SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
13.3 Circumstances to Challenge an Arbitral Award Pursuant to Article 36 of the Korean Arbitration Act, recourse against an arbitral award may be made only by an application to a court to set aside the award. Any such application must be made within three months of the date on which the party making such an application received a duly authenticated copy of the initial award. An arbitral award may be set aside by the court only if the party making the application provides proof that: • a party to the arbitration agreement lacked capac- ity under the law applicable to such party, or the arbitration agreement is not valid under the law selected by the parties to govern the agreement (or, failing any such indication, under Korean law); • the party making the application was not given proper notice of the appointment of the arbitrators or of the arbitral proceedings, or was otherwise unable to present its case; • the award deals with a dispute not contemplated by or subject to the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agreement, provided that if a por- tion of the arbitration award that will be set aside in accordance with this provision can be separated from the remaining portion of the award, only the portion of the arbitration award violating this provi- sion may be set aside; or • the composition of the arbitral tribunal or the pro- cedure of arbitration were not in accordance with the agreement of the parties or the Korean Arbitra- tion Act. 13.4 Procedure for Enforcing Domestic and Foreign Arbitration A party may apply to the court for recognition and enforcement of the arbitration award. The party must submit a copy of the arbitral award. If the award is in a foreign language, there needs to be an accompanying Korean translation. Under Article 39 of the Act, where the New York Con- vention applies, recognition and enforcement of the foreign arbitral award shall be granted in accordance with the Convention.
citizens. This is, however, not compulsory and the parties are free to object to the recommendation of the court. There is also no particular sanction for the parties who do not wish to settle their dispute under an ADR mechanism. 12.3 ADR Institutions The Korean Commercial Arbitration Board is the pri- mary institution in Korea for the provision of ADR ser- vices, and provides both mediation and arbitration services. The Korean courts also play a significant role in resolv- ing disputes through judicial conciliation. Recently, the Korean courts have established mediation centres across Korea in order to assist the courts by handling mediation cases. The primary source of law relating to arbitral proceed- ings in Korea is the Arbitration Act of Korea (the “Kore- an Arbitration Act”), which is based on the UNCITRAL Model Law on International Commercial Arbitration (the “UNCITRAL Model Law”). The most recent major revisions to the Korean Arbitration Act were made in May 2016, primarily adopting the 2006 amendments of the 2006 UNCITRAL Model Law, with some vari- ations. One of the key features of this bill is that the provisions empower and enable the arbitral tribunal to issue a wide array of interim measures enforceable by court decisions. 13.2 Subject Matters Not Referred to Arbitration Under Article 3 of the Korean Arbitration Act, only the disputes on property rights and those on non-property rights which the parties may resolve through private settlement may be the subject of arbitration. Pursuant to Article 36 of the Korean Arbitration Act, the court may set aside the award if it finds on its own initia- tive that the subject matter of the dispute cannot be subject to arbitration under Korean law, or that the recognition and enforcement of the award is in conflict with the good morals or other public policy of Korea. 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration
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