SOUTH KOREA Law and Practice Contributed by: Yun Jae Baek, Jeonghye Sophie Ahn, Hyunah Park and Seyoung Choe, Yulchon LLC
1.4 National Courts 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 interna - tional or domestic arbitration, and, when dealing with the validity of arbitration agreement or enforcement of an arbitral award, South Korean courts tend to take an arbitration-friendly approach.
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 departs from the UNCITRAL Model Law by granting parties a right to challenge in respect of both affirmative and negative decisions of the arbitral tribunal on its jurisdiction. 2.2 Changes to National Law Further to the aforementioned most recent amend - ments to the KAA in 2016 (see 2.1 Governing Legisla- tion ), 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 UNCI - TRAL 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 writ - ing” when: • the terms and conditions of an arbitration agree - ment 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. 3. The Arbitration Agreement 3.1 Enforceability
2. Governing Legislation 2.1 Governing Law
The primary legislation governing international arbitra - tions 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 enforce - ment of arbitral awards in South Korean courts; and • provisions addressing the South Korean courts’ co-operation in collecting evidence in arbitral pro - ceedings. 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
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