1. Session 1: Arbitration/Alternative Dispute Resolution in Korea

2. Arbitration in Korea Basic arbitration framework Arbitration law
Arbitration rules
Some Procedural Issues
Recognition and Enforcement 2

3. I. Basic Arbitration Framework

4. The Development of Arbitration in Korea
Brief History
The Development of Arbitration in Korea ,
1966 Korean Arbitration Act is created
1966 Korean Arbitration Board (KCAB) is created + Rules promulgated
1999 Korean Arbitration Act is amended (1st time)
2004 Arbitration Rules are amended (1st time)
2007 International Arbitration Rules promulgated
2016 International Arbitration Rules are amended
2016 Korean Arbitration Act is amended (2nd time) 4

5. 2016 Korean Arbitration Industry Promotion Act
Future
2016 Korean Arbitration Industry Promotion Act
Promote use of arbitration / attract international arbitration to Korea
More planning / financial support for infrastructure & training, expertise, consolidation of facilities, autonomy of arbitral institutions
Passed, BUT still needs:
Enforcement Decree (draft by MoJ, to be signed by President)
Enforcement Regulations (to be issued by MoJ)
Additional budget allocation from Parliament 5

6. The Development of Arbitration in Korea
Future
The Development of Arbitration in Korea
Currently more than 100 events per year re international arbitration
Korea Council for International Arbitration (KOCIA)
KOCIA / KCAB / ICC International Conference
2013 – Seoul IDRC with Korean Bar / KOCIA / other support
More than 80 arbitration hearings since opening
Opening of International Offices by KCAB
Los Angeles
Shanghai
Increased focus on international promotion (eg. roadshows) in future 6

7. The Development of Arbitration in Korea
Future
The Development of Arbitration in Korea
KCAB Increase from 360 new cases in 2012 to 413 new cases in 2015
Average of 80 cases per year under KCAB International Arb Rules
Diverse nationalities – 27 different countries represented
A draw-back, ironically, is that the South Korean Courts are quite good: already highly efficient and cost effective 7

8. Future for International Disputes
International Arbitration in Korea
Top 5 countries (in order of ranking):
China
USA
Vietnam
Indonesia
Malaysia
Arbitrator Panel is truly international with more than 25 countries – top 5 countries (in order of number):
Korea
England
Germany 8

9. II. The Arbitration Law

10. The Basic Platform – Drawn from UNCITRAL !
Based on 1985 and 2006 UNCTIRAL Model Laws
South Korean Arbitration Act → both domestic + international arbitrations
2016 Amendments draw from 2006 UNCITRAL Model Law, EXCEPT:
Application not limited to international or commercial arbitrations
Can challenge appointment of expert by Tribunal
No provision for court to suspend annulment proceedings to allow Tribunal to resume proceedings or to eliminate grounds for annulment
Korean courts enforce only interim measures by Tribunal seated in Korea
No provision for preliminary orders (do not exist in South Korea) 10

11. The Basic Platform – Drawn from UNCITRAL !
Plus two other changes not related to UNCITRAL Model:
Court’s assistance to Tribunal in taking of evidence
Previously limited to court taking evidence and sending it to Tribunal
Or doing nothing while Tribunal tries to obtain evidence
NOW: Court can order witnesses to appear / document be submitted
Enforcement of award through court decision / order, not judgement
More expeditious
BUT awards still set aside only by judgement (not as easily as order) 11

12. OTHER IMPORTANT ASPECTS OF ACT
NO Limit to arbitrability of disputes
Previously = disputes in private law / NOW disputes resolvable through settlement
May be able to arbitrate IP, Insolvency, Anti-Trust
Jurisdictional Issues
If litigation brought in breach of clause, court must dismiss if request before 1st hrg
Korean Courts have never issued anti-suit injunction to overseas proceedings
Kompetenz-Kompetenz = Can rule preliminarily or as part of award on merits
Review by Court if request within 30 days of notice of ruling
Court can review ruling even if Tribunal decides it lacks jurisdiction
Written agreements only, unless can confirm later through a writing
Enforceable regardless of whether arbitration clause or separate K
Unilateral or optional clauses unenforceable, unless waiver 12

13. III. The Arbitration Rules

14. Default Rules
Act allows party autonomy, but gives Tribunal following authority as default:
Determine own jurisdiction
Order interim measures, unless otherwise agreed by parties
Determine place / language, unless otherwise agreed
Determine admissibility, relevance, weight of evidence, unless otherwise agreed
Set time limits for submissions, unless otherwise agreed
Decide whether to hold oral hearings, unless otherwise agreed
Decide whether to terminate proceedings on default of party
Appoint expert(s) to consult on specific issues, unless otherwise agreed
Decide whether to request court assistance with examination of evidence 14

15. KCAB International Rules
International Rules were amended in 2016
Most important amendments:
Emergency arbitrator
Conservatory or interim measures, but only before Tribunal constituted
Joinder
If 3rd party and all other parties agree: more efficient / uniform / cheaper (Act silent re joinder + no decisions re corporate veil)
Consolidation
No Tribunal yet, separate / pending arbitration between same parties
Expedited procedure
Parties agree or claims are / remain not greater than KRW 500,000,000
Document hearing + expedited award (within 6 months of Tribunal) 15

16. NEW KCAB Code of Ethics for Arbitrators
Other Rules
NEW KCAB Code of Ethics for Arbitrators
Ensures Impartiality and Independence of Arbitrators
Must be able to serve impartially, independently, have suitable experience and competence, time and attention that Parties reasonably can expect
Fair and even-handed manner to both parties, not influenced by factors other than the merits of the case
Avoid making statements or acting in a manner that may create the appearance of affecting his impartiality or independence
Must disclose all facts / circumstances giving rise to any doubt as to impartiality or independence in the eyes of the parties
Limits on communications with Parties, including when Party appointed
Duty of Confidetiality 16

17. IV. Some Procedural Issues in Proceedings

18. Party Autonomy ! Evidence / Disclosure Confidentiality
No limit on Arbitrator’s authority to compel under Act → agreement
Civil Procedure Act limited, so Korean parties do not expect it
Courts may intervene / assist
International: usually rely on IBA Rules on Taking Evidence / Redfern
Confidentiality
If parties enter NDA
If parties agree in arbitration agreement
If parties select institution that has rules for it (e.g. KCAB International Rules)
Court Intervention (Limited)
Recognize / enforce interim measures + order security by requesting party
Can assist with selection of Tribunal, but once constituted, Tribunal takes over 18

19. V. Recognition and Enforcement

20. Right of Appeal / Challenge
No right to appeal awards in Korean courts:
Seoul High Court has invalidated an agreement providing right of appeal
Parties can only challenge by applying for annulment on limited grounds
International awards → must be challenged within 3 months of receipt, before recognition rendered by the court 20

21. Enforcement Korean awards Foreign awards
Courts seldom refuse / only limited grounds under the Act
Foreign awards
From NY Convention country → enforce (commercial matters) per Convention, but may refuse if set aside by foreign court (unless unreasonably set aside)
Non- NY Convention country → can still enforce per the Act, according to Civil Procedure Act and Civil Execution Act (as if foreign judgement)
Time for Enforcement Proceedings
Before Amendments, 6-12 months to get jmnt / now (with order) expected less 21

22. Andrew White Bio Andrew White
Senior Foreign Counsel
Tel:
Andrew White
Andrew White is a Senior Foreign Counsel at Yulchon LLC. His practice focuses on international disputes and commercial transactions involving business and investment interests in Korea, Indonesia, Singapore, the United States, and the Middle East. Immediately prior to joining Yulchon, he was head of a practice group for London-based DAC Beachcroft, with a particular focus on cross-border finance/investment and insurance matters involving parties and investments in London, the Middle East, Singapore and Malaysia. From , he also was a law professor in Singapore, as well as a visiting professor in Gadjah Mada University, Universitas Islam Indonesia and other universities in the US and Asia, where he has lectured and conducted workshops in various banking/finance and international commercial arbitration/mediation courses.
Beginning in the early 1980s, he specialized his law practice in construction transactions and arbitration, and he was a co- author of a leading American treatise and digest of construction and design law. In more recent years, Mr. White broadened his expertise to include commercial interests between the US, Asia and the Middle East, including Islamic law, finance, and insurance (takāful).
Mr. White is a Fellow of the Singapore Institute of Arbitrators (SIArb), and he also holds an appointment to the International Chamber of Commerce (ICC-Paris) Task Force on Financial Institutions and International Arbitration. As a professional arbitrator, he has arbitrated extensively through the American Arbitration Association, and holds an appointment to the Singapore International Arbitration Centre Panel of Arbitrators, as well as the Kuala Lumpur Regional Centre for Arbitration. Mr. White was formerly an Adjudicator in Singapore’s Financial Industry Disputes Resolution Centre (FIDReC). He also was trained in the US as a Court-Certified Mediator in 1992 and was certified by the North Carolina Dispute Resolution Commission (Administrative Office of the Courts) as a mediator in the Mediated Settlement Conference Program of the State Courts. 22

23. Q&A Thank you Andrew White Tel: 02-528-5986 E-mail: awhite@yulchon.com
Textile Center 12F, 518 Teheran-ro, Daechi-dong, Gangnam-gu, Seoul , Korea
Tel:
Fax: