4. Objective arbitrability E. Arbitral Tribunal 1. Status and qualifications of arbitrators a) Number of arbitrators b) Legal status c) Qualifications and accreditation requirements d) Arbitrators’ rights and duties 2. Appointment of arbitrators a) Methods of appointment b) Appointing authorities c) Resignation and its consequences 3. Challenge and removal a) Grounds for challenge b) Procedure for challenge c) Removal procedure d) Replacement of arbitrators 4. Arbitrator liability and immunity F. Conducting the Arbitration 1. Law governing procedure a) Determination of law and rules governing procedure b) Notion and role of seat of arbitration c) Methods for selection of seat absent party choice d) Mandatory rules of procedure 2. Conduct of arbitration a) Basic procedural principles b) Party autonomy and arbitrators’ power to determine procedure c) Style and characteristics of the oral hearing d) Documents only arbitrations e) Submissions and notifications f) Deadlines, and methods for their extension g) Legal representation h) Default proceedings 3. Taking of evidence a) Admissibility b) Burden of proof c) Standards of proof d) Evidentiary means – in general e) Documentary evidence and privilege f) Production of documents g) Witnesses h) Tribunal-appointed experts i) Party-appointed experts 4. Interim measures of protection a) Jurisdiction for granting interim measures b) Availability of preliminary or ex parte orders c) Types of measures d) Form of measures e) Security for costs f) Enforcement mechanisms 5. Interaction between national courts and arbitration tribunals a) Court assistance before the arbitration begins b) Court assistance during the arbitration c) Court assistance after the arbitration d) Case law examples of best and worst practices 6. Multiparty, multi-action and multi-contract arbitration 7. Law and rules of law applicable to the merits a) Determining the applicable law and rules b) Party autonomy c) Determination by arbitrators d) Non-national substantive rules, general principles of law and transnational rules 8. Costs a) Arbitration costs b) Legal costs c) Security for costs G. Arbitration Award 1. Types of awards 2. Form requirements a) Essential content b) Reasons
c) Time limits for making award d) Notification to parties and registration 3. Remedies a) Damages b) Specific performance c) Other typical remedies d) Interest 4. Decision making a) Deliberations b) Majority of Consensus? c) Dissenting and concurring opinions d) Signature 5. Settlement a) Settlement recorded in an award b) Settlement without an award c) Use of settlement techniques by arbitrators 6. Effects of award a) Effects between parties b) Effects against third parties c) Resjudicata 7. Correction, supplementation, and amendment H. Challenge and Other Actions against the Award 1. Setting aside a) Grounds b) Time limits c) Procedure d) Limiting judicial review of awards by contract e) Effects of successful challenge 2. Appeal on the merits III. RECOGNITION AND ENFORCEMENT OF AWARDS A. Domestic Awards 1. Statutory or other regime a) Distinction between recognition and enforcement b) Grounds for refusing recognition and enforcement c) Formal requirement for enforcement of awards d) Enforcement procedure e) Execution 2. Practice a) Grounds for refusing recognition and enforcement b) Enforcement procedure c) Execution B. Foreign Awards 1. Various regulatory regimes a) Domestic rules b) New York Convention c) Other international conventions d) Court practice applying regimes other than the New York Convention 2. Distinction between recognition and enforcement 3. Application of New York Convention by local courts a) Grounds for refusing recognition and enforcement b) Enforcement procedure c) Public policy as a ground to refuse enforcement d) Examples from practice IV. APPENDICES AND RELEVANT INSTRUMENTS A. National Legislation B. Major Arbitration Institutions C. Cases D. Bibliography