SOUTH KOREA Law and Practice Contributed by: Yun Jae Baek, Jeonghye Sophie Ahn, Hyunah Park and Seyoung Choe, Yulchon LLC
or defence, all documents they consider to be relevant or which may indicate other evidence they will use in the documents. • Hearings (Article 25): Subject to any contrary agreement by the parties, the arbitral tribunal shall decide whether to hold oral hearings or to render an award solely based on written submissions and documents. • Failure of the Parties (Article 26): Subject to any contrary agreement by the parties, the arbitral tribunal shall terminate arbitral proceedings if the claimant fails to submit its statement of claim. If the respondent fails to submit its statement of defence, the arbitral tribunal shall continue the proceedings without treating such failure in itself as an admis - sion of the claimant’s allegations. 7.3 Powers and Duties of Arbitrators The KAA grants powers to an arbitral tribunal to: • decide on matters of its jurisdiction (Article 17 (1) of the KAA); • order interim relief (Article 18); • determine the admissibility and weight of the evi - dence (Article 20 (2)); • determine the seat and language of the arbitration in the absence of the parties’ agreement (Articles 21, 23); • decide on the allocation of the arbitration costs as well as the pre- and post-interest unless agreed otherwise by the parties (Article 34-2, 3); and • issue arbitral awards on the dispute referred to arbitration. Under the KAA, arbitrators are required to provide equal treatment to the parties during the proceedings and the parties must be allowed sufficient opportunity to argue their case (Article 19). Arbitrators are also required to disclose any circumstances that may raise doubts as to their fairness or independence (Article 13 (1)). 7.4 Legal Representatives The KAA does not prescribe particular qualifica - tions or other requirements for legal representatives appearing in arbitrations seated in South Korea. Thus, legal representatives appearing in arbitrations seated in South Korea are not required to be members of the
South Korean Bar. The Foreign Legal Consultant Act in South Korea clearly stipulates that a foreign legal consultant registered in South Korea and a foreign licensed lawyer can represent a party in an interna - tional arbitration. 8. Evidence 8.1 Collection and Submission of Evidence The KAA does not provide specific procedures for the collection and submission of evidence at the pleading or hearing stage. It does, however, provide that: • parties may submit evidence together with their written submissions (Article 24); • the arbitral tribunal should give sufficient advance notice to the parties of any oral hearing and of any meeting for the purpose of inspection of other evidence (Article 25 (2)); • all statements, documents or other materials sub - mitted by either party to the arbitral tribunal should be conveyed to the other party without delay (Arti - cle 25 (3)); and • any expert report or evidentiary document on which the arbitral tribunal intends to rely in making its decision should be conveyed to both parties (Article 25 (4)). Parties are free to agree on the scope and procedure for “discovery” during the arbitral proceedings. It is common practice in international arbitrations seated in South Korea or involving South Korean parties to include some form of document production. In such cases, the scope of document production would be much broader than the scope allowed in South Korean civil litigation proceedings. The International Bar Association Rules on the Taking of Evidence in International Commercial Arbitration (the “IBA Rules”), although not binding, are generally taken into account in international arbitrations seated in South Korea. It is also common for parties to arbitrations in South Korea to submit witness statements as part of the pleading stage. Parties may also appoint their own experts and submit expert reports, if necessary, dur - ing the pleading stage. These witnesses and experts may be cross-examined at the hearing.
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