SOUTH KOREA Law and Practice Contributed by: Choon Won Lee and Dahee Kim, Jipyong LLC
watch over the vessel during the ship arrest on the applicant/creditor’s behalf. 4.6 Arresting Bunkers and Freight As briefly mentioned in 4.1 Ship Arrests , gen - erally speaking, under South Korean law, three types of attachment of property are available: • a pre-judgment attachment; • an attachment based on a security right such as a mortgage, pledge or lien; and • an attachment for enforcement of a claim under the judgment or arbitration award. As for the arrest/attachment of bunkers, tech - nically speaking, it might be possible to arrest bunkers upon the satisfaction of the require - ments for the relevant type of attachment. That said, however, in practice the arrest of bunkers aboard a ship is not allowed. The court’s position seems to be that the arrest of bunkers aboard a ship essentially has the same effect as the arrest of the ship itself, which goes beyond the applicant/creditor’s entitlement. Thus, bunkers that have been discharged from the vessels can be arrested on their own, but the South Korean court will not allow the arrest of bunkers aboard a ship. As for the arrest/attachment of freight, it would be possible to attach freight, in other words, the debtor/respondent’s claim against another third party (such as a subcharterer), upon the satis - faction of the requirements for the relevant type of attachment. In this case, with regard to an attachment based on a security right such as a mortgage, pledge or lien, it may be noted that South Korean law does not recognise the effect of a contractual lien, at least against another third party (such as a subcharterer) who has not agreed to that contractual lien. Therefore, subject to the applicable governing law, if South
Korean law should apply, the effect of a contrac - tual subfreight lien will not be recognised, and an attachment of freight based on a contractual
lien would not be available. 4.7 Sister-Ship Arrest
Ship arrest would be possible upon satisfac - tion of the requirements for the relevant type of arrest, and, generally speaking, sister-ship arrest would not be possible in South Korea. The only possibility would be a pre-judgment attachment of the ship by piercing the corpo - rate veil between the debtor against whom the applicant/creditor holds the claim and the ship- owner. The South Korean courts may acknowl - edge and allow the piercing of the corporate veil between two companies where a company is found to be practically the same as the other company, or where a company is found to be only a façade or sham for the purpose of avoid - ing liability by the other company. However, it should be noted that the South Korean courts will apply strict standards in acknowledging and allowing the piercing of the corporate veil between two separate and different companies, and thus a pre-judgment attachment of the sister ship by piercing the corporate veil would seldom be possible. 4.8 Other Ways of Obtaining Attachment Orders As discussed in 4.1 Ship Arrests , under South Korean law, three types of attachment of proper - ty are available. In so far as the requirements for the relevant type of attachment are satisfied, the applicant/creditor may attach the property of the debtor/respondent in order to obtain security. 4.9 Releasing an Arrested Vessel The debtor/respondent may release an arrested vessel by:
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