SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
companies’ involvement in international trans- actions and the general tendency of the South Korean courts to enforce arbitral awards. 12.2 ADR Within the Legal System The court tends to encourage resolving disputes which are brought to the court through judicial conciliation. This can be conducted by a judge presiding over the litigation, by a different judge (solely for the purpose of the conciliation), or by a conciliation committee comprising one judge and two or more private citizens. This is, how- ever, not compulsory and the parties are free to object to the recommendation of the court. There is also no particular sanction for the par- ties who do not wish to settle their dispute under an ADR mechanism. 12.3 ADR Institutions The Korean Commercial Arbitration Board is the primary institution in Korea for the provision of ADR services, and provides both mediation and arbitration services. The Korean courts also play a significant role in resolving disputes through judicial conciliation. Recently, the Korean courts have established mediation centres across Korea in order to assist the courts by handling mediation cases. 13. Arbitration 13.1 Laws Regarding the Conduct of Arbitration The primary source of law relating to arbitral pro- ceedings in Korea is the Arbitration Act of Korea (the “Korean 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 varia- tions. 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 initiative 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. 13.3 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 capacity 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);
1291 CHAMBERS.COM
Powered by FlippingBook