SOUTH KOREA Law and Practice Contributed by: Yun Jae Baek, Jeonghye Sophie Ahn, Hyunah Park and Seyoung Choe, Yulchon LLC
9. Confidentiality 9.1 Extent of Confidentiality
With respect to experts, Article 27 of the KAA allows the arbitral tribunal to appoint one or more experts for consultation on specific issues, unless agreed other - wise by the parties. In such cases, the arbitral tribunal may require a party to provide the expert with any relevant information or to produce – or provide access to – any relevant documents, goods or other articles for inspection. A challenge to the expert appointed by the arbitral tribunal can be made on the same grounds and through the same process as a challenge to the appointment of an arbitrator (Article 27 (3) of the KAA). 8.2 Rules of Evidence South Korea does not have specific rules of evidence that apply to arbitrations for either domestic or inter - national arbitrations. Rules of evidence in arbitration are generally determined in accordance with the rules under which the arbitration is being conducted, and at the discretion of the arbitral tribunal. The KAA pro - vides that the arbitral tribunal has the discretion to determine the admissibility, relevance, and weight of the evidence (Article 20 (2)). Although not automati - cally binding, the IBA Rules are commonly adopted in international arbitrations seated in South Korea. 8.3 Powers of Compulsion Article 28 of the KAA, as amended in 2016, provides that an arbitral tribunal may, either on its own initiative or at the request of a party, request the South Korean court to examine evidence or co-operate in examin - ing evidence. When an arbitral tribunal requests a court to direct - ly examine evidence, the arbitrators or the parties involved may attend the examination of evidence with the permission of the presiding judge (Article 28 (3) of the KAA). When a court is requested to co-operate in the examination of evidence, the court may order witnesses, holders of documents, or others (including non-parties to the arbitration) to make an appearance before the arbitral tribunal, or to submit the necessary documents to the arbitral tribunal (Article 28 (5) of the KAA).
The KAA does not contain any provisions relating to the confidentiality of arbitral proceedings. In addition, there is no South Korean court precedent addressing this issue. Thus, there is no automatic requirement of confidentiality in arbitrations seated in South Korea unless the parties agree otherwise – for instance, by entering into a separate confidentiality agreement or by adopting institutional rules that require confiden - tiality of arbitral proceedings. Despite the absence of a specific provision in the KAA, arbitral proceedings in South Korea have generally been treated in strict confidence. For its part, Article 57 of the KCAB Rules provides that the arbitral procedure and records are confidential and that the arbitral tribunal, the Secretariat, the parties, and their representatives and assistants are prohibited from disclosing facts related to the arbitration or facts learned through the arbitration, except where disclo - sure is consented to by the parties or required by law or court proceedings. Article 32 (1) of the KAA provides that the award shall be made in writing and signed by all the arbitrators. If a minority of the arbitral tribunal has any reason not to sign the award, the award shall become effective with the signature of the majority of the arbitrators and the reason for the failure or refusal to sign will be stated in the award. In accordance with Article 32 (2) of the KAA, the award shall state the reasons upon which it is based unless the parties have agreed otherwise or if the award is a consent award, which is an award on agreed terms of a settlement between the parties under Article 31 of the KAA. The award shall also state its date and place of arbitration (Article 32 (3) of the KAA). The KAA, however, does not specify any time limit for ren - dering the award. 10. The Award 10.1 Legal Requirements
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