SOUTH KOREA Law and Practice Contributed by: Eun Young Park, Zac Sharpe, Joon Won Lee and Yoo Lim Oh, Lee & Ko
Although formally a partial amendment, the 2016 amendment was also significant because it addressed several practical issues in the operation of the KAA and incorporated key features of the 2006 amend - ments to the UNCITRAL Model Law. Among other things, the amendment: • expanded the scope of arbitrable disputes; • broadened the circumstances in which an arbitra - tion agreement is deemed to be in writing; • introduced express provisions on the allocation of arbitration costs and the award of interest; • simplified the documentary requirements for recog - nition and enforcement of awards; and • replaced the judgment procedure for recognition and enforcement with a decision procedure. The amendment also introduced a detailed statutory regime for interim measures through a new chapter of the KAA. Korea did not, however, adopt the prelimi - nary order mechanism found in the 2006 UNCITRAL Model Law. The KAA differs from the Model Law in two other ways. It contains no equivalent of Article 34 (4) of the Model Law, so a party cannot ask a Korean court hearing a set-aside application to suspend the proceedings and give the tribunal an opportunity to eliminate the grounds for setting aside. A further difference is that the KAA permits either party to seek court review of a tribunal’s preliminary ruling on its own jurisdiction, regardless of whether the tribunal rules that it has or lacks jurisdiction, whereas Article 16 (3) of the Model Law allows recourse only where the tribunal rules that it has jurisdiction. 2.2 Changes to National Law Amendments to the Court Organization Act, promul - gated on 17 March 2026, will establish Korea’s first specialised maritime and international commercial courts in Busan and Incheon with effect from 1 March 2028. The KAA was amended at the same time to accommodate the new courts. Where the dispute submitted to arbitration falls within their jurisdiction, and unless the parties have designated a different dis - trict court or branch court in their arbitration agree - ment, arbitration-related applications are to be made to the new courts rather than to the ordinary district
courts, whether for the appointment or challenge of an arbitrator, the setting aside of an award, or its recogni - tion and enforcement. The new courts’ jurisdiction covers maritime disputes and, separately, commercial disputes with a foreign element. The second category is defined broadly in the Court Organization Act, although its detailed scope will be further specified by Supreme Court rules that have yet to be issued. Parties entering into or performing contracts with a foreign element should monitor these developments closely. Under Korean law, an arbitration agreement must be an agreement between the parties to submit to arbitration all or certain disputes that have arisen or may arise between them in respect of a defined legal relationship. Article 8 of the KAA governs the formal validity of arbitration agreements. The KAA requires an arbitration agreement to be in writing, and an agreement that does not satisfy this requirement is invalid. The writing requirement, how - ever, is interpreted broadly. An arbitration agreement may be contained in a separate agreement or with - in the main contract and is deemed to be in writing where its terms are recorded, regardless of the form or means by which the agreement was made. 3. The Arbitration Agreement 3.1 Enforceability An arbitration agreement may also be established where one party alleges its existence in a statement of claim or defence and the other party does not dis - pute it. Further, where a contract refers to a document containing an arbitration clause, the reference consti - tutes an arbitration agreement if it makes that clause part of the contract. Accordingly, Korean law does not require an arbitration agreement to be set out in a separately signed document, provided that its terms are recorded and the parties’ agreement to arbitrate
can be established. 3.2 Arbitrability
Korean law does not expressly list all non-arbitrable matters; arbitrability is determined by interpreting the
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