SOUTH KOREA Law and Practice Contributed by: Yun Jae Baek, Jeonghye Sophie Ahn, Hyunah Park and Seyoung Choe, Yulchon LLC
cy arbitrator in Appendix 3 of the KCAB Rules, under which a party may seek interim measures through an emergency arbitrator before the constitution of the arbitral tribunal. Once appointed, emergency arbitrators must make a decision within 15 days of their appointment (Article 3 (4) of Appendix 3 of the KCAB Rules). The types of relief that can be granted by an emer - gency arbitrator are the same as the types of relief that an arbitral tribunal may grant under Article 18 of the KAA (Article 32 of the KCAB Rules). The parties are bound by the decision of the emergency arbitrator until the main arbitral tribunal – once constituted – modifies, suspends, or terminates such decision. The decision of the emergency arbitrator is not binding on the arbitral tribunal (Article 4 of Appendix 3 of the KCAB Rules). The power of the emergency arbitrator shall be terminated upon the constitution of the arbi - tral tribunal (Article 3 (7) of Appendix 3 of the KCAB Rules). 6.3 Security for Costs Courts and arbitral tribunals are both authorised to order security for costs with respect to the parties’ requests to obtain, recognise or enforce interim meas - ures under the KAA. Under Article 18-4 of the KAA, an arbitral tribunal may order the party requesting interim measures to pro - vide security. Similarly, if deemed necessary, South Korean courts are empowered under Article 18-7 (3) of the KAA to order security against the party request - ing recognition or enforcement of interim measures when the arbitral tribunal has not ordered to provide security, or when there is a risk of infringing the rights of a third party.
arbitration. Parties are free to agree on the specific procedures for the arbitration, and the KAA operates as a default rule where there is no agreement between the parties. Article 20 (1) of the KAA states that the parties can agree on the arbitration procedures except for the mandatory provisions under the KAA. Where parties fail to agree on certain procedural terms (eg, place of arbitration, language to govern arbitra - tion), arbitral tribunals have wide discretion to deter - mine how the arbitration should proceed under Article 20 (2) of the KAA. In tandem with the parties’ agreement and arbitra - tors’ discretion, the KAA also provides applicable pro - cedural rules. There are mandatory procedural rules in the KAA to ensure that arbitrations conducted in South Korea comply with notions of fair and due pro - cess, such as Article 19 of the KAA stipulating that all parties receive equal treatment during the proceed - ings and are given a full opportunity to present their cases. 7.2 Procedural Steps In line with the principle that arbitration is a creature of “consent”, procedural steps are generally imple - mented by the agreement of the parties or rules of the arbitral institution chosen by the parties. In the absence of such an agreement, the KAA pro - vides for a general arbitration process for an arbitra - tion seated in South Korea as per the following. • Commencement of Arbitration (Article 22): Arbi - tral proceedings shall commence on the date the respondent receives the request for arbitration. • Language (Article 23): The language of the arbitra - tion will be determined by the parties’ agreement and, in absence of such agreement, by the arbi - tral tribunal. If the arbitral tribunal does not make the determination, the default language shall be Korean. • Submissions (Article 24): The parties shall sub - mit their respective written submissions, laying out their claims and defences to the other party’s claims within the timeframe agreed by the par - ties or decided by the arbitral tribunal. The parties may submit, along with their statements of claim
7. Procedure 7.1 Governing Rules
Generally, parties are free to choose their own proce - dural rules either by agreement or by the rules of the chosen arbitral institution. In principle, the agreement between the parties shall prevail over default provi - sions and be recognised as the dominant rules of the
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