Applicable requirements as to the form of arbitral awards
Applicable legislation as to the form of awards
1 Must an award take any particular form (e.g., in writing, signed, dated, place, the need for reasons, delivery)?
Article 32 of the Korean Arbitration Act (KAA) governs the form of arbitral awards in Korea. An arbitral award shall be in writing and signed by all arbitrators. In addition, an arbitral award shall state the reasons on which it is based as well as the date and place of the arbitration. An authentic copy of the award made and signed in accordance with the foregoing shall be delivered to each party involved.
Applicable procedural law for recourse against an award
Applicable legislation governing recourse against an award
2 Are there provisions governing modification, clarification or correction of an award?
The correction or interpretation of an award is governed by Article 34 of the KAA.
Correction upon parties’ request
Within 30 days of receipt of the authentic copy of an arbitral award, each party may request that the arbitral tribunal (1) correct any errors in computation, any clerical or typographical errors or any errors of a similar nature, (2) give an interpretation of a specific point of or part of the award, if so agreed by the parties, or (3) make an additional award as to claims presented in arbitral proceedings but omitted from the award. The arbitral tribunal should decide within 30 days (as regards points (1) and (2), above) or 60 days (as regards point (3), above) of receipt of the request.
Correction at the discretion of the arbitral tribunal
The arbitral tribunal may, ex officio, correct any errors in computation, any clerical or typographical errors or any errors of a similar nature within 30 days of the date of the award.
Appeals from an award
3 May an award be appealed to or set aside by the courts? If so, on what grounds and what procedures? What are the differences between appeals and applications for set-aside?
An award, domestic or foreign, cannot be appealed to the courts. The only way for a party to challenge an award is to file a lawsuit with the court for setting aside the award within three months of the date on which the party received an authentic copy of the award (Article 36(1) and (3), KAA).
A domestic award can be set aside by the court when the party seeking set-aside of the award (the challenging party) proves that (1) the underlying arbitration agreement is invalid or any party to the arbitration agreement was under some incapacity under the law applicable to it; (2) the challenging party was not given proper notice of the appointment of arbitrators, or other arbitral proceeding; (3) the subject matter of the award dealt with matters outside the scope of the arbitration agreement; or (4) the composition of the arbitral tribunal or arbitral proceedings were not in accordance with the agreement between the parties or the KAA. The court may also set aside an award when it finds on its own initiative that the subject matter of the dispute is not arbitrable under the laws of Korea, or the award is in conflict with the good morals and other forms of social order of Korea (Article 36(2), KAA).
A foreign award can be set aside according to the laws of the place of the arbitration and by the court thereof.
Applicable procedural law for recognition and enforcement of arbitral awards
Applicable legislation for recognition and enforcement
4 What is the applicable procedural law for recognition and enforcement of an arbitral award in your jurisdiction? Is your jurisdiction party to treaties facilitating recognition and enforcement of arbitral awards?
The recognition and enforcement of arbitration proceedings in Korea is governed by the KAA, and by treaties ratified by Korea such as the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (the New York Convention).
Since amendments to the KAA entered into effect, on 30 November 2016 (Act No. 6083 of 1999 as amended by Act No. 14176 of 2016), the KAA closely follows the language of the 2006 UNCITRAL Model Law. Among other things, the 2016 amendments to the KAA further simplify the recognition and enforcement process. That is, the process of recognition and enforcement will be carried out in the form of a court order (rather than a formal judgment), encouraging more expeditious enforcement proceedings.
Although there have not been many cases on recognition or enforcement of arbitral awards since the amendments have taken effect, in light of the few cases so far, it appears that the courts are attempting to expedite the process and swiftly render their orders. Notably, a district court has recently decided to recognise and enforce a foreign arbitral award as swiftly as within three months of the application, despite an annulment proceeding that was pending at the seat of the arbitration outside Korea (Changwon District Court Decision No. 2017 Kagi824 rendered on 24 August 2017).
Korea is a party to the 1966 Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the ICSID Convention) and to multiple regional or bilateral investment promotion and protection agreements that guarantee enforcement of arbitral awards relating to the disputes between a host country and an investor. Therefore, foreign arbitral awards, including ICSID awards that are subject to these Conventions, are recognised and enforced in Korea in accordance with these Conventions.
The New York Convention
5 Is the state a party to the 1958 New York Convention? If yes, what is the date of entry into force of the Convention? Was there any reservation made under Article I(3) of the Convention?
Yes, Korea acceded to the New York Convention on 8 February 1973 and the Convention entered into force in Korea on 9 May 1973. Korea has made reservations for both reciprocity and commercial relationships. As a result of these two reservations, an award is treated as a New York Convention award under the KAA only if it was rendered in a country that is also a party to the New York Convention and it involves a commercial dispute as determined by Korean law. This apparent limitation is not so relevant in practice, however, as the vast majority of foreign arbitral awards presented for enforcement in Korea are rendered in countries that are parties to the New York Convention and concern commercial matters. Furthermore, awards rendered outside Korea that are not subject to the New York Convention may still be enforced in Korea under Article 39(2) of the KAA.
6 Which court has jurisdiction over an application for recognition and enforcement of arbitral awards?
The Korean judiciary is based on a three-tier court system. There are no separate courts that handle the recognition and enforcement of arbitral awards. Thus, the first instance courts that have jurisdiction in accordance with Article 7(4) of the KAA (see question 7) will have jurisdiction over the recognition and enforcement of both domestic and foreign arbitral awards.
7 What are the requirements for the court to have jurisdiction over an application for recognition and enforcement of arbitral awards? Must the applicant identify assets within the jurisdiction of the court that will be the subject of enforcement for the purpose of recognition proceedings?
Under Article 7(4) of the KAA, an application for the recognition and enforcement of an arbitral award (both domestic and foreign) shall be filed with any of the following courts, as appropriate: a court designated by arbitration agreement; or a court that has jurisdiction over (1) the place of arbitration, (2) the place where a respondent’s property is located, (3) a respondent’s domicile or place of business, (4) a respondent’s place of abode if neither the domicile nor place of business can be found, or (5) a respondent’s last known domicile or place of business if his or her place of abode cannot be found.
The applicant need not identify assets within the jurisdiction of the court unless he or she files the application based upon subparagraph 3 of Article 7(4) of the KAA (jurisdiction over the place where respondent’s property is located).
Form of the recognition proceedings
8 Are the recognition proceedings in your jurisdiction adversarial or ex parte?
Recognition proceedings in Korea are adversarial although, under the 2016 KAA, a formal hearing, at which each party should present its arguments, is no longer required. However, the court may summon the parties to a brief hearing at its discretion, when the court would ask questions necessary for rendering its order, depending on the level of complexity of the case. Although there have not been many cases since the 2016 KAA has taken effect, it appears that the number of hearings is usually limited to one.
Form of application and required documentation
9 What documentation is required to obtain the recognition of an arbitral award?
Under Article 37(3) of the KAA, an application to obtain a recognition order must be filed before the relevant competent court, accompanied by the original award, or a copy thereof, and, if the award is made in a foreign language, a translation of the award in Korean. The arbitral award does not have to be duly certified or authenticated, and the Korean translation of the award does not have to be duly certified.
Translation of required documentation
10 If the required documentation is drafted in a language other than the official language of your jurisdiction, is it necessary to submit a translation with an application to obtain recognition of an arbitral award? If yes, in what form must the translation be?
If the award is made in a foreign language, a translation of the award in Korean must be filed with the application.
Other practical requirements
11 What are the other practical requirements relating to recognition and enforcement of arbitral awards?
As well as the written application and the required documents, the applicant must submit a receipt for payment of the service of the process fee and the stamp fee, and, if the party has appointed legal counsel to act on its behalf, a document evidencing power of attorney.
Recognition of interim or partial awards
12 Do courts recognise and enforce partial or interim awards?
Korean courts recognise and enforce partial or interim awards.
Grounds for refusing recognition of an award
13 What are the grounds on which an award may be refused recognition? Are the grounds applied by the courts different from the ones provided under Article V of the Convention?
Korean courts have advanced a strong pro-arbitration policy. They will refuse recognition or enforcement of arbitral awards only if one of the grounds for refusal of enforcement of the KAA (for domestic awards) or Article V of the New York Convention (for foreign awards) exists. The grounds for the refusal of enforcement provided by the KAA are almost identical to those provided by Article V of the Convention, except that there is no provision corresponding to Article V.1(e). It should also be noted that Korean courts have narrowly interpreted the grounds for refusal of enforcement and have only refused recognition of arbitral awards on very rare occasions. Most notably, the Supreme Court has held in a 2018 enforcement proceeding that an arbitral award ordering the losing party to pay a daily monetary penalty for non-performance of an injunctive order, which is not allowed in judgments on merits under the Civil Execution Act, was not against Korean law or public policy (Supreme Court Decision No. 2016Da18753 rendered on 29 November 2018). This decision clearly shows that the Korean courts are strongly inclined to recognise and enforce arbitral awards, except in exceptional cases.
Effect of a decision recognising an award
14 What is the effect of a decision recognising an award in your jurisdiction? Is it immediately enforceable? What challenges are available against a decision recognising an arbitral award in your jurisdiction?
Under Article 35 of the KAA, an order recognising an arbitration award confirms that the arbitration award has the same effect as a final and conclusive court judgment. Thus, if the court recognises an arbitral award, it will have res judicata effect. The award will not become automatically enforceable as a result, however, and a separate enforcement order is necessary (Article 37(2), KAA). The party seeking enforcement can seek both recognition and enforcement in one action. When the court issues an order for recognition or enforcement, or both, of an arbitration award, it must include the grounds for its decision, although it may choose to only include the basic grounds, if it did not hold oral hearings (Article 37(5), KAA).
Challenges against an order recognising an arbitral award can be made through an immediate appeal (Article 37(6), KAA). When an order is rendered by the first instance court, the losing party may appeal the order by submitting a petition of appeal within one week of being notified of the order (Article 444(1) of the Korean Civil Procedure Code (KCPC)). The appellate decision is also subject to further appeal to the Supreme Court, which must be filed within one week of the notification of the lower appellate decision. However, a further appeal to the Supreme Court may be filed only when a violation of the Constitution, laws or regulations has affected the lower appellate decision (Article 442, KCPC).
While an immediate appeal does not have the effect of suspending execution of the enforcement order, the appellate court may still suspend execution, either with or without requiring the losing party to post security, or allow execution by requiring the prevailing (i.e., enforcing) party to post security (Article 37(7), KAA).
Decisions refusing to recognise an award
15 What challenges are available against a decision refusing to recognise an arbitral award in your jurisdiction?
Challenges against a decision refusing to recognise an arbitral award can be made in the same way as challenges against a decision recognising an arbitral award, that is, by way of immediate appeal (Article 37(6), KAA) and further appeal (Article 442, KCPC).
Stay of recognition or enforcement proceedings pending annulment proceedings
16 Will the courts adjourn the recognition or enforcement proceedings pending the outcome of annulment proceedings at the seat of the arbitration? What trends, if any, are suggested by recent decisions? What are the factors considered by courts to adjourn recognition or enforcement?
There is no explicit rule in Korea that regulates a situation in which an annulment proceeding is still pending at the seat of the arbitration and a proceeding seeking recognition or enforcement is simultaneously sought in Korea. The Korean court has the discretion to adjourn the recognition or enforcement proceeding when an annulment proceeding is pending at the seat of the arbitration. The court also has discretion to suspend the recognition or enforcement proceeding by not setting the next hearing date until the annulment proceeding has been finalised. In deciding whether to adjourn or suspend a proceeding to recognise or enforce an award, the court will consider factors such as the likelihood of annulment and the likelihood of a party suffering irreparable damages if the award is annulled at the seat of the arbitration after the court has recognised or enforced the award.
However, it is notable that a Korean court recognised and enforced a foreign arbitral award while an annulment proceeding as pending at the seat of the arbitration, in Finland. Despite the fact that the annulment proceeding was pending in Helsinki District Court, Changwon District Court swiftly decided to recognise and enforce the arbitral award (Decision No. 2017Kagi824 rendered on 24 August 2017).
17 If the courts adjourn the recognition or enforcement proceedings pending the annulment proceedings, will the defendant to the recognition or enforcement proceedings be ordered to post security? What are the factors considered by courts to order security? Based on recent case law, what are the form and amount of the security to be posted by the party resisting enforcement?
In the case of foreign awards governed by the New York Convention, it is possible to order security in accordance with Article VI of the Convention. However, it rarely happens in practice.
Recognition or enforcement of an award set aside at the seat
18 Is it possible to obtain the recognition and enforcement of an award that has been fully or partly set aside at the seat of the arbitration? If an award is set aside after the decision recognising the award has been issued, what challenges are available against this decision?
If an award had been set aside, one cannot obtain recognition and enforcement of the award. The grounds for setting aside an award under the KAA are the same as those for refusing recognition or enforcement and, therefore, enforcement of such an award will be refused.
Foreign awards governed by the New York Convention
According to Article V.1(e) of the New York Convention, the fact that the award has been set aside at the seat of the arbitration may qualify as a ground to reject the recognition or enforcement of the award. There is no record of a Korean court granting enforcement of such an award.
Foreign awards not governed by the New York Convention
Foreign awards not governed by the New York Convention should fulfil the requirements of recognition according to Article 217 of the KCPC. An award that has been set aside at the seat of the arbitration could be rejected for any of the following grounds: (1) the award is not a final and conclusive judgment; (2) recognition or enforcement of the award violates the public policy of Korea; and (3) there is no mutual guarantee.
Appealing the recognition or enforcement order when the award has been set aside after the decision of recognition or enforcement of the award
If the order recognising or enforcing the award has not been finalised, one can appeal to a higher court by way of immediate appeal or further appeal. If the recognition or enforcement order has been finalised, one can only apply for a quasi-retrial (Article 461, KCPC).
Service in your jurisdiction
19 What is the applicable procedure for service of extrajudicial and judicial documents to a defendant in your jurisdiction?
There is no particular procedure regarding service of extrajudicial documents.
As for the service of judicial documents, Korean courts handle service of process and arrange delivery of judicial documents.
Service is made directly upon the recipient by registered mail delivery to his or her residence or place of business. One may also obtain service of process by delivering the document to a representative or an employee of the recipient at his or her residence or office, delivering the document directly to the recipient at the court hearing, posting in the Official Gazette, or serving the party electronically by allowing the document to be accessed through the court website (Articles 187 to 196, KCPC).
Service out of your jurisdiction
20 What is the applicable procedure for service of extrajudicial and judicial documents to a defendant out of your jurisdiction?
Korea is a signatory to the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters (the 1965 Hague Convention), and to bilateral treaties regarding judicial assistance in civil and commercial matters with Thailand, Uzbekistan, Mongolia, China and Australia. In addition, the Act on International Judicial Mutual Assistance in Civil Matters (the Judicial Assistance Act) specifically provides for service if the relevant country is neither a member of the 1965 Hague Convention nor a party to any bilateral treaties with Korea. The Judicial Assistance Act can also be applied on a supplementary basis to service in Member States of the 1965 Hague Convention. Under certain circumstances, the KCPC is also applied, but usually on a supplementary basis.
Identification of assets
21 Are there any databases or publicly available registers allowing the identification of an award debtor’s assets within your jurisdiction?
Real estate, automobiles, vessels, airplanes and intellectual property rights are registered with a publicly available registry. Thus, ownership or security rights for such assets may be verified by checking the public record. However, as such registrations are not classified by the owner but are separately prepared for each property, one cannot identify the award debtor’s assets by checking the debtor’s name on the public records. Therefore, a creditor must first identify an award debtor’s assets by other means.
A creditor can hire an asset investigation company to identify a debtor’s assets registered on the publicly available registry, including real estate, automobiles, vessels, airplanes and intellectual property rights and the existence of any bank accounts. However, an asset investigation company cannot identify the actual value of such properties or the balance on a debtor’s bank account.
Information available through judicial proceedings
22 Are there any proceedings allowing for the disclosure of information about an award debtor within your jurisdiction?
According to Article 61 of the Korean Civil Execution Act (KCEA), when an enforcement order is finalised, the winning party may file a request for specification of the debtor’s property with the first instance court that has jurisdiction over the award debtor’s domicile, residence, office or property.
A proceeding on the request for specification of a debtor’s property will be a written proceeding, without a hearing date or questioning of the debtor.
When such a request is granted by the court and the court orders the debtor to specify the property, the court will also fix the date for specifying the property and ask the debtor to appear on that date. According to Article 64(2) of the KCEA, the debtor must appear before the court on the date set and submit a list of the properties subject to a compulsory execution, as well as the following matters: non-gratuitous transfer of immovable properties performed by the debtor within one year before the service of an order to specify the property; onerous transfer of properties other than the immovable properties performed by the debtor to the family or relatives within one year before the service of an order to specify the property; and gratuitous disposition in respect of property performed by the debtor within two years before the service of an order to specify the property.
The award debtor should also take an oath on the date of specifying property that the content of the property list is correct.
Availability of interim measures
23 Are interim measures against assets available in your jurisdiction? May award creditors apply such interim measures against assets owned by a sovereign state?
Three types of interim measures against assets are readily available through the courts: preliminary attachment, preliminary injunction on property under dispute and preliminary injunction to set preliminary status.
In addition, recent amendments to the KAA adopted all the interim measures available under the UNCITRAL Model Law on International Commercial Arbitration 1985, except for preliminary orders. Under Article 18-7 of the KAA, any party seeking recognition of an interim measure ordered by an arbitral tribunal may file an application with a court asking it to approve the interim measure. A party seeking to enforce an interim measure also may file an application asking a court to confirm the interim measure’s enforceability. Further, Article 18-8 of the KAA prescribes an exhaustive list of limited circumstances in which recognition or enforcement of an interim award may be refused.
Assets owned by the Korean government may be classified as either administrative or general property, depending on the purpose of use. Administrative property is for official or public use, while general property is any state property other than administrative property.
Interim measures against administrative property are not available, while interim measures against general property are permitted. For interim measures against general property, however, ‘an urgent need for preservation’ must be proven. If a creditor is seeking satisfaction of his or her monetary claim in a preliminary attachment against general property, as the debtor is the Korean government, the requirement of ‘an urgent need for preservation’ is not easily satisfied.
Administrative property of foreign states is subject to diplomatic privilege. Thus, it would be difficult to obtain any interim measures affecting such property. Theoretically, general property of a foreign state is subject to interim measures, but as with general property of the Korean government, it is difficult to satisfy the requirement of ‘an urgent need for preservation, if the creditor is making a monetary claim.
Procedure for interim measures
24 What is the procedure to apply interim measures against assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before applying interim measures? If yes, are such proceedings ex parte?
Prior court authorisation is not required to apply interim measures. As stated in question 23, there are three types of interim measures available in Korea.
Preliminary attachment is used to preserve a monetary claim. Assets subject to a preliminary attachment include real estate, accounts receivable and chattels. The requirements for a preliminary attachment are the probability of success in the case on merits and an urgent need for preservation of the assets to be attached.
To obtain a preliminary attachment, an applicant must file an application with the district court having jurisdiction over the location of the assets to be attached, or the court having jurisdiction over the merits. The attachment application will be reviewed and determined on an ex parte basis. Usually, the court will require the submission of security (in cash or surety bonds) before issuing an attachment order.
Preliminary injunction on property under dispute
This type of preliminary injunction is used to preserve a direct claim on properties under dispute (real estate, account receivables, chattels, and so on). The requirements are the probability of success in the case on the merits of the underlying dispute and an urgent need for preservation of the assets under dispute.
As with preliminary attachments, an applicant seeking a preliminary injunction must file an application with the court with jurisdiction over the merits of the underlying claim or the district court with jurisdiction over the location of the property under dispute. The application for injunction will be reviewed and determined on an ex parte basis, and usually the court will require the submission of security (in cash or surety bonds) before issuing an injunction order.
Preliminary injunction to set preliminary status
This type of preliminary injunction is used to preserve various claims when specific performance or injunctive relief is sought. The requirements are the probability of success on the merits of the underlying claim and an urgent need for preservation, including irreparable harm. The threshold for the second requirement is very high.
To obtain a preliminary injunction to set preliminary status, an applicant must file an application with the court with jurisdiction over the merits of the underlying claim or the district court with jurisdiction over the location of the objects in dispute. The application for this preliminary injunction will be determined after the court has heard from both parties. The court will usually require the submission of security (in cash or surety bonds) before issuing an injunction order. When ordering certain specific performance or injunctive relief, the court may also order indirect compulsory performance (i.e., an order to pay a daily monetary penalty for non-performance of an injunctive order, to compel compliance with the order).
Interim measures against immovable property
25 What is the procedure for interim measures against immovable property within your jurisdiction?
See question 24. Interim measures are categorised by purpose, not by the type of assets against which the interim measures are applied.
Interim measures against movable property
26 What is the procedure for interim measures against movable property within your jurisdiction?
See question 24.
Interim measures against intangible property
27 What is the procedure for interim measures against intangible property within your jurisdiction?
See question 24.
28 What is the procedure to attach assets in your jurisdiction? Is it a requirement to obtain prior court authorisation before attaching assets? If yes, are such proceedings ex parte?
When an enforcement order has become final and conclusive, or when there is a declaration of provisional execution, the prevailing party can get a writ of execution on an authentic copy of the order.
With the writ of execution, a party can commence a procedure for compulsory enforcement by commencing attachment proceedings on relevant assets. These proceedings are ex parte, but debtors are allowed to raise objections after attachment.
Attachment against immovable property
29 What is the procedure for enforcement measures against immovable property within your jurisdiction?
There are two types of enforcement measures against immovable property in Korea:
- compulsory auction is a way of obtaining satisfaction by selling the property; and
- compulsory administration is a way of obtaining satisfaction by taking advantage of the property (by using the property).
In practice, a creditor rarely exercises compulsory administration. A creditor may opt to have execution effected by either of these measures, or by concurrently exercising both. A court will attach the property when it orders the compulsory auction or the compulsory administration.
Attachment against movable property
30 What is the procedure for enforcement measures against moveable property within your jurisdiction?
An execution officer should, after attaching the movable property, make a sale of the attached objects by bidding or by means of a quoted auction, and deliver the proceeds to the creditor (Article 199, KCEA). However, seized money should be delivered directly to the creditor (Article 201, KCEA).
Attachment against intangible property
31 What is the procedure for enforcement measures against intangible property within your jurisdiction?
A winning party can attach an obligor’s accounts receivable by submitting an enforcement application to the court. The attachment order is then sent to a third party debtor of the obligor. As well as the attachment order, the winning party can seek either (1) an order for collection on behalf of the obligor (in which case the winning party will collect the obligor’s claim and report it to the court for distribution among creditors), or (2) an order for transfer of the claim (in which case the claim will be transferred to the winning party as a payment under the enforcement).
Enforcement against foreign states
32 Are there any rules in your jurisdiction that specifically govern recognition and enforcement of arbitral awards against foreign states?
There is no general provision under Korean law governing the recognition and enforcement of arbitral awards against foreign states.
Service of documents to a foreign state
33 What is the applicable procedure for service of extrajudicial and judicial documents to a foreign state?
Korean law does not address the applicable procedure for service to a foreign state (see question 17).
Immunity from enforcement
34 Are assets belonging to a foreign state immune from enforcement in your jurisdiction? If yes, are there exceptions to such immunity?
A foreign state (or assets belonging to it) is considered, in general, to be immune from the jurisdiction of Korean courts unless (1) the state explicitly consented to jurisdiction of the Korean courts or waived its immunity from jurisdiction in an international treaty, an arbitration agreement, any other written agreement, or by an oral statement made before the Korean courts, or (2) the proceedings relate to private acts (e.g., commercial transaction) and not sovereign acts (Supreme Court Decision No. 97Da39216 rendered on 17 December 1998).
In 2011, the Supreme Court (Decision No. 2009Da16766 rendered on 13 December) further opined that Korean courts:
can exercise jurisdiction with a foreign country as defendant, except when there are special circumstances, such as the judicial act in question falling under the scope of or bearing close relation to the sovereignty of the foreign country, thus posing the risk of unfairly interfering with the sovereignty of the foreign country.
Waiver of immunity from enforcement
35 Is it possible for a foreign state to waive immunity from enforcement in your jurisdiction? If yes, what are the requirements of such waiver?
It is possible for a foreign state to waive its immunity from enforcement in Korea, though there are no special requirements. A foreign state may waive its immunity from jurisdiction by explicitly expressing its waiver in a written arbitration agreement, in an international treaty, in any other written agreement, or in an oral statement.
 Sae Youn Kim is a partner and Andrew White is a senior foreign counsel at Yulchon.