Arbitration Procedure - Chapter 5 - Arbitration Law of Korea: Practice and Procedure
About the firm:
Bae, Kim & Lee's International Arbitration and Litigation Group has earned worldwide respect for its forceful and uncompromising representation of clients. In a field where experience counts, BKL boasts Korea's first dedicated international arbitration practice group. Having been at the forefront of the field in Korea for the past 10 years, the team is now composed of 16 attorneys from several jurisdictions plus paralegals and staff, and includes a former Counsel of the ICC Secretariat and several members listed in leading publications including Who's Who Legal, Chambers, and Asia-Pacific Legal 500. This year, reflecting the team's progress and current international standing, BKL received the Arbitration Win of the Year award from Global Arbitration Review (GAR) and had the honor of being the first and only Korean firm ever listed in the "GAR 30," awarded to the 30 top arbitration practices worldwide.
General Editors:
Kap-You (Kevin) Kim is Head of the International Arbitration and Litigation Practice Group and Partner of Bae, Kim & Lee LLC. Mr. Kim has the distinct honor of being a Court Member of the ICC Court of Arbitration and the London Court of International Arbitration, listed ICSID arbitrator, Senior Advisor to the Korean Commercial Arbitration Board, Vice Chair of the IBA Arbitration Committee and a Board Member of the American Arbitration Association.
John P. Bang is Partner (foreign legal adviser) and co-founder of Bae, Kim & Lee's International Arbitration and Litigation Practice Group. Mr. Bang has acted as counsel in over 75 commercial arbitral proceedings in Asia, Europe and the US under the rules of all major international arbitral institutions including, among others, the ICC, ICSID, LCIA, SIAC, JCAA, and KCAB (Korean Commercial Arbitration Board) and numerous litigation proceedings in various foreign jurisdictions. He was named in the Global Arbitration Review’s "45 under 45" for 2011, which lists the leading figures of the international arbitration bar under the age of 45
Contributing Authors:
Seungwoo (Sean) Cho
Matthew J. Christensen
Kyongwha Chung
Seung Il Hong
Woochul Hwang
Eun Ah Jeung
Byoung Pil Kim
Hong-Joong Kim
Junu Kim
Sue Hyun Lim
David W. MacArthur
James Morrison
JongKwon Ryoo
Yunsoo Shin
Sung Woo Yang
Seokchun Yun
Originally from Arbitration Law of Korea: Practice and Procedure
ARBITRATION PROCEDURE
5.1 INTRODUCTION
Arbitration procedure is influenced by a country's legal tradition, its national arbitration law, and the arbitration rules of the country's designated arbitration institution. Korea is no different. In Korea, the one overriding attribute shared by all of the foregoing is naturally the requirement that the parties be treated equally, and that each party is given a full opportunity to present its case.
As previously noted, Korea is a civil law country, having incorporated the Continental legal tradition into its basic laws and legal practice. It is the normal practice of Korean courts to hold intermittent hearings (i.e., hearings over three to four week intervals). In the context of domestic arbitration in Korea, this tradition has largely been carried on, while in the context of foreign-related or international arbitrations, the procedures are more closely aligned to international practices. These phenomena are discussed in detail in this chapter.
It is worth briefly recalling at this juncture the development of international arbitration in Korea, as the backdrop to our discussion of the current and future procedural practices and trends in arbitration in Korea. The Arbitration Act was enacted in March 1996 as the first modern legislation addressing arbitration on the Korean peninsula, and wholly amended in 1999 to adopt the UNCITRAL Model Law. These efforts demonstrated Korea's desire to join the international community and bring its national arbitration laws into alignment with the UNCITRAL Model Law.
Chapter 5 Arbitration Procedure
5.1 Introduction
5.2 KCAB and Its Arbitration Rules
5.2.1 KCAB
5.2.2 Arbitration Rules of the KCAB
5.2.2.1 Overview of Available Arbitration Rules
5.2.2.2 Special Features
5.3 Main Stages of the Arbitration
5.4 General Principles
5.4.1 Party Autonomy
5.4.2 Equality of Treatment
5.4.3 Discretionary Powers of Arbitrators
5.4.4 Rule of Waiver and Duty to Object to Procedural Errors
5.4.5 Place of Arbitration
5.4.6 Language
5.4.7 Party Default
5.4.8 Representation
5.5 Commencement of Arbitration Proceedings
5.5.1 Requirements of the RFA
5.5.1.1 Common Requirements under Both the Arbitration Rules and International Rules
5.5.1.2 Other Special Requirements under the Arbitration Rules
5.5.1.3 Other Special Requirements under the International Rules
5.5.1.4 Number of Copies and Filing Fee
5.5.2 Answer and Counterclaims
5.5.2.1 Requirements for the Response to the RFA
5.5.2.2 Timing and Failure to File an Answer
5.5.2.3 Request for an Extension of Time to File an Answer
5.5.2.4 Counterclaims
5.6 Conciliation and Settlement
5.7 The Tribunal
5.8 Preliminary Steps
5.8.1 Objections to Jurisdiction
5.8.1.1 Procedure and Practice
5.8.1.2 Court Involvement
5.8.2 Preliminary Meeting
5.9 Written Submissions
5.9.1 Overview
5.9.2 Format
5.10 Documents
5.10.1 Overview
5.10.2 Voluntary Production of Documents
5.10.3 Specific Requests for Documents
5.10.4 Legal Privilege and Professional Secrets
5.10.5 Practicalities
5.10.6 Electronic Disclosure and Future Trends
5.11 Fact Witnesses
5.11.1 Overview
5.11.2 Format
5.11.3 Practicalities
5.11.4 Court Assistance
5.12 Expert Witnesses
5.12.1 Overview
5.12.2 Party-appointed Experts
5.12.3 Tribunal-appointed Experts
5.12.4 Challenges to Experts
5.12.5 Area of Expertise
5.13 Interlocutory Applications
5.14 Evidentiary Principles
5.15 The Hearing
5.15.1 Opening Statements
5.15.2 Procedure and Practice
5.15.3 Practicalities
5.16 Confidentiality