SOUTH KOREA Law and Practice Contributed by: Yun Jae Baek, Jeonghye Sophie Ahn, Hyunah Park and Seyoung Choe, Yulchon LLC
multi-party arbitrations. To date, the KAA does not provide default mechanisms for selecting arbitrators in multi-party arbitrations. However, the 2016 amend - ments to the KCAB Rules do include such default pro - cedures for multi-party arbitrations under Rule 12 (3). 4.3 Court Intervention The South Korean court may intervene at the request of a party in the following matters as prescribed under the KAA: • rendering orders for provisional measures before the commencement of the arbitration or during the arbitration proceedings under Article 10; • appointing arbitrators under Articles 12 (3) and (4); • challenging the appointment of arbitrators under Article 14 (3); • terminating the mandate of an arbitrator, if there is a dispute between the parties, under Article 15 (2); • reviewing the jurisdiction of the arbitral tribunal under Article 17 (6); and • recognising and enforcing the interim measures rendered by the arbitral tribunal under Article 18 (7). The South Korean courts may also provide assistance for evidence gathering, pursuant to Article 28. 4.4 Challenge and Removal of Arbitrators Article 13 of the KAA provides that an arbitrator may be challenged if: • there are circumstances that give rise to justifiable doubts about the arbitrator’s impartiality or inde - pendence; or • the arbitrator does not possess qualifications agreed by the parties. Under Article 14 (1) of the KAA, the parties are free to agree on a procedure for challenging an arbitra - tor. Failing such an agreement, under Article 14 (2), the party challenging an arbitrator shall send a written statement of the grounds for challenge to the arbitral tribunal within 15 days: • from the date of the constitution of the arbitral tribunal; or • from when the party becomes aware of the grounds for the challenge.
If the challenged arbitrator does not resign, or the oth - er party does not agree to the challenge, the arbitral tribunal shall decide on the challenge. If the arbitral tribunal does not uphold the challenge, the challenging party may file an objection with the competent court within 30 days of receiving the arbi - tral tribunal’s decision, pursuant to Article 14 (3) of the KAA. The South Korean court’s decision on the chal - lenge cannot be appealed (Article 14 (4) of the KAA). Regarding the deadline for challenging arbitrators, the South Korean Supreme Court has held that even if circumstances give rise to justifiable doubts as to an arbitrator’s impartiality or independence, which are not as severe as grounds for challenging judges under the South Korean Civil Procedure Act, such circum - stances do not constitute grounds for setting aside an arbitral award unless they were raised in a timely man- ner (Supreme Court Decision 2004Da47901, rendered on 29 April 2005). Therefore, any challenge against an arbitrator must be raised within the period set forth in Article 14 of the KAA. Article 14 of the KCAB Rules also sets forth similar grounds for the challenge of arbitrators (for lack of independence or impartiality), and Article 15 of the KCAB Rules deals with the replacement and removal of arbitrators. 4.5 Arbitrator Requirements The KAA requires potential arbitrators to disclose all circumstances likely to give rise to justifiable doubts as to their impartiality or independence. The South Korean Supreme Court has ruled that the disclosure requirement is a mandatory provision, meaning that it cannot be waived by the parties (Supreme Court Decision 2004Da47901, rendered on 29 April 2005). The KAA also includes a mandatory provision (Article 19) that parties must receive equal treatment during arbitral proceedings, the failure of which can result in the setting aside of the final award under Article 36 of the KAA. Similarly, the KCAB Rules stipulate that all arbitrators must be impartial and independent and remain so at all times (Article 10). The KCAB has also issued a Code of Ethics for Arbitrators that all arbitrators appointed
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