SOUTH KOREA Law and Practice Contributed by: Yun Jae Baek, Jeonghye Sophie Ahn, Hyunah Park and Seyoung Choe, Yulchon LLC
3.4 Validity Article 17 (1) of the KAA provides that when an arbitral tribunal is ruling on its own jurisdiction, the arbitral tri - bunal shall treat the arbitration clause as separate and independent from the main contract in which the arbi - tration 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 after having received the notice 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 agree - ment 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 arbi - trators 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 arbi - trators who are not listed in the roster. 4.2 Default Procedures Parties are free to agree on the procedure for select - ing 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. 4. The Arbitral Tribunal 4.1 Limits on Selection
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 appoint - ment – 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 arbitra - tor is made, the court will immediately select an arbi - trator, 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 appli - cation 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 appoint - ment of an arbitrator is not subject to appeal. The international arbitration community in South Korea has recently witnessed increased interest in
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