SOUTH KOREA Law and Practice Contributed by: Junu Kim, Woojae Kim, Hangil Lee and Sarthak Malhotra, Bae, Kim & Lee LLC
cerns about regulatory discretion and political influ- ence in sensitive industries.
not fulfil its responsibilities, the court may appoint the arbitrator at the request of one of the parties. Similarly, if the parties have not agreed on any appointment procedure, the court may appoint the arbitrators to complete the tribunal. In line with international best practices, the court plays a supporting role: it does not select arbitrators on its own initiative and respects any valid agreement between the parties regarding qualifications or other criteria. Its power is therefore confined to ensuring that the tribunal is properly con- stituted, not to second-guessing the parties’ choices. A court’s decision on the appointment of arbitrator(s) is rendered in a single instance and is not subject to appeal. 4.4 Challenge and Removal of Arbitrators The Korean Arbitration Act (modelled on the UNCI- TRAL Model Law) contains provisions on the chal- lenge and removal of arbitrators. Under Article 13 (2), an arbitrator may be challenged if there are justifiable doubts as to their impartiality or independence, or if the arbitrator does not possess the qualifications agreed upon by the parties. A party that has appoint- ed, or participated in the appointment of, an arbitra- tor may challenge that arbitrator only on grounds that became known after the appointment. The parties are free to agree on a challenge proce- dure. In the absence of such an agreement, a party must submit its challenge within 15 days of becom- ing aware of the tribunal’s constitution or the circum- stances giving rise to the challenge (Article 14 (2)). If the challenged arbitrator does not withdraw and the other party does not agree, the tribunal decides on the challenge. If the challenge is rejected, the chal- lenging party may (within 30 days) request the court to decide the matter, and the court’s decision is final (Article 14 (3)–(4)). Separately, if an arbitrator becomes unable to perform their functions or fails to act without undue delay, they may be removed by agreement of the parties, or, fail- ing agreement, by court order (Article 15). 4.5 Arbitrator Requirements The requirements for arbitrator independence, impar- tiality and disclosure of potential conflicts of interest in Korea reflect international arbitral practice.
4. The Arbitral Tribunal 4.1 Limits on Selection
Under Korean law, party autonomy in the appoint- ment of arbitrators is broadly recognised, but sub- ject to certain mandatory safeguards. The Arbitration Act (modelled on the UNCITRAL Model Law) allows parties to agree freely on the appointment procedure and on the identity of arbitrators. Arbitrators must also be impartial and independent; any agreement that undermines the equal treatment of the parties is unlikely to be upheld. For example, granting one side exclusive appointment rights would not be upheld. If the agreed-upon appointment procedure fails or a party refuses to co-operate, the court may intervene to make the appointment. Nationality is not a statu- tory restriction unless the parties stipulate otherwise. In practice, therefore, while Korean law defers to the parties’ choices, this autonomy is constrained by prin- ciples of fairness, due process, and statutory require- ments designed to preserve the integrity of the arbitral process. 4.2 Default Procedures If the agreed procedure for appointing arbitrators fails for any reason, the Arbitration Act allows the compe- tent Korean court to make the appointment if a request is made. The Act does not include specific default rules for multi-party arbitrations; therefore, the general provisions for appointment apply in the same way. In practice, therefore, absent a tailored clause, each side of a multi-party dispute (claimants collectively on one side and respondents collectively on the other) would be expected to jointly designate their arbitrator, failing which the court may intervene. 4.3 Court Intervention Under the Korean Arbitration Act, the court can inter- vene in the appointment of arbitrators, but only in spe- cific situations. If the procedure the parties agreed upon for appointing arbitrators fails, such as when one party does not co-operate, the parties cannot agree on a sole arbitrator, or an appointing authority does
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