SOUTH KOREA Law and Practice Contributed by: Eun Young Park, Zac Sharpe, Joon Won Lee and Yoo Lim Oh, Lee & Ko
ceedings unless the clause and the parties’ conduct show a sufficiently clear agreement to arbitrate. Case law suggests that such a clause may be treated as effective only where one party elects arbitration and the other party participates in the arbitral proceedings without objection. Conversely, where the other party objects to arbitration in a timely manner, the clause may not be treated as a binding arbitration agreement (see, eg, Supreme Court Judgment No 2003Da318 dated 22 August 2003; Supreme Court Judgment No 2004Da42166 dated 11 November 2004). 3.4 Validity Article 17 (1) of the KAA expressly recognises the doc - trine of separability. An arbitration clause forming part of a contract is treated as an agreement independent of the other clauses of that contract, and an arbitral tribunal may rule on its own jurisdiction, including any objection to the existence or validity of the arbitra - tion agreement. Accordingly, even where the valid - ity, termination or non-existence of the main contract is in dispute, the arbitration clause may remain valid and effective, and the dispute may therefore still be resolved by arbitration. There are no specific statutory qualifications for arbi - trators under the KAA. Parties are free to agree on the number of arbitrators and on the procedure for appointing them, and no person may be precluded from acting as an arbitrator by reason of nationality unless the parties have agreed otherwise. Party autonomy may, however, be qualified by the arbitration rules the parties have chosen. For exam - ple, the 2026 KCAB Rules require, in principle, that the sole or presiding arbitrator does not have the same nationality as any party in a case where the KCAB is to appoint an arbitrator and the parties are of different nationalities. Also, under the same Rules, where the arbitration agreement was entered into on or after 1 January 2026 and the Expedited Procedure applies, a sole arbitrator must be appointed. The parties may nevertheless agree to opt out of that procedure. In fast-track proceedings, a sole arbitrator is generally 4. The Arbitral Tribunal 4.1 Limits on Selection
appointed, although the KCAB International Arbi - tration Court may refer the case to three arbitrators where the arbitration agreement so provides and the Court considers a three-member tribunal appropriate. 4.2 Default Procedures The parties’ agreed procedure for selecting arbitra - tors, including any procedure provided for in their cho - sen institutional rules, applies first. If the parties have not agreed on an appointment procedure, Article 12 (3) of the KAA applies. If an agreed procedure fails, Article 12 (4) permits a party to request the court or an arbitral institution designated by the court to make the necessary appointment. In the case of a sole arbitrator, if the parties fail to agree on the appointment within 30 days after receiv - ing a request from the other party, the arbitrator may be appointed, upon a party’s request, by the court or by an arbitral institution designated by the court. In the case of a three-member tribunal, each party appoints one arbitrator, and the two party-appointed arbitrators appoint the third arbitrator. If a party fails to appoint an arbitrator within 30 days after receiving a request to do so, or if the two arbitrators fail to agree on the third arbitrator within 30 days of their appointment, the appointment may likewise be made by the court or by an arbitral institution designated by the court upon a party’s request. The Korean Supreme Court has taken a relatively sup - portive approach to court assistance in the appoint - ment of arbitrators. In a 2022 decision, the Supreme Court held that, where an application for the appoint - ment of an arbitrator is made, the court should pro - ceed directly to appoint an arbitrator, unless there are special circumstances (see Supreme Court Decision No 2020Geu633 dated 29 December 2022). Such cir - cumstances may include cases where the arbitration agreement clearly fails to satisfy the formal require - ments under Article 8 of the KAA, or where the agreed appointment procedure under Article 12 (2) has not been followed before the application is made. The KAA currently does not provide a separate default appointment mechanism specifically for multiparty arbitrations. Accordingly, in multiparty cases, the appointment procedure will generally depend on the
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