SOUTH KOREA Law and Practice Contributed by: Eun Young Park, Zac Sharpe, Joon Won Lee and Yoo Lim Oh, Lee & Ko
an interim measure to provide appropriate security. Under Article 18-7 (3), when a court is asked to rec - ognise or enforce an interim measure, it may require the applicant to provide security if the tribunal has not already required it or if necessary to protect the rights of third parties.
and given a full opportunity to present their case, is mandatory. In practice, whether the parties’ agreement or the conduct of the arbitral proceedings infringes these fundamental procedural rights is determined on a case-by-case basis. 7.3 Powers and Duties of Arbitrators The KAA grants broad procedural powers to tribu - nals while imposing fundamental duties to safeguard the fairness and integrity of the proceedings. These include: • Duty of Impartiality and Disclosure: Article 13 (1) requires a prospective or appointed arbitrator to disclose without delay any circumstances likely to give rise to justifiable doubts as to his/her impar - tiality or independence. • Duty to Ensure Due process: Throughout the pro - ceedings, the tribunal must treat the parties equally and give each party a full opportunity to present its case (Article 19). • Power to Rule on its Own Jurisdiction: Under the principle of competence-competence, the tribu - nal may rule on its own jurisdiction, including any objection concerning the existence or validity of the arbitration agreement (Article 17 (1)). • Power to Grant Interim Measures: Unless otherwise agreed by the parties, the tribunal may, at a party’s request, grant any interim measures it considers necessary (Article 18 (1)). It may also require the requesting party to provide appropriate security (Article 18-4). • Broad Discretion in Conducting the Proceedings: In the absence of party agreement, the tribunal has broad discretion to conduct the arbitration as it considers appropriate (Article 20 (2)). This discre - tion is subject to the mandatory requirements of Article 19. • Power to Determine Evidentiary Matters: The tribu - nal may determine the admissibility, relevance and weight of any evidence (Article 20 (2)). Where the 2026 KCAB Rules apply, Article 27.1 also permits the tribunal to order the parties to produce docu - ments or other evidence or make property, sites or objects available for inspection.
7. Procedure 7.1 Governing Rules
Article 20 of the KAA establishes a framework of procedural autonomy by giving priority to the par - ties’ agreement on procedural matters while, in the absence of such agreement, conferring broad discre - tion on the tribunal to determine the conduct of the proceedings. Under Article 20 (1), which is based on Article 19 of the UNCITRAL Model Law, the parties may freely agree on the procedure governing the arbitration, provided that their agreement does not contravene the mandatory provisions of the KAA. These include Article 19 of the KAA, which requires that the parties be treated equally and given a full opportunity to present their case. Consistent with the principle of party autonomy, the parties may agree on specific procedural arrange - ments or adopt a particular set of arbitration rules, which then form part of their agreement on the arbitral procedure. In the absence of such agreement, Article 20 (2) authorises the tribunal to conduct the arbitration in such a manner as it considers appropriate. 7.2 Procedural Steps The KAA does not prescribe a detailed set of manda - tory procedural steps applicable to every arbitration. Instead, consistent with the UNCITRAL Model Law, it grants the parties and the tribunal broad procedural autonomy, subject to certain mandatory procedural safeguards. The KAA does not exhaustively identify its mandatory provisions. It is, however, well established that Article 19, which requires the parties to be treated equally
914 CHAMBERS.COM
Powered by FlippingBook