SOUTH KOREA Law and Practice Contributed by: Jin Yeong Chung, Inhak Lee and Seung Hyeon Lee, Kim & Chang
• 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 con- templated by or subject to the arbitration agreement, or contains decisions on matters beyond the scope of the arbitration agree- ment, provided that if a portion of the arbitra- tion award that will be set aside in accord- ance with this provision can be separated from the remaining portion of the award, only the portion of the arbitration award violating this provision may be set aside; or • the composition of the arbitral tribunal or the procedure of arbitration were not in accord- ance with the agreement of the parties or the Korean Arbitration 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 Convention applies, recognition and enforce- ment of the foreign arbitral award shall be grant- ed in accordance with the Convention. Where it does not apply, foreign arbitral awards are reviewed in the same manner as foreign court judgments, pursuant to the relevant law. A Korean court will recognise and enforce a foreign award not subject to the New York Convention if: • the award is final and conclusive; • the jurisdiction of the arbitral tribunal is con- sistent with Korean law and treaties to which Korea is a party;
• the losing party received adequate notice of the arbitration and sufficient time to defend its case; • the award is not in conflict with the good morals or other public policy of Korea; and • the country in which the arbitral award was issued provides reciprocity to Korean judicial decisions and arbitral awards. Generally speaking, Korean courts are consid- ered to be friendly to arbitration. The Korean Supreme Court has ruled that, under the New York Convention, considerations of public policy must take into account not only Korea’s domes- tic situation, but also the need for foresight and stability in international business transactions. 14. Outlook 14.1 Proposals for Dispute Resolution Reform The Ministry of Trade, Industry and Energy (MOTIE) and the Korean Intellectual Prop- erty Office (KIPO) are reportedly preparing an amendment to the Patent Act to introduce a “discovery” system. Although the contents of the amendment to the Patent Act have not yet been disclosed, it’s been reported that the gist of the amendment would allow the court-designat- ed experts to collect evidence through on-site investigations. With respect to the potential ongoing impact of COVID-19, there have been instances where court hearings were postponed, but overall, it has not had much impact on the operation of courts and court hearings. The government has not passed any legislation or issued orders sus- pending the operation of limitation periods due to COVID-19.
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