SOUTH KOREA Law and Practice Contributed by: Eun Young Park, Zac Sharpe, Joon Won Lee and Yoo Lim Oh, Lee & Ko
agreement. Accordingly, a jurisdictional objection must generally be raised before the tribunal in the first instance, subject to court review as provided under Article 17 (6). 5.2 Circumstances for Court Intervention Court intervention in jurisdictional matters is available but limited. Under Article 17 (6) of the KAA, where the tribunal rules on its jurisdiction as a preliminary question, a party may request the competent court to review that ruling within 30 days of receiving notice. Following the 2016 KAA amendment, this mechanism applies not only to a positive ruling that the tribunal has jurisdiction, but also to a negative ruling that the tribunal lacks jurisdiction. While such court review is available, Korean courts generally take an arbitration- friendly approach and do not intervene unnecessarily in arbitral proceedings. During court review, the tri - bunal may continue the proceedings and render an award. Jurisdictional issues may also arise before the courts in other procedural contexts. For example, if a party commences court proceedings notwithstanding an arbitration agreement, the court may consider the existence, validity and scope of the arbitration agree - ment under Article 9 of the KAA. Jurisdiction may also be reviewed at the setting-aside or recognition and enforcement stages, particularly where a party argues that there was no valid arbitration agreement, that the tribunal exceeded the scope of its authority, or that the subject matter was not arbitrable. 5.3 Timing of Challenge A party wishing to challenge the tribunal’s jurisdiction must raise that objection before the tribunal no later than the submission of its statement of defence, under Article 17 (2) of the KAA. A party is not precluded from raising a jurisdictional objection merely because it participated in the appointment or constitution of the tribunal. However, if the objection is that the tribunal has exceeded the scope of its authority, the objec - tion must be raised promptly after the relevant issue arises. If the tribunal decides the jurisdictional objection as a preliminary matter, a party may seek court review within 30 days of receiving notice of that decision
under Article 17 (6). If the tribunal instead deals with jurisdiction together with the merits, the jurisdictional issue may be raised later in an application to set aside the award or in recognition or enforcement proceed - ings. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility Korean courts are generally understood to conduct a de novo review of jurisdictional issues. The court is not formally bound by the tribunal’s own determina - tion of jurisdiction. This applies to issues such as the existence and validity of the arbitration agreement, whether the dispute falls within the scope of the arbi - tration agreement, and whether the subject matter is arbitrable. However, the same approach does not necessarily apply to questions of admissibility or procedural man - agement. Such issues, including whether evidence is admissible, or whether a procedural step was timely, are generally left to the tribunal, unless they amount to a serious procedural defect or otherwise provide a ground for setting aside or refusing enforcement. 5.5 Breach of Arbitration Agreement Where a party commences court proceedings in breach of an arbitration agreement, the defendant may invoke the arbitration agreement under Article 9 (1) of the KAA. The defendant must do so before mak - ing submissions on the merits. If properly invoked, the court must dismiss the action unless it finds that the arbitration agreement is null and void, inoperative or incapable of being performed. In practice, Korean courts generally enforce valid arbi - tration agreements and, where the parties’ intention to arbitrate can reasonably be ascertained, are reluctant As a general rule, a tribunal may not assume jurisdic - tion over individuals or entities that are neither par - ties to the arbitration agreement nor otherwise legally bound by it. Korean law does not recognise a broad doctrine, such as the group of companies doctrine, under which an arbitration agreement may be extend - to allow court proceedings to continue. 5.6 Jurisdiction Over Third Parties
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