This Country Answer reflects the state of the law as of 31 December 2012. Please refer to the explanations in the chapter entitled Preliminary Note.

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, awards rendered in non-Contracting States could still be recognized and enforced in Korea.

(Sources: of Arbitration Law, Art. 39, para. 2; Civil Procedure Law, Art. 217; Civil Enforcement Law, Art. 26, para. 1 and Art. 27.)

(b) commercial relationships?

Korea made a reservation for commercial relationships 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 the Republic of Korea that are not considered as domestic awards ('International Awards rendered in Korea'), mainly because they do not involve Korean interest (e.g. because (i) none of the parties in the arbitration are Korean, or (ii) the award does not affect any Korean parties or interests at all, or (iii) Korean procedural laws have not been applied to the arbitration proceeding), could still be recognized and enforced under the New York Convention in Korea. In the answers to this Questionnaire, International Awards rendered in Korea and awards rendered in the territory of another State will be collectively referred to as 'Foreign Awards'.

(Source: Treaty No. 471 (New York Convention), Art. 1(1).)

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)?

Arbitration Law, Art. 2 of which provides that the provisions of any treaties or conventions in effect, to which Korea is a signatory, shall remain valid and enforceable, regardless of the provisions of the Arbitration Law.

(Sources: Arbitration Law, Art. 2; Treaty No. 471 (New York Convention), Art. 1(1).)

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.

(Sources: Arbitration Law, Art. 35; Civil Code, Art. 165 para. 1.)

(b) If yes, what is the applicable limitation period (time limit) and when does it start running?

Ten years from the time the award became binding. An award is deemed binding when it cannot be challenged by any ordinary means of recourse.

(Sources: Arbitration Law, Art. 35; Civil Code, Art. 165 para. 1.)

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: (i) the court agreed upon in the arbitration agreement; (ii) the court in whose jurisdiction the place of arbitration is situated in the case of International Awards rendered in Korea; (iii) the court in whose jurisdiction assets owned by the respondent are located; or (iv) the court in whose jurisdiction the respondent's address, place of business or last known address or place of business are located.

(Source: Arbitration Law, 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.)?

See Q.7 above. Thus, for the Korean courts to have jurisdiction, there must be: (i) agreement by the parties on a Korean court with jurisdiction over recognition and enforcement of the arbitral award; or (ii) in respect of an arbitration giving rise to an International Award rendered in Korea, jurisdiction of a Korean court over such arbitration under Korean law; or (iii) assets owned by the respondent in Korea; or (iv) an address, place of business or last known address or place of business of the respondent in Korea.

(Source: Arbitration Law, Art. 7 para. 4.)

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.

(Sources: Civil Procedure Law, Art. 134; Arbitration Law, Art. 37.)

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: Civil Procedure Law, Arts. 390 and 422.)

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)?

The judgment recognizing an award may be executed against assets immediately after the court order for recognition and enforcement becomes final. An appeal has to be filed with the relevant court within 2 weeks after receipt of the written judgment from the court, after which the judgment becomes final. The parties may finalize the judgment by relinquishing their respective rights to appeal.

Provisional execution may be granted at the discretion of the court with jurisdiction. When applying for provisional execution, the applicant has to provide prima facie evidence showing that execution of the final judgment may become extremely difficult or impossible if the court does not grant a provisional execution order prior to the issuance of final judgment.

(Sources: Civil Execution Law, Arts. 24, 277 and 280; Civil Procedure Law, Arts. 396, 423, 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 evidence must be submitted to the court: (i) the original or a certified copy of the arbitral award; (ii) the original or a certified copy of the arbitration agreement; and (iii) certified Korean translations of the arbitral award and the arbitration agreement.

(Source: Arbitration Law, Art. 37.)

(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. However the court may accept relevant sections of the contract containing the arbitration agreement unless the respondent raises an objection.

(Source: Arbitration Law, Art. 37.)

(c) Are originals or duly certified copies required?

Either originals or duly certified copies are sufficient.

(Source: Arbitration Law, Art. 37.)

(d) How many originals or duly certified copies are required?

The court requires one original or duly certified copy for each respondent, plus one additional copy for the court.

(Source: Civil Procedure Law, Art. 255; Civil Procedure Regulations, Art. 48.)

(e) Does the authority or court keep the originals that are filed?

Yes. The court keeps the original award if submitted, unless a written and reasoned request for return of the original is submitted to the judge.

(Source: Civil Procedure Law, Art. 255.)

13.

(a) Is it necessary to provide a translation of the documents supplied?

Yes.

(Source: Arbitration Law, Art. 37.)

(b) If yes, into what language?

Korean.

(Source: Arbitration Law, Art. 37.)

(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)?

The translations have to be certified by an official, sworn translator or by a diplomatic or consular agent in Korea.

(Source: Arbitration Law, Art. 37.)

(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 all documents which are submitted-this includes translations of the arbitral award in its entirety and of relevant sections of the contract containing the arbitration agreement (unless the respondent raises an objection).

(Source: Arbitration Law, Art. 37.)

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. If an application to set aside or suspend a Foreign Award is made by the respondent before the competent authority, the Korean court may dismiss the proceedings for recognition and enforcement without prejudice or order their stay.

(Sources: Arbitration Law, Arts. 2 and 35; Treaty No. 471 (New York Convention), Art. 5(1)(e).)

(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?

If granted, the court may require the provision of security.

(Source: Treaty No. 471 (New York Convention), Art. 6.)

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?

Documents filed in legal proceedings for recognition and enforcement do form part of the public record. At present, there are no steps that could be taken to preserve the complete confidentiality of such documents. 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 Law, Art. 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, if all parties agree, the judge may decide that such hearings shall be confidential.

(Source: Civil Procedure Law, Art. 163.)

(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 Law, Art. 163.)

H. Other issues

16. When, if ever, can a party obtain recognition and enforcement of interim or partial foreign awards?

In principle, it is possible to obtain recognition and enforcement of interim or partial Foreign Awards. In practice, however, a claimant may have great difficulty overcoming a respondent's objection that the interim or partial Foreign Award has no binding effect.

(Source: Civil Procedure Law, Arts. 200 and 201.)

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.

(Sources: Civil Procedure Law, Arts. 200 and 201; Civil Execution Law, Art. 257.)

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 given if: (i) a certain portion of the award cannot be subjected to arbitration in Korea; (ii) a certain portion of the award violates Korean public policy; and (iii) such portion of the award is legally separable from the rest of the award.

(Source: Treaty No. 471 (New York Convention), Art. 5(1)(c), Art. 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 the fact that a foreign award has been set aside by the competent authority. However, the chances of this happening in practice are very low, and Korean courts will do so only in exceptional circumstances.

(Sources: Arbitration Law, Arts. 2 and 35; 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 of the arbitral award sought to be enforced). For example, for a claim of 1 billion Korean Won (approx. USD 900,000 at the current exchange rate) or more, the statutory maximum rate of stamp duty is 0.35% of the amount claimed.

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.

(Sources: Stamp Duty Law for Civil Actions etc., Arts. 1 and 13; Civil Procedure Law, Art. 254.)

Country Rapporteur:

Jay Ki Lee