SOUTH KOREA Law and Practice Contributed by: Junu Kim, Woojae Kim, Hangil Lee and Sarthak Malhotra, Bae, Kim & Lee LLC
Under Korean law, arbitrators are subject to strict standards of independence and impartiality. The Arbitration Act provides that an arbitrator may be challenged if circumstances exist that give rise to “justifiable doubts as to his or her impartiality or inde- pendence” (Article 13). The law does not specify what circumstances qualify, but it requires challenges to be raised promptly (within 15 days of learning of the grounds). Arbitrators must disclose any such circum- stances without delay from the time of appointment and throughout the proceedings (Article 14). The KCAB International Arbitration Rules (Article 10) and the KCAB Domestic Arbitration Rules (Article 18) stipulate that arbitrators must be impartial and independent, and they must submit a Statement of Acceptance and a Statement of Impartiality and Inde- pendence upon accepting their appointment. In addi- tion, the KCAB Code of Ethics for Arbitrators (2016) provides detailed guidance, identifying specific situ- ations in which impartiality or independence may be questioned. Korean courts apply an objective “justifiable doubts” standard when assessing an arbitrator’s independ- ence and impartiality. Beyond national law and institu- tional rules, the IBA Guidelines on Conflicts of Interest are widely referenced in international cases seated in Korea, although no Korean court has yet expressly applied them. Under the Arbitration Act (Article 18), a tribunal locat- ed in Korea may grant interim measures, which are binding on the parties involved and are not merely recommendations. The law identifies four categories of relief: • measures to preserve assets to ensure satisfaction of a future award; • measures to prevent imminent or irreparable harm or to maintain the status quo; • measures to preserve assets subject to the execu- tion of an award; and 5. Preliminary and Interim Relief 5.1 Types of Relief
• measures to preserve evidence relevant and mate- rial to the resolution of the dispute. The tribunal may also require the applicant to pro- vide security as a condition of the relief (Article 18-5). Enforcement may be sought before Korean courts, which are expressly empowered to recognise and enforce tribunal-ordered interim measures (Article 18-9). 5.2 Role of Domestic Courts Domestic courts in Korea play a complementary role in relation to interim relief granted in investor–state arbitration. Under the Arbitration Act, they may order interim measures either before the commencement of or during arbitral proceedings (Article 10). In addition, where an arbitral tribunal seated in Korea grants any interim measures, a party may petition a Korean court either to recognise the measure or to authorise its compulsory execution (Article 18-7 (1)). The court may, if necessary, require the applicant to provide security (Article 18-7 (3)) and will apply the provisions on preservative measures in the Civil Exe- cution Act mutatis mutandis to execution (Article 18-7 (4)). Recognition or enforcement may be refused only on narrow grounds, including absence of required security, termination or suspension of the measure, or conflict with public policy (Article 18-8). Importantly, courts may not review the substance of the tribunal’s reasoning (Article 18-8 (2)). The role of Korean courts is therefore supportive: they ensure that interim relief ordered by a tribunal seated in Korea can be made effective, while retaining dis- cretion to impose conditions to protect third-party rights. However, the Arbitration Act limits enforcement to measures issued in arbitrations seated in Korea (Articles 2 (1), 18-7 (4)). Interim measures issued by tribunals seated abroad are not enforceable in Korea under the Act. At the same time, Korean courts remain competent to grant conservatory measures directly under the Civil Execution Act, independently of arbitral proceedings.
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