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Copyright © International Chamber of Commerce (ICC). All rights reserved. ( Source of the document: ICC Digital Library )
This ICC Guide to National Rules of Procedure for Recognition and Enforcement of Foreign Awards under the New York Convention is the third, updated edition to mark the 60th anniversary of the New York Convention. Country Answers, which reflect the state of law at 1 October 2018, have been provided in response to a Questionnaire drawn up by a task force of the ICC Commission on Arbitration and ADR.
A. The Contracting State and the New York Convention
1. Name of Contracting State (also specify jurisdiction(s), if relevant)
The Republic of Korea (‘Korea’).
2. Date of entry into force of the New York Convention
9 May 1973.
(Source: Treaty No. 471 (New York Convention), heading.)
3. Has any reservation been made under Art. I(3) of the New York Convention regarding:
(a) reciprocity?
Korea made a reciprocity reservation under the New York Convention at the time of signing. However, pursuant to Art. 39(2) of Korean Arbitration Act, awards rendered in non-Contracting States can still be recognized and enforced in Korea under certain conditions prescribed in domestic procedural law.
(Source: Korean Arbitration Act, Art. 39, para. 2; Civil Procedure Act, Art. 217; Civil Enforcement Act, Art. 26, para. 1 and Art. 27.)
(b) commercial relationships?
Korea made a ‘commercial relationships’ reservation at the time of signing the New York Convention.
(Source: Treaty No. 471 (New York Convention), Art. 1(3).)
4. In addition to arbitral awards made in the territory of another State, the New York Convention (Art. I(1)) also applies to arbitral awards not considered as domestic awards in the State where recognition and enforcement are sought. Are there any awards rendered in your country that are not considered as domestic awards such that the New York Convention and the answers to this Questionnaire are applicable to them?
Awards rendered in Korea that are not considered as domestic awards, primarily because they do not involve a Korean interest (e.g. because (i) the award does not affect any Korean parties or interests, or (ii) Korean procedural laws have not been applied to the arbitration proceeding), could still be recognized and enforced under the New York Convention in Korea.
(Source: Treaty No. 471 (New York Convention), Art. 1(1); Court Practice, Vol I, Civil Enforcement, p.187)
B. National sources of law
5. What specific sources of law are applicable to recognition and enforcement of foreign awards (e.g. statutes, regulations, codes, directives, other legal instruments)?
C. Limitation periods (time limits)
6.
(a) Is there a limitation period (time limit) applicable to the commencement of legal proceedings for recognition and enforcement of foreign awards?
Yes, legal proceedings for the recognition and enforcement of an arbitral award (including foreign awards) must be initiated within ten years from the date of the award.
(Source: Arbitration Act, Art. 35; Civil Act, Art. 165 para. 2.)
(b) If yes, what is the applicable limitation period (time limit) and when does it start running?
Ten years from the time the award was rendered.
D. National courts and court proceedings
7. What authority or court has jurisdiction over recognition and enforcement of foreign awards?
The following trial courts in Korea have jurisdiction:
(Source: Arbitration Act, Art. 7 para. 4.)
8. What requirements, if any, must be met for the authority or court to accept jurisdiction over recognition and enforcement of foreign awards (e.g. domicile or assets of respondent in the jurisdiction, etc.)?
For the Korean courts to have jurisdiction, there must be:
9. Is the first decision granting or denying recognition and enforcement obtained through ex parte or inter partes proceedings?
The first decision granting recognition and enforcement is obtained through inter partes proceedings.
(Source: Civil Procedure Act, Art. 134; Arbitration Act, Art. 37, para. 4.)
10.
(a) Is the first decision granting or denying recognition and enforcement subject to any form of appeal or recourse?
Yes.
(b) How many levels of appeal or recourse are available against this decision?
Two. A decision of the trial court can be appealed to the court of appeal. A decision of the court of appeal
can be appealed, with leave, to the Supreme Court. In principle, only errors in law are appealable to the Supreme Court, not errors in fact.
(Source: Arbitration Act, Art. 37 para. 6; Civil Procedure Act, Arts. 442, 443, 444.)
11. What is the earliest stage in legal proceedings for enforcement of foreign arbitral awards at which a party can obtain execution against assets (i.e. party actually obtains possession of assets as opposed to simply freezing assets)?
An order recognizing an arbitration award does not per se make the arbitral award enforceable, and a separate enforcement order is necessary. An award may be executed against assets after the court order for enforcement becomes final. An appeal has to be filed with the relevant court within two weeks from receipt of the written court judgment, after which the judgment becomes final. Alternatively, the judgment becomes final when the parties declare their right to appeal as waived within two weeks from the judgment.
(Source: Civil Execution Law, Art. 24; Civil Procedure Act, Arts. 396, 425 and 498.)
E. Evidence required
12.
(a) What evidence must be supplied for recognition and enforcement of foreign awards (e.g. arbitral award, contract containing the arbitration clause, affidavits, witness statements, etc.)?
The following documents need to be supplied to seek recognition and enforcement of foreign awards: (i) the authentic copy or copy of the arbitral award and (ii) a Korean translation of the arbitral award if the arbitral award is in a foreign language. Contrary to the New York Convention, submission of the original arbitral agreement is not required.
(Source: Arbitration Act, Art. 37, para 3.)
(b) Is it necessary to provide the entire document or only certain parts (e.g. entire contract or only arbitration clause)?
The arbitral award has to be submitted in its entirety.
(c) Are originals or duly certified copies required?
Either originals or copies are sufficient.
(d) How many originals or duly certified copies are required?
The court requires one copy for each respondent, plus one additional copy for the court.
(Source: Civil Procedure Regulations, Art. 48.)
(e) Does the authority or court keep the originals that are filed?
No. In practice, the court returns the originals to the person who submitted the originals as soon as it becomes unnecessary for the court to retain the documents or when a case closes.
(Source: Rules for Articles in Civil Custody, Art. 7, para. 1.)
13.
(a) Is it necessary to provide a translation of the documents supplied?
(b) If yes, into what language?
Korean.
(c) Is it necessary for the translations to be certified and, if yes, by whom (official or sworn translator, diplomatic or consular agent (of which country?) or some other person)?
No. Korean courts hold a generous view on translation of arbitral awards. According to a precedent, Korean court clarified that translations of arbitral award do not necessarily have to meet the strict conditions required in Art. 4 of the New York Convention.
(Source: Arbitration Act, Art. 37, para 3; Supreme Court decision 2004Da20180, 10 Dec. 2004.)
(d) Is it necessary to provide a full translation of the documents or only a translation of certain parts (e.g. entire award or only part setting forth the decisions; entire contract or only arbitration clause)?
The applicant must provide translations of the arbitral award in its entirety.
F. Stay of enforcement
14.
(a) Can the authority or court stay legal proceedings for recognition and enforcement pending the outcome of an application to set aside or suspend the foreign award before the competent authority referred to in Art. V(1)(e) of the New York Convention?
Yes. Although there is no explicit rule in Korea that regulates the situation where a setting aside proceeding is pending, in practice, Korean courts have the discretion to adjourn the proceedings for recognition and enforcement without prejudice.
(Source: Treaty No. 471 (New York Convention), Art. 6.)
(b) On what other grounds, if any, can the authority or court stay legal proceedings for recognition and enforcement (e.g. forum non conveniens)?
There are no other grounds under Korean law to stay legal proceedings for recognition and enforcement.
(c) Is the granting of a stay of legal proceedings for recognition and enforcement conditional on the provision of security?
Under the New York Convention, Korean courts may order the provision of security when granting a stay of legal proceedings.
G. Confidentiality
15.
(a) Do the documents filed in legal proceedings for recognition and enforcement form part of the public record? If yes, can any steps be taken to preserve the confidentiality of such documents?
In principle, documents filed in legal proceedings for recognition and enforcement do not form part of the public record. These documents can be browsed or copied under limited conditions by:
However, the applicant could file a petition with the court, asking for stricter confidentiality over certain documents for the protection of trade secrets and sensitive private information.
(Source: Civil Procedure Act, Arts. 162, 163.)
(b) If there are hearings on recognition and enforcement, are such hearings confidential? If not, can steps be taken to maintain the confidentiality of the legal proceedings?
Inter partes hearings are generally open to the public. However, the judge may decide that such hearings shall be confidential when national security, public peace and order, or good public moral is at stake.
(Source: Constitution of the Republic of Korea, Art.109; Court Organization Act, Art.57.)
(c) Are judgments on recognition and enforcement published? If yes, can steps be taken to remove the names of the parties or avoid publication of confidential information (such as business or State secrets)?
Judgments on recognition and enforcement could be published, where the court believes the judgment has value as precedent. An application not to disclose the names of parties involved or the contents of trade secrets etc. will be scrutinized by the court, which exercises its discretion in this regard.
(Source: Civil Procedure Act, Art. 163.)
H. Other issues
16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?
The revised Korean Arbitration Act explicitly provides for the recognition and enforcement of interim arbitral awards. The recognition and enforcement of partial arbitral awards are not prescribed in the Arbitration Act, but Korean courts have rendered decisions which evidence their understanding that partial awards can be enforced or annulled.
(Source: Arbitration Act, Arts. 18-7, 18-8; Civil Enforcement Act; see e.g. Seoul District Court 2002Gahap46725, 2 April 2003.)
17. When, if ever, can a party obtain recognition and enforcement of non-monetary relief in foreign arbitral awards (e.g. order requiring a party to deliver up share certificates or other property)?
As a general rule, it is possible to obtain recognition and enforcement of foreign awards granting non-monetary relief.
(Source: Civil Execution Law, Arts. 257-263.)
18. When, if ever, can a party obtain recognition and enforcement of only part of the relief granted in foreign awards?
In most cases, a recognition and enforcement order will cover entire foreign awards. However, partial recognition and enforcement could be granted if:
(Source: Treaty No. 471 (New York Convention), Art. 5(1)(c), Arts. 5(2)(a) and (b).)
19. When, if ever, can a party obtain recognition and enforcement of foreign awards which have been set aside by the competent authority referred to in Art. V(1)(e) of the New York Convention?
In theory, it is possible for Korean courts to proceed with the recognition and enforcement action regardless of whether a foreign award has been set aside by the competent authority, given that under Art. V(1)(e), the fact that an award has been set aside at its seat qualifies as a ground under which the court ‘may’ refuse enforcement. However, the prospect of a Korean court proceeding to enforce an award that has already been set aside at its seat is very low, and Korean courts will do so only in exceptional circumstances.
(Source: Treaty No. 471 (New York Convention), Art. 5(1)(e).)
20. Are there any other procedural or practical requirements relating to recognition and enforcement of foreign awards which are worth mentioning (e.g. unusually high court costs, filing fees, stamp duties, obligation to post security as a condition for seeking recognition and enforcement, obligation to identify the assets that will be the object of enforcement, etc.)?
When filing its application for an enforcement order, the plaintiff will need to pay stamp duty amounting to a certain percentage of the amount claimed (i.e. the amount granted in the arbitral award sought to be enforced).
In addition to stamp duty, if the plaintiff is not resident in Korea, the defendant may request the court to order the plaintiff to post with the court a deposit as security to cover the defendant’s legal fees and costs (the amount of which will be determined by the court at its discretion) in the event that the defendant prevails in the case (i.e. successfully opposes plaintiff’s application for enforcement). Such deposit is refundable when the case is finalized, after deduction of any legal fees and costs that the court may order the plaintiff to bear.
Finally, other minor court costs (e.g. a fee for serving court documents on the parties) may be imposed.
(Source: Act on the Stamps Attached for Civil Litigation, Art. 1; Civil Procedure Act, Art. 117.)
Country Rapporteur: Kap-You (Kevin) Kim