SOUTH KOREA Law and Practice Contributed by: Yun Jae Baek, Jeonghye Sophie Ahn, Hyunah Park and Seyoung Choe, Yulchon LLC
Whether a claim is arbitrable or whether the claim falls within the scope of the arbitration agreement between parties is also reviewed de novo by the courts when there is any challenge to the arbitral award or award enforcement proceedings. However, South Korean courts will not review ques - tions about the nature of the claim and its admissibility in the arbitration (other than questions about arbitra - bility or scope of the arbitration agreement) or ques - tions about the admissibility of evidence, as these When a party commences court proceedings in breach of an arbitration agreement, the defendant may raise a defence based on the existence of an arbitration agreement and request the court to dismiss the lawsuit pursuant to Article 9 (1) of the KAA. This must be done before the first submission on the merits of the case is filed. Under Article 9 (1), a court must dismiss the legal action brought in violation of the arbitration agree - ment unless the court finds the arbitration agreement to be null and void, inoperable or incapable of being performed. matters concern the merits of the case. 5.6 Jurisdiction Over Third Parties The KAA allows the arbitral tribunal to award prelimi - nary or interim relief, as deemed necessary, at the request of either party. The 2016 amendments to the KAA incorporated more detailed provisions on the types of interim relief that an arbitral tribunal can order. Article 18 (2) of the KAA provides that an arbitral tribunal may order interim measures requiring either party to perform any of the following actions: • maintain or restore the status quo until an arbitral award is rendered on the merits of the case; • adopt measures to prevent an existing or imminent danger or impact to the arbitral proceeding itself, 6. Preliminary and Interim Relief 6.1 Types of Relief
or prohibit measures that are likely to endanger or impact the arbitral proceeding; • provide methods for preserving assets subject to the enforcement of an arbitral award; and • preserve evidence relevant and essential to the resolution of the dispute. An interim measure issued by an arbitral tribunal is binding and can be enforced upon application to the competent court if the arbitration is seated in South Korea (Article 18-7 of the KAA). 6.2 Role of Courts South Korean courts play two major roles in interim relief procedures in arbitration: • granting interim measures (Article 10 of the KAA); and • recognising and enforcing the interim measures issued by the arbitral tribunal (Article 18-7 of the KAA). First, in accordance with Article 10 of the KAA, the South Korean courts can issue interim measures upon a party’s request made before or during the arbitral proceedings. Although Article 10 is silent on the type of interim measures that the courts may grant, it is generally understood that they include provisional attachment or preliminary injunctions. The South Korean courts may issue interim measures regardless of the seat of arbitration (even when the seat is outside South Korea) or even when the seat of arbitration is yet to be determined (Article 2 (1) of the KAA). Second, in accordance with Article 18-7 of the KAA, the South Korean courts assist with the recognition and/or enforcement (eg, compulsory execution) of interim measures issued by the arbitral tribunal upon the request of the parties only if the arbitration is seat - ed in South Korea. Emergency Arbitrator In recent years, the notion of the “emergency arbi - trator” in the context of expedited proceedings for parties to obtain interim measures has gained much attention. To date, the KAA is silent as to the emer - gency arbitrator. However, the 2016 revisions to the KCAB Rules introduced proceedings for an emergen -
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