SOUTH KOREA Law and Practice Contributed by: Dongju Kwon, Changkwon Kim, Sejung Lee and Yoon Sun Kim, Yoon & Yang LLC
10. Alternative Dispute Resolution 10.1 Dispute Resolution Mechanisms Alternative dispute resolution (ADR) mecha - nisms include settlement, mediation and arbi - tration procedures. Settlement Settlement procedures include court-led settle - ments and out-of-court settlements. In an out- of-court settlement, parties sign a settlement agreement to make mutual concessions and to end the dispute. The content and method of settlement agreement follows the principles of contractual freedom and is not subject to any limits. However, a court-led settlement is under the court’s supervision and carries the effect of a final judgment, unlike an out-of-court settle - ment. Mediation Mediation refers to the process by which a judge or mediator intervenes between disputed par - ties to prepare a forum for dialogue and com - promise, and, ultimately, for settlement. Once the mediation is established and the mediation protocol is prepared, this would carry the same effect as a court-led settlement. Arbitration Arbitration refers to the process whereby the appointed arbitrator resolves the dispute by an arbitral award, based on the parties’ agreement. Under the Arbitration Act, the arbitral award has the same effect as a court’s final judgment (Article 35). However, the arbitral award may be enforced only by the court’s decision to enforce it upon the request of the parties (Article 37).
Carrying Out Proceedings Contrary to judicial proceedings, ADR proceed - ings are not open to the public. Thus, the risk of losing the secrecy of the parties’ trade secrets may be reduced. Aside from this, however, it is difficult to find any particular advantages or dis - advantages to using ADR in trade secret cases relative to other cases. Under the Arbitration Act, a party to an arbitra - tion agreement may request interim measures of protection from a court, before the commence - ment or during arbitral proceedings (Article 10). In addition, unless otherwise agreed by the par - ties, the arbitral tribunal may grant interim meas - ures as found necessary at a party’s request, whereby the tribunal orders a party to perform any of the following (Article 18): • to maintain or restore the status quo pending determination of the dispute; • to take action that would prevent current or imminent harm or prejudice to the arbitral proceeding, or to prohibit action that may cause such harm or prejudice; • to provide a means of preserving assets sub - ject to the execution of an arbitral award; or • to preserve evidence that may be relevant and material to the dispute resolution.
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