Arbitration is an alternative form of dispute resolution that parties can choose instead of litigating a dispute in public courts. In arbitration, parties present their arguments and evidence to one or more arbitrators, who are private individuals appointed on a case-by-case basis. The arbitrator or arbitrators then consider the arguments and evidence and make a final decision that is binding on the parties.

Litigation and arbitration are both adversarial dispute resolution processes with a binding decision. But there are differences. Litigation takes place in public courts, whereas international arbitration is a private mode of settling disputes by party agreement. Another key distinction is in enforcement powers. A state court holds the power to directly enforce its own orders, which arbitrators do not have. However, under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention), awards issued by arbitrators can be enforced through the state courts of most countries, making enforcement of arbitral awards in other countries even easier than state court judgments. This international enforcement scheme makes arbitration an attractive option for resolving cross-border disputes.

Arbitration is an adversarial dispute resolution process, akin to litigation, with a binding result issued by impartial arbitrator(s), while mediation is a non-binding process in which a mediator attempts to help the parties reach a mutually agreed settlement.

Arbitration is inherently limited to parties who have agreed to it. As a result, it can be difficult or impossible to involve third parties who may be important to the dispute. A second inherent limitation in arbitration is the lack of direct enforcement power that a court has. However, final awards are generally enforceable in court under the New York Convention and other treaties. Further, parties usually comply voluntarily with orders from the arbitral tribunal in order to avoid upsetting the tribunal. 

A number of other features of arbitration might be considered advantages or disadvantages depending on one’s perspective, or the circumstances of a given case. For instance, rules and procedures for taking and presenting evidence are not fixed but are generally determined by party agreement or by order of the arbitral tribunal. This flexibility is often considered a positive feature, but the quality of that process is dependent on the quality of the arbitrator which introduces a certain amount of unpredictability. In addition, there is no opportunity to appeal an adverse decision in arbitration as there usually is in litigation, although parties can seek to annul or set aside an award on limited grounds. Again, this may be considered a disadvantage by some, but many view this positively as it provides more certainty and can shorten the time required to finally resolve a dispute. One disadvantage that the arbitration system continues to struggle with, however, is its inability to handle third parties who may be non-signatories to the arbitration agreement. Adding third parties to arbitral proceedings may prove problematic for an Arbitral Tribunal, in addition to its lack of coercive powers to compel non-signatories to do or not to do something.

Arbitration has three principle advantages: flexibility, neutrality, and enforceability. Arbitration has the flexibility to allow freedom of choice in the place of arbitration, the arbitrator, the procedural and evidentiary rules, the schedule, and other factors, case by case. Neutrality means that parties need not depend on the courts and judges of either party’s state, but can instead choose a place and a tribunal to resolve their dispute that is neutral to both (or all) parties involved. One of the greatest benefits of arbitration is the relative ease of enforcing arbitral awards internationally, thanks to the enforcement scheme established under the New York Convention.

The length and cost of arbitration varies significantly depending on the complexity of the case and the amount the parties choose to spend on attorneys, witnesses, and experts. While it is not always the case, arbitration is often faster and cheaper than litigation in many jurisdictions for several reasons, including the fact that (1) procedures can be tailor-fit to each case (2) there is no appeals process, as such, for arbitral awards like there is for court decisions and (3) parties can choose arbitrators who have more control over their schedule than a court judge who is subject to his or her docket demands.

An ‘institutional arbitration’ is one that is administered by an arbitral institution (such as the KCAB), usually under its own rules of arbitration. In an ‘ad hoc’ arbitration, there is no administering institution. All administrative, logistical, and procedural issues are decided by the parties or the arbitral tribunal. Even in ad hoc arbitration, parties must be treated with equality and have a reasonable opportunity of presenting their case or any resulting award may not be enforceable. 

The main advantage for institutional arbitration is that the rules laid down by an established arbitral institution will usually have been proven to work well in practice and early-stage procedural difficulties—including appointment of the tribunal—can be minimized. Institutional rules will also generally have undergone periodic revision in consultation with experienced practitioners, to take account of new developments in the law and practice of international arbitration. In ad-hoc arbitrations, on the other hand, the procedures can be fully shaped to meet the needs of the parties in light of the facts of the particular dispute. Ad hoc arbitration is sometimes popular where a particular form of procedure has taken hold in a certain region or industry and the parties generally feel no need for institutional involvement.

Seoul is the capital of the Republic of Korea (Korea), a country with a pro-arbitration legal regime, arbitration-friendly public courts, and a judiciary that is relatively knowledgeable on arbitration matters. Korea was the first nation in East Asia to adopt the United Nations Commission on International Trade Law (UNCITRAL) Model Law on International Commercial Arbitration of 1985 (‘Model Law’). The Arbitration Act of Korea has since been updated continuously to stay abreast of ongoing changes in the field, most recently in 2016 by incorporating many of the amendments made to the UNCITRAL Model Law in 2006. In the same year, the Korean Commercial Arbitration Board (KCAB), the only institution in Korea authorized by the Ministry of Justice to administer arbitrations, updated its International Arbitration Rules to reflect current best practices.  Korea has been one of the most active jurisdictions in Asia for international arbitration in the last 20 years.

In addition, Seoul is conveniently placed amidst the larger East Asian economies of China and Japan, while also being relatively easy to access from Southeast Asia, providing a neutral venue that has all the conveniences and support one would hope for, including a state-of-the-art hearing venue in the Seoul International Arbitration Center.

The KCAB was established in conjunction with the promulgation of the Arbitration Act of Korea in 1966 (then named the Korean Commercial Arbitration Committee under the Chamber of Commerce of Korea). The KCAB established its International Arbitration Rules in 2007 and the International Arbitration Rules have since been amended in 2011 and 2016, to stay abreast of market developments and best practices.

The KCAB’s International Arbitration Rules are the official rules that apply to any arbitration where the parties have expressly agreed in writing to refer their disputes to arbitration under the International Arbitration Rules or where they have agreed in writing to arbitration administered by the KCAB, and the arbitration is by nature an “international arbitration” as defined in the rules. They are distinguishable from the KCAB’s Domestic Arbitration Rules, which apply when the parties have chosen KCAB arbitration but the International Rules do not apply. Note that if any of the provisions laid out in the International Arbitration Rules are in conflict with a provision of law applicable to the arbitration from which the parties cannot derogate, that provision shall prevail.

“We, the undersigned parties, hereby agree that the following dispute shall be referred to and finally determined by arbitration in accordance with the KCAB International Arbitration Rules: [brief description of the dispute]”

Parties are free to choose the arbitration institution they want. The KCAB is the only arbitration institution in Korea authorized by the Ministry of Justice to administer arbitrations and is commonly chosen by parties doing business in Korea. There are, however, no restrictions on foreign arbitral institutions administering arbitral proceedings under their own arbitration rules in South Korea.

A party may represent itself or be represented by any person of its choice in proceedings under the KCAB Rules, subject to such proof of authority as the Arbitral Tribunal may require.

If the parties do not make an express choice of arbitration rules, the choice will have to be made for them, either by the Arbitral Tribunal itself or by a designated arbitral institution. This usually means that the law governing the arbitral proceedings will be the law of the country in whose territory the arbitration takes place. The Korean Arbitration Act stipulates that arbitrations that take place in Korea shall be conducted in accordance with the Arbitration Act of Korea.

The UNCITRAL Model Law is a generic legislative model that provides a guide for law-makers in crafting national arbitration legislation. Dozens of countries around the world, including Korea, have modeled their arbitration legislation on the Model Law, often with some variations. 

The UNCITRAL Arbitration Rules, on the other hand, are a set of procedural rules that may be selected by parties either as part of their contract, or after a dispute arises, to govern the conduct of an arbitration intended to resolve a dispute or disputes between them. 

Put simply, the Model Law is directed at States, while the Arbitration Rules are directed at potential (or actual) parties to a dispute.

The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the “New York Convention” or “Convention”), first promulgated in 1958, provides for cross-border enforcement of arbitral awards among all signatory countries. Most countries in the world are signatories. Parties to the Convention undertake to recognize and enforce international arbitral awards in their local courts according to the common standards set out in the Convention (enforcement of domestic awards is provided for under domestic law). As Korea is a signatory to the Convention, any party with an arbitral award rendered in any other signatory country may apply to the Korean court system for enforcement of their award in Korea. Similarly, any arbitral award rendered in Korea may be presented in a court of a State also party to the New York Convention for recognition and enforcement. This system of international reciprocity of enforcement has revolutionized international arbitration, making it one of the most popular methods for resolving cross-border commercial disputes.

The arbitration agreement is the agreement by which the parties agree to submit their dispute to arbitration. Without a valid arbitration agreement there can be no valid arbitration. It can be expressed through an arbitration clause in a contract or, if the dispute has already arisen, through a ‘submission agreement’, and generally must be in writing. Parties who enter into an arbitration agreement give up their right of recourse to the public courts of law and are bound to resolve all disputes subject to the agreement by arbitration.

In Korea, as in most countries, a valid arbitration agreement can be in the form of an arbitration clause or in a separate agreement. It must be agreed by parties who have the requisite legal capacity and authority, cover subject matter that can be resolved by arbitration and must be in writing. Under the 2016 amendment to the Korean Arbitration Act, the “in writing” requirement has been liberalized such that an arbitration agreement is deemed to be in writing if:

(1) the terms and conditions of the arbitration agreement have been recorded in any medium;

(2) the parties’ intentions have been communicated by telegram, telex, facsimile, electronic mail, or any other means of communication containing an arbitration agreement, except if such terms and conditions are not verifiable; 

(3) one party asserts that statements in a request for arbitration or an answer exchanged between the parties in a request for arbitration or an answer exchanged between the parties contain an arbitration agreement, and the other party does not deny it; or

(4) a contract references a separate document containing an arbitration clause, provided that the arbitration clause constitutes part of the contract.

A party that brings proceedings in a public court in breach of an agreement to arbitrate will, depending on the jurisdiction, most likely find those proceedings stopped at the request of the other party to the arbitration agreement. In Korea, courts shall reject actions brought before them in matters that are subject to an arbitration agreement if the defendant raises a plea for the existence of an arbitration agreement provided that the arbitration agreement is not null and void, inoperative or incapable of being performed.

Yes, an arbitration agreement can specify the number of arbitrators.

Yes, parties can choose the language(s) that the arbitration is to be conducted in. All communications, argument and evidence submitted to the Arbitral Tribunal or exchanged between the parties, must be presented in, or translated into, that language. Likewise, the communications, orders and awards of the Tribunal must be in that language. However, documents exchanged by the parties in the discovery phrase generally may be produced in their native language, without translation, unless otherwise agreed or ordered by the Tribunal. While bilingual proceedings are possible, it may lead to increased costs and lengthier arbitral proceedings, as every document, and oral submission must be presented in the chosen languages.

In the absence of an express agreement between the parties, the Arbitral Tribunal will determine the language of the arbitration.

An invalid contract does not necessarily invalidate the arbitration clause or previously commenced arbitral proceedings. Under what is commonly referred to as the “separability principle”, the validity of an arbitration clause in a contract is determined separately from that of the contract as a whole. That is because it is often found that parties intended to resolve disputes in relation to the contract, including as to the validity of the contract. Korea recognizes the separability principle.

No, parties to an international commercial agreement are free to choose for themselves the substantive law applicable to a contract.

In the absence of an agreement on the governing law of the contract, the arbitral tribunal will apply the substantive laws or rules of law which it deems appropriate under the circumstances. In all cases, the arbitral tribunal will take into account the provisions of the contract between the parties and relevant trade usages. 

The arbitral tribunal will assume the powers of an amiable compositeur or decide ex aequo et bono only if the parties have expressly agreed to give it such powers. 

A party intending to submit a dispute to arbitration under the International Arbitration Rules of the KCAB shall submit its Request for Arbitration (Request) to the Secretariat, which will notify the Claimant and the Respondent of the receipt of the Request and the date of such receipt. The date on which the Request is received by the Secretariat shall, for all purposes, be deemed to be the date of the commencement of the arbitration proceedings. The Respondent shall then submit an Answer within 30 days of receiving the Request from the Secretariat.

Parties may submit claims and counter-claims in their Request for Arbitration (Claimant) and in their Answer (Respondent) when initiating the arbitral proceedings. During the arbitration proceedings, any party may amend or supplement its claims, counter-claims, or defenses and notify the other party and the Secretariat thereof, unless the Arbitral Tribunal considers such amendment or supplement inappropriate due to delay of the proceedings, prejudice to the other parties, or any other reasons. In other words, the later in the proceedings, the more likely that new claims may not be allowed by the Tribunal. A party may not amend or supplement a claim, counter-claim, or defense if such amendment or supplement would fall outside the scope of the arbitration agreement. 

The Arbitral Tribunal will proceed with the arbitration if the Respondent fails to file an Answer without showing sufficient cause for such failure.

As a general rule, disputes under the International Arbitration Rules shall be heard by a sole arbitrator. However, a case may be heard by three arbitrators if the parties have agreed to do so or if the KCAB Secretariat determines it to be appropriate in the circumstances.

If the dispute is to be referred to a sole arbitrator and the parties fail to jointly nominate a sole arbitrator, the Secretariat shall appoint the sole arbitrator.

Where the parties have agreed that the dispute is to be referred to three arbitrators and each party is to nominate one arbitrator each, and one or both parties party fail to nominate an arbitrator, the Secretariat will make the appointment(s) in place of the parties. 

If the arbitrators nominated by the parties fail to jointly nominate a third arbitrator, the Secretariat will appoint the third arbitrator.

Parties must appoint arbitrators within specific time periods; if they fail to do so, the KCAB’s Secretariat may appoint the arbitrator(s). Where the dispute is to be referred to a sole arbitrator, for instance, the parties should jointly nominate the arbitrator within 30 days of the commencement of the arbitration. Where the dispute is to be referred to three arbitrators by party agreement, the Claimant shall nominate an arbitrator in the Request or within such additional period of time as fixed by the Secretariat, and the Respondent shall nominate an arbitrator in the Answer or within such additional period of time as fixed by the Secretariat. Where the Secretariat decides to refer the dispute to three arbitrators, each party shall nominate an arbitrator within 30 days of receiving notice of such decision or within such additional period of time as fixed by the Secretariat. Upon appointment of the first two arbitrators, the two arbitrators shall jointly nominate the third arbitrator, who shall act as chair of the Arbitral Tribunal. If, within 30 days of the appointment of the second arbitrator, the two arbitrators have not nominated a third arbitrator to act as chair, the Secretariat shall appoint such arbitrator. 

Any person is eligible to be an arbitrator except those specifically disqualified by law. All arbitrators must, however, conform to the KCAB Code of Ethics. The Code describes the basic requirements of an arbitrator necessary in order to carry out their duties impartially. Parties can elect for arbitrators to sign an ethics statement prior to the commencement of the arbitration procedure. Additional requirements exist to be listed as an arbitrator of the KCAB, such as one must possess at least 10 years of working experience in the legal field, with a special emphasis on the experience of arbitral writing.

Arbitrator appointments may be challenged by a party if circumstances give rise to justifiable doubts as to the arbitrator’s impartiality or independence. A party may only challenge their arbitrator for reasons which the party becomes aware of after the nomination. These challenges must be made in writing to the Secretariat specifying the facts and circumstances on which the challenge is based. A challenge is only considered valid if it is made 15 days from:

  (a)   the date of receipt of the confirmation if the parties nominated the arbitrator, or the date of receipt of the appointment if the Secretariat appointed the arbitrator; or

  (b)   the date on which the party making the challenge becomes aware of the facts and circumstances giving rise to such challenge. 

As arbitrations are extremely flexible, not all of them will include every proceeding which parties may be used to in a litigation. Every case begins with a Request for Arbitration, which is reviewed and accepted by the Secretariat, followed by constitution of the tribunal. Usually, this is followed by the filing of Answer(s) and Counter-claims by the Respondent. Procedures after that are determined case-by-case. However, in a typical case, the parties will then file submissions setting out their claims, counter-claims, and defenses in detail - often together with supporting written evidence, - engage in some form of discovery, file reply submissions, hold an oral hearing with witness examinations and cross-examinations, and present closing statements or post-hearing briefs. When the Tribunal is satisfied that it does not need any further submissions or information from the parties, it will formally close the proceedings and then render the final award. Oral hearings are not always held, nor are witness examinations conducted in some contract interpretation cases or Expedited Proceedings.

Yes, an Arbitral Tribunal’s decisions on its jurisdiction can be reviewed by a competent public court. A party who objects to an Arbitral Tribunal’s decision may file a petition with a court to examine the jurisdiction of the Arbitral Tribunal, within 30 days after the party is notified of the Arbitral Tribunal’s decision.

Discovery (also known as disclosure) is generally permitted in arbitration. For instance, the KCAB International Rules stipulate that, “unless otherwise agreed by the parties in writing, the Arbitral Tribunal may at any time during the proceedings order the parties: to produce... evidence it deems necessary and appropriate”. Further, the Tribunal, the local court, or both may facilitate the taking of evidence.  However, while the scope of discovery varies according to the circumstances of the case, it is usually relatively limited compared to most common law jurisdictions. This balances the interests of efficiency and cost reduction with the need for appropriate fact-finding.

Yes, the KCAB rules allow for cross-examination of witnesses in the event that there are oral hearings in the arbitration (some arbitrations limit hearings to document production). Further, the KCAB rules allow for the use of Expert witnesses, whose information shall be communicated to the parties.

Korea has a civil law legal system that does not explicitly recognize principles of legal “privilege” as a basis to withhold documents from disclosure. Neither the Korean Arbitration Act nor the KCAB International Arbitration Rules explicitly address this issue. However, this is not unusual. The same is true of the UNCITRAL Model Law and most arbitration rules, for instance. However, arbitral tribunals are generally considered to have authority to apply the legal or ethical rules, including issues of confidentiality or privilege, which it determines to be appropriate considering the circumstances of the case.

The Tribunal may not investigate facts absent the parties without the express consent of the parties. The arbitral process allows for a great deal of flexibility, and if the parties consent to this exterior investigation, for reasons such as time and monetary efficiency, the arbitrator(s) may so proceed.

Yes,.under the KCAB International Arbitration Rules, the Secretariat may allow submission of claims arising out of multiple contracts within a single Request, provided that the Secretariat is prima facie satisfied that the respective arbitration agreements are compatible (including application of the International Arbitration Rules), and the claims arise out of the same transaction or series of transactions. Additionally, the Arbitral Tribunal may, at the request of a party and after giving all parties an opportunity to make submissions on the issue, consolidate claims made in a separate but pending arbitration if such arbitration is also under the same arbitration rules and between the same parties (with a limited exception in cases where any arbitrator in the tribunal has been appointed in such separate arbitration proceedings). These consolidations are carefully considered by the Secretariat or Tribunal before being allowed, in an attempt to mitigate any potential consequences which may arise. Any doubt of the propriety of consolidating the cases will result in a non-consolidation.

Yes, a request for joinder can be made under the KCAB rules, by either party. A party may be joined if (1) it is so agreed by all the parties, including the party to be joined; or (2) the party to be joined is also a party to the same arbitration agreement with the parties and has agreed in writing to be joined, unless the Tribunal does not allow the joinder due to adverse consequences such as a delay in the arbitration. Thus, joinder is generally more likely to be allowed in the early stages of an arbitration.

An interim measure is an award by an emergency arbitrator or the arbitral tribunal, enjoining or ordering actions by one party, in order to prevent, or mitigate, such actions by that party which would cause irreparable harm to the party petitioning for the interim measure and in order to ensure the efficacy of a final award.

Generally, all parties, the Tribunal, and the KCAB are obligated to keep the arbitration proceedings and materials confidential. The KCAB may publish awards from which it has redacted all identifying information, provided that the parties do not object.

A Tribunal may award such remedies as it sees appropriate, based on the claims and requests for relief sought by the parties. A Tribunal should not make awards on questions which were not asked, or which are otherwise outside the scope of the arbitration. Remedies may include monetary awards (including interest), enjoinment of certain actions, or any other legally recognized award within the scope of the dispute.

The International Arbitration Rules stipulate that unless all parties agree otherwise, the Tribunal shall render its Award within 45 days, of the later of two events: the final submissions of the case to the tribunal or the closure of the hearings. 

No, awards do not create binding legal precedent but they are binding on the parties themselves. Awards issued in arbitrations administered by the KCAB may be published (after being appropriately redacted) so that parties may educate themselves on the kinds of reasoning used by Tribunals when rendering an award.

Under the Korean Arbitration Act, apart from limited exceptions, a Korean court must recognize and enforce any arbitral award issued in Korea. Likewise, because Korea is a party to the New York Convention, Korean courts are also required to recognize and issue a judgment enforcing any arbitral award rendered by a Tribunal in a country which is also a party to the New York Convention, unless the award falls under a limited number of narrow exceptions stipulated in the New York Convention. Unless a party resisting enforcement can prove one of those exceptions applies, the court may utilize any of its powers to ensure that an award is enforced.  Awards issued in countries that are not parties to the Convention may also be enforced by a Korean court, but only if they meet various requirements.

If the parties reach terms of agreement to settle the dispute on a commercial basis, they may choose to withdraw their claims from arbitration, effectively ending the arbitration. Alternatively, the parties may ask for an award by consent, summarizing their settlement, so that it retains the binding quality of an arbitral award. 

No, arbitral awards may not be appealed in the same way that a court decision can be. However, under limited circumstances set out under the New York Convention or under the Korean Arbitration Act, an award may be set aside or annulled due to, for instance, lack of notice, lack of jurisdiction, or being contrary to public policy. 

A court may refuse to enforce an arbitral award issued in another New York Convention country on any of the grounds for refusal to enforce found in the New York Convention. These reasons include, but are not limited to: lack of notice, lack of jurisdiction, and conflict with the public policy of Korea. For non-signatory States to the New York Convention and awards rendered in Korea, enforcement or refusal thereof is governed by the Korean Civil Procedure Act and the Korean Civil Execution Act. 

Awards that are submitted for enforcement in New York Convention States follow the rules detailed for court enforcement of awards and are in most cases immediately enforceable in the courts of any other State that is a signatory to the Convention. Awards which are submitted for enforcement in non-New York Convention States are subject to the rules of that country, and any reciprocal agreements which Korea may have with that specific country.

An application for emergency relief can be made in writing to the Secretariat before the constitution of the Arbitral Tribunal. This application will be a request for interim measures which will be heard by an emergency arbitrator.  

There is a flat administrative fee of KRW 3 million paid to the Secretariat which is refundable if the arbitration application is withdrawn before appointment of the emergency arbitrator. Additionally, the fee for the emergency arbitrator is KRW 15 million.  

The Emergency Arbitrator shall establish a procedural timeline within 2 business days of their appointment, and they shall make a decision on the application within 15 days of their appointment. 

As optional-arbitration clauses are not considered valid in Korea, and the validity of the arbitration clause determines the appropriate forum for the proceedings (judicial or arbitral), parties must look to the validity of their arbitration agreements to see if they are pursuing dispute resolution in the correct venue. If the party seeking to use an emergency arbitrator does not have a valid arbitration agreement, then they will be barred from using an emergency arbitrator. Further, if the parties do have a valid arbitration agreement which provides for arbitration under the KCAB, but which was signed before 1 June 2016, then they are barred from using the KCAB’s emergency arbitrator provisions.

The Expedited Procedure is an arbitration which focuses on expediency, and is typically used for cases with low dispute amounts or at the party’s request. The rules limit discovery and witness examination, and make use of teleconferencing to reduce the time and money expended on the arbitration. Further, the Expedited Procedure calls for use of a sole arbitrator and an award being rendered within six months of the constitution of the Tribunal, further limiting the time and financial burden of the arbitration. 

The Expedited Procedure is implemented in one of two scenarios. The first is at the request of or parties’ consent. The second is in disputes valued under KRW 500,000,000 (Approx. USD 500,000). 

The costs of an arbitration shall include but not be limited to the costs of the filing fee, advance on costs, administrative fees, arbitrator fees, and attorneys’ fees.

The Tribunal typically operates on a loser-pays system, in principle. However, the Tribunal may allocate costs as they see fit in a given case. This could result in a number of apportionments. For instance, each side may be required to pay their own attorney’s fees, one side may be required to pay all arbitration costs but not attorney’s fees, or one party may be required to pay all costs of the arbitration in full.  

The costs of an arbitration are determined, ad valorem, based on the amount in dispute. The equations to determine the amount in question can be found in the charts in Appendix 1 and Appendix 2 of the KCAB International Arbitration Rules. There are minimum and maximum costs for each level of amount in dispute.

The addition of rules concerning:

A. Emergency Arbitrator – Appendix 3

B. Confirmation of the appointment of the Tribunal – Article 13

C. Joinder of parties/consolidation of claims – Article 21/23

A. Emergency Arbitrator System 

The 2016 International Arbitration Rules provides for Emergency Measures by Emergency Arbitrators in Appendix 3. The newly introduced emergency arbitrator system now provides parties with interim relief prior to the constitution of the Arbitral Tribunal. 

B. Confirmation on the Appointment of Tribunal

According to Article 13 of the 2016 International Arbitration Rules, the Secretariat is now allowed to screen the nominated arbitrator before confirming the appointment of the Arbitral Tribunal.

C. Joinder of Parties/ Consolidation of Claims

Article 21 of the 2016 International Arbitration Rules provide for an additional party to join the arbitration after the constitution of the tribunal at the request of a party upon written agreement of all the parties to the arbitration, or with written agreement of the additional party if all the claims are made under the same arbitration agreement. Also, Article 23 provides that after considering the nature of the dispute, the tribunal may permit a new claim to be merged with the existing arbitration if the parties to the new claim are the same as those to the existing arbitration.

An Arbitrator has broad procedural powers to regulate the arbitration’s process. The arbitrator(s) may require clarification of answers and counter-claims, bifurcate proceedings, or they may re-open proceedings as they deem necessary.

Under the Korean Arbitration Act, courts have limited powers to act in relation to arbitral proceedings. These powers are: 

1. Decide on validity of arbitration agreements or questions of jurisdiction;

2. Order emergency or provisional measures in aid of arbitration;

3. Order enforcement of arbitral awards or, conversely, order that an award be annulled on grounds set out in the New York Convention or the Korean Arbitration Act;

4. Aid in the taking of evidence at the request of the arbitral tribunal timely and efficient rendering of an arbitral award by compelling a witness to comply with a notice of hearing. 

Generally, mediators and arbitrators should be independent and any information collected during proceedings of either type should be kept confidential and shall not be used against either of the parties in a future proceeding unless agreed to by the parties. Appointed mediators shouldn’t have ties to an ongoing arbitration unless agreed by the parties. And, any information, documents or other materials the mediator may have come into possession in capacity as a mediator are to be considered confidential unless otherwise agreed by the parties and/or are need for the enforcement of an arbitral award.