SOUTH KOREA Law and Practice Contributed by: Eun Young Park, Zac Sharpe, Joon Won Lee and Yoo Lim Oh, Lee & Ko
parties’ agreement and, where institutional arbitration rules apply, the relevant rules of the chosen arbitral institution. 4.3 Court Intervention Korean courts may intervene in the selection of arbi - trators, but only in limited circumstances. As noted above, where the parties have not agreed on an appointment procedure and an appointment is not made within the prescribed period, Article 12 (3) of the KAA permits the court, or an arbitral institution desig - nated by the court, to make the appointment. Where the parties have agreed on an appointment procedure, Article 12 (4) permits the same intervention if a party fails to appoint an arbitrator under that procedure, if the parties or two arbitrators fail to make an appoint - ment under that procedure, or if an institution or other appointing authority entrusted with the appointment fails to do so. The court’s role is therefore limited to ensuring that the arbitral tribunal can be constituted where the applicable appointment mechanism does not result in an appointment. The court does not have the gen - eral power to disregard the parties’ agreement or to appoint arbitrators simply because one party is dissat - isfied with the agreed procedure. Further, under Article 12 (5) of the KAA, no appeal may be made against a decision of the court or the court-designated arbitral institution appointing an arbitrator under Article 12 (3) or 12 (4). Korean courts may also become involved in challenges to arbitrators, as further discussed below. 4.4 Challenge and Removal of Arbitrators Under Article 13 (2) of the KAA, an arbitrator may be challenged if circumstances exist that give rise to justifiable doubts as to the arbitrator’s impartiality or independence, or if the arbitrator does not possess the qualifications agreed by the parties. The parties may agree on a procedure for challenging an arbitrator under Article 14 (1). Failing such agreement, Article 14 (2) provides that the challenging party must submit a written statement of the grounds for challenge to the tribunal within 15 days from the constitution of the tribunal or from becoming aware of the grounds for challenge. If the challenged arbitrator does not resign and the other party does not agree to the challenge, the tribunal decides the challenge.
Under Article 14 (3) of the KAA, if a challenge under the agreed or statutory procedure is unsuccessful, the challenging party may request the court to decide on the challenge within 30 days of receiving notice of the decision rejecting the challenge. The arbitral tribunal may continue the proceedings and render an award while the court application is pending. The court’s decision is not subject to appeal. Separately, under Article 15, an arbitrator’s mandate may be terminated if the arbitrator becomes legally or factually unable to perform their functions or oth - erwise fails to act without undue delay. If a dispute arises over the termination of the mandate, either party may request the court to decide the matter, and the court’s decision is not subject to appeal. 4.5 Arbitrator Requirements The KAA requires arbitrators to be impartial and inde - pendent. Under Article 13 (1) of the KAA, a prospec - tive or appointed arbitrator must disclose without delay any circumstances likely to give rise to justifi - able doubts as to his/her impartiality or independence. Such circumstances also constitute grounds for chal - lenge under Article 13 (2). Although the KAA does not define them exhaustively, relevant factors may include a financial, professional or personal relationship with a party, an interest in the outcome of the dispute, prior involvement in the dispute, or other circumstances suggesting a conflict of interest. The KCAB Rules contain similar requirements. Under Article 10, arbitrators must remain impartial and inde - pendent, and prospective arbitrators are required to disclose any circumstances that may give rise to rea - sonable doubts as to their impartiality or independ - ence. Arbitrators in KCAB-administered cases must also comply with the KCAB Code of Ethics for Arbi - trators.
5. Jurisdiction 5.1 Challenges to Jurisdiction
Korea recognises the principle of competence-com - petence. Under Article 17 (1) of the KAA, a tribunal may rule on its own jurisdiction, including objections concerning the existence or validity of the arbitration
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