SOUTH KOREA Law and Practice Contributed by: Junu Kim, Woojae Kim, Hangil Lee and Sarthak Malhotra, Bae, Kim & Lee LLC
a written notice of intent at least 90 days prior to fil- ing a claim, outlining the basis of the claim and the relief sought. The claim may be submitted only after six months have elapsed since the events giving rise to it. Similarly, the Korea–Central America FTA (2019) provides that disputes must first be subject to con- sultations and negotiations. Arbitration may only be initiated once eight months have elapsed since the notice of dispute and at least 90 days have passed since the investor provided a written notice of intent to arbitrate. The Korea–China BIT (2007) takes a different approach. It provides that international arbitration may be initi- ated after four months from the date the dispute has been raised for consultation by either party. It also allows the host state to require investors to submit their dispute to any applicable domestic administra- tive review procedure. This requirement, however, is limited: such procedures cannot exceed four months, after which the investor is entitled to proceed to inter- national arbitration regardless of the outcome. In summary, advance notice, consultations, and cool- ing-off periods are standard features across Korea’s treaty network, and investors must comply with them before initiating arbitration. 7.2 Confidentiality and Transparency Many of Korea’s treaties align with international trends towards openness. The Korea–US FTA, for example, requires that hearings be open to the public, that key documents (such as pleadings, orders, and awards) be made publicly available, and that submissions from non-disputing parties may be accepted. These pro- visions mirror UNCITRAL’s Transparency Rules and ICSID’s evolving practice, and have been applied in Korea’s pending investor–state arbitrations. In prac- tice, this means that parties to investor–state disputes will typically be subject to treaty-based transparency obligations even though Korean domestic arbitration law would otherwise protect confidentiality. Where treaties are silent, investor-state tribunals seated in Korea may still draw on international prac- tices, such as the UNCITRAL Transparency Rules, the Mauritius Convention, and ICSID practice, to accept amicus submissions or permit the disclosure
of documents, particularly where disputes implicate significant public policy issues. Thus, in Korea, as elsewhere, confidentiality remains the baseline under arbitration law and institutional rules; however, treaty practice increasingly subjects investor–state disputes to transparency obligations, reflecting the public inter- est dimension. In practice, parties can strike this balance through three approaches. Deference to Treaty Obligations Where a treaty includes explicit transparency provi- sions, the parties should comply strictly, ensuring that hearings are open and documents are disclosed in line with the treaty text. Agreement on Supplementary Transparency Measures Even where the applicable treaty is silent, parties can adopt procedural orders drawing on the UNCITRAL Transparency Rules or past practice. This allows for the disclosure of awards, redacted pleadings, or the acceptance of non-disputing party submissions while still protecting confidential information. Use of Protective Orders To reconcile transparency with commercial sensitivi- ties, tribunals can adopt confidentiality protocols that safeguard trade secrets or sensitive state information while allowing public access to the broader record. This ensures that public accountability does not com- promise legitimate private interests. Korean law does not prescribe limits on the forms of relief that an arbitral tribunal may award. The Arbi- tration Act also contains no express restrictions on remedies, and the order of specific performance is not uncommon in commercial arbitrations seated in Korea. In investor–state arbitration, however, the scope of relief is determined by Korea’s treaty obliga- tions and international investment law. The principle of full reparation, along with the nature of the loss suffered, determines the remedies available. Although 8. Damages and Valuation 8.1 Remedies
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