SOUTH KOREA Law and Practice Contributed by: Eun Young Park, Zac Sharpe, Joon Won Lee and Yoo Lim Oh, Lee & Ko
contains decisions on matters beyond the scope of the submission to arbitration. • The composition of the tribunal or the arbitral pro - cedure was not in accordance with the agreement of the parties, unless that agreement conflicted with a mandatory provision of the KAA, or, failing such agreement, was not in accordance with the KAA. • The subject matter of the dispute is not capable of settlement by arbitration under the laws of Korea. • The recognition or enforcement of the award would violate the good morals and other forms of social order of Korea. An action to set aside an award must be brought within three months from the date on which the party seeking to set aside the award received an authentic copy of the award or, where applicable, an authentic copy of a correction, interpretation or additional award under Article 34. Such an action may not be brought after a Korean court’s decision recognising or enforc - ing the award has become final and binding. 11.2 Excluding/Expanding the Scope of Appeal Consistent with Article 34 of the UNCITRAL Model Law, Article 36 of the KAA sets out an exhaustive list of the grounds for setting aside an arbitral award. Accordingly, the parties may not, by agreement, add to or expand those statutory grounds, and any such agreement would have no effect. There is no reported Korean court decision addressing whether the parties
Article 39 (1) of the KAA provides that the recogni - tion and enforcement of foreign arbitral awards fall - ing within the scope of the New York Convention are governed by the Convention. The KAA does not reproduce its substantive provisions because, under Article 6 (1) of the Korean Constitution, treaties duly concluded and promulgated have the same effect as domestic legislation. 12.2 Enforcement Procedure Article 37 of the KAA sets out the general framework for the recognition and enforcement of arbitral awards. Article 38 governs awards rendered in Korea, while Article 39 governs foreign awards and provides that awards falling within the scope of the New York Con - vention are recognised and enforced in accordance with the Convention. In practice, the recognition and enforcement of domestic and foreign arbitral awards generally follow similar procedures and standards. The KAA does not prescribe a specific limitation peri - od for seeking recognition or enforcement of an arbi - tral award. This contrasts with the three-month time limit for setting aside an award under Article 36 (3). The commencement or pendency of setting-aside proceedings does not, in itself, constitute a ground for refusing recognition or enforcement. Accordingly, the court may proceed with enforcement proceed - ings independently of the setting-aside action and, if the requirements are satisfied, grant recognition and enforcement notwithstanding the pending challenge. In practice, however, Korean courts tend to adjourn their decision pending the outcome of the setting- aside proceedings. For a foreign arbitral award that has already been set aside at the seat of arbitration, there is no reported Korean case in which such an award was exception - ally recognised or enforced in Korea. The Korean Supreme Court has, however, recognised that a party that succeeds in annulment or suspension proceed - ings at the seat may rely on that decision as a ground for refusing recognition or enforcement under Article V(1)(e) of the New York Convention. Meanwhile, no reported Korean court decision appears to have addressed sovereign immunity spe -
may exclude any of those grounds. 11.3 Standard of Judicial Review
Korean courts do not review the merits of an arbitral award de novo. Judicial review is limited to determin - ing whether any of the grounds for setting aside under Article 36 of the KAA have been established.
12. Enforcement of an Award 12.1 New York Convention
Korea acceded to the New York Convention on 8 Feb - ruary 1973, subject to reciprocity and commercial res - ervations. The Convention entered into force in Korea on 9 May 1973.
918 CHAMBERS.COM
Powered by FlippingBook