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Arbitration Procedure

Arbitration Procedure under the Revised International Arbitration Rules of KCAB

  • 1. Arbitration Agreement
    • 1. Arbitration Agreement
    • Parties may file a Request for Arbitration where the contract in dispute contains an effective
      arbitration agreement or when the parties agree in writing to resolve their disputes by arbitration.
      Where a case is í░internationalí▒ (i.e., where one party has its place of business outside of Korea
      or the place of arbitration is outside Korea), the International Arbitration Rules will apply by
      default, unless the parties agree otherwise.
  • 2. Request for Arbitration (Payment of Filing Fee and Advance of Costs)
    • 2. Request for Arbitration (Payment of Filing Fee and Advance of Costs)
    • Claimant shall pay a fixed filing fee when submitting its Request for Arbitration. Upon receiving the
      Request, the Secretariat notifies Respondent, who has 30 days to submit an Answer.
      The Secretariat will provide a pre-estimate of the arbitration expenses (including administrative
      and arbitrator fees) which the parties shall pay in equal shares prior to the commencement
      of proceedings. This advance will be re-calculated once proceedings are brought to a close.
  • 3. Submission of Answer (Filing Counterclaims)
    • 3. Submission of Answer (Filing Counterclaims)
    • When submitting the Answer, Respondent may also file a Counterclaim, which may be
      consolidated with the existing claim and the amount in dispute shall be the sum of both claims.
      The Respondent will be charged a separate filing fee for its Counterclaim. If the Respondent
      disputes the jurisdiction of the arbitral tribunal or otherwise believes there is no basis upon which
      the arbitration may be conducted, they may make this submission in the Answer.
  • 4. Constitution of Arbitral Tribunal
    • 4. Constitution of Arbitral Tribunal
    • In principle, disputes under the International Rules shall be decided by a sole arbitrator chosen
      by the parties, unless the parties agree otherwise. When asked by the parties, the Secretariat
      shall provide a list of arbitrators with the necessary expertise and impartiality. If the parties are
      unable or unwilling to appoint an arbitrator, the Secretariat will make the appointment on their
      behalf. To this end, the KCAB may consult the International Arbitration Committee (IAC), which
      will assist in the appointment of a tribunal. In the event of a challenge by one party to the
      appointment of an arbitrator, the Secretariat will decide on the challenge,
      having first consulted the IAC.
  • 5. Hearing
    • 5. Hearing
    • The Tribunal is fully in charge of hearings. Unless and until the Tribunal directs otherwise,
      all communications, written or verbal, shall take place directly between parties or between
      each party and the Tribunal.
  • 6. Delivery of an Award
    • 6. Delivery of an Award
    • Once the hearing(s) have concluded, an Award is rendered by the tribunal. When all outstanding
      arbitration expenses have been paid, the Secretariat shall deliver the Award to the parties.
  • 7. Enforcement of an Award
    • 7. Enforcement of an Award
    • An Award rendered by the Tribunal is binding upon the parties.The Secretariat shall deliver to the
      competent court the Award and a copy of the document proving that the Award has been delivered
      to the parties. Parties may obtain a writ of execution based on the Award either in a Korean Court or abroad.
1. Place of Arbitration

The concept of "party autonomy" also applies to the matter of determining the place of arbitration. Arbitration can be conducted within
or outside the country, as agreed upon in the arbitration agreement.

  • Arbitration Act of Korea states in Article 21 that:
  • (1) The parties shall be free to agree on the place of arbitration.
  • (2) Failing such agreement referred to in paragraph (1), the place of arbitration shall be determined by the arbitral tribunal
    having regard to the circumstances of the case, including the convenience of the parties.

It is rare that parties to a commercial arbitration agree to arbitrate without first agreeing on the place of arbitration. Arbitration is usually
structured with keen attention to the place of arbitration because the very nexus of the problem of enforcing the arbitral award often lies
in fixing the place of arbitration.

2. Arbitration Proceedings in General

When no agreement has been reached between the parties, procedural rules for the arbitration of a private commercial matter will be as provided in the Korean Arbitration Act. The Korean Arbitration Act also states in Article 20 [2] that the arbitral tribunal may, subject to the provisions of this the Korean Arbitration Act, conduct the arbitration in such manner as it considers appropriate. The power conferred upon the arbitral tribunal shall include the power to determine the admissibility, relevance, and weight of any evidence. The proceedings of a hearing are conducted in accordance with Article 27 through Article 45 of the KCAB Arbitration Rules.

In commercial arbitration, a statement of claim must include a written brief outlining the dispute. In response to the request,
a written reply is to be made prior to the hearing. The respondent may submit a counterclaim at any time during the arbitration
proceedings. However, if this creates an undue burden on the other party or delays the completion of the proceedings,
the tribunal may, at the request of the other party, refuse to accept the counterclaim (Art. 14 [1] Rules). At the hearing, the tribunal
may ask the parties to present statements which clarify the issues in dispute. During the proceedings, the parties may present
additional statements either at their own initiative or as required by the arbitrators.

3. Evidence

The parties may present witnesses who will be heard by the tribunal in the presence of both parties. Witnesses may be heard under
proceedings which provide for cross-examination. The tribunal has the discretion to determine the relevance and materiality of
evidence (Art. 42 [5] Rules). If a witness is unwilling to appear, the tribunal may file an application with a competent court to have
the witness appear (Art. 28 [1] of the Korean Arbitration Act and Art. 42 [3] of the Rules). However, the tribunal may reach its own conclusion if a witness is not willing to appear.

4. Experts

Parties to a commercial arbitration may present expert witnesses in support of their arguments (Art. 42 [1] Rules). However,
the tribunal may also call on an expert of its own, for example in cases where there are differing opinions from the expert witnesses
of the respective parties. General rules apply to witnesses and experts, such as their being heard in the presence of both parties
and both parties having an equal opportunity to present any material or relevant evidence.

5. Interim Measures of Protection

Pursuant to the Korean Arbitration Act (Art. 10), a party to an arbitration agreement may request before or during arbitral proceedings, from a court an interim measure of protection and for a court to grant such measure.

Article 18 also states that unless otherwise agreed by the parties, the arbitral tribunal may, at a request of a party, order any party
to take such interim measure of protection as the arbitral tribunal may consider necessary in respect of the subject-matter of the
dispute. The arbitral tribunal may determine an amount of security to be provided by the respondent in lieu of such measure.

6. Representation

The parties may be represented by agents with power of attorney. The Rules (Art. 7) specifically prescribe that "any party may,
in taking proceedings under these Rules, be represented by a counsel or such other person as shall be recognized to be proper."

7. Default

As with civil litigation before a court of law, a party in a commercial arbitration who, after proper notice by the Secretariat, fails to appear
or to obtain an adjournment, cannot prevent the arbitrators from conducting the entire proceedings in their absence, including the
rendering of an award in accordance with the Rules (Art. 36) and the Korean Arbitration Act (Art. 26 [3]).