Source Id: law-9780198755432-chapter-1-div4-22ReferencesModel Law on International Commercial Arbitration 2006 (United Nations Commission on International Trade Law [UNCITRAL]) UN Doc A/61/17, Annex I
1.22 This book seeks to provide a comprehensive introduction to the arbitration-related judgments rendered by Korean courts. It analyses how Korean judges have interpreted the New York Convention and Korean arbitration law. It introduces the global arbitration community to a jurisdiction that has developed a reservoir of jurisprudence and scholarship, but has been inaccessible to and thereby underappreciated by non-Korean speakers. A UNCITRAL Model Law jurisdiction, Korea offers a civil law perspective that can supplement the jurisprudence from better known common law jurisdictions in the Asia-Pacific area, such as Hong Kong, Singapore, Australia, and India. Many cases are being revealed for the first time. Korean courts only recently began to disclose lower court cases. As a result, many earlier cases, particularly before the 1970s, are not available.
1.23 Covering almost 150 cases, the book includes the full text of almost all the cases rendered in Korea, offers commentaries from treatises and scholarship by Korean specialists, and posits questions and problems for academic inquiry. The survey of arbitration jurisprudence confirms that Korea is one of the largest jurisdictions in Asia and has amassed a sophisticated body of case law. This book hopes to contribute to the discourse on international arbitration jurisprudence. As a general matter, based upon an analysis of available cases from 1970–2015, less than 2 per cent of KCAB cases have led to court proceedings seeking recognition or enforcement or set aside This suggests that award debtors voluntarily complied with the arbitral awards in the remaining cases and award creditors consequently did not find a need to pursue court action.
1.24 Two fundamental challenges compound the difficulty involved in writing a book that analyses how Korean courts have interpreted and applied arbitration law. The first is the translation of the Korean language into English, given that both languages share little linguistic commonality. The second issue concerns converting Korean legal principles, concepts, terms, and expressions that primarily derive from German civil law into English, particularly for the benefit of those steeped in the common law tradition. In the face of this formidable task, the book no doubt has many shortcomings. All errors are mine alone.
1.25 All Supreme Court judgments available as of 1 June 2016 have been covered and all High Court judgments, excluding those that have been appealed to the Supreme Court, have been included. While most District Court judgments that have not (p. 10) been appealed have been included, some have been omitted due to space limitations. Seoul’s five district courts, the Seoul Central District Court, Seoul Northern District Court, Seoul Western District Court, Seoul Southern District Court, and Seoul Eastern District Court, are all referred to as ‘Seoul District Court’.25 The other unfortunate consequence of including as much of the case law as possible is that a vast amount of scholarly references and research material on Korean arbitration cases cannot be provided in detail. This will hopefully be supplemented in a future edition.
1.26 The book is structured into eleven chapters for use as an academic course over a full semester, particularly for use at law schools in common law jurisdictions.
1.27 In addition, for the benefit of readers, the following conventions have been followed:
1.28 The Korean language is frequently written in the passive voice, often with the subject implied. For the benefit of English readers, the text has been changed to use the active voice and the subject of a sentence has been added if it provides clarity. Korean judgments also frequently use double negatives. For the benefit of English readers, this has usually been changed to a positive statement.
1.29 Korean court judgments, particularly older ones, are drafted in long sentences that can often take up an entire page. For the benefit of readers, long sentences have been broken down and paragraphs have been added. The Korean Supreme Court has recently announced that it will encourage judges to shorten sentences and include more punctuation.
1.30 Korean cases, particularly older ones, usually do not disclose the names of parties. When referring to a case, courts only provide the citation number, date, and relevant court. For the benefit of readers, particularly common law lawyers who are accustomed to citing cases by the names of parties, the names of the parties have been provided to the extent that they have been disclosed, particularly through such public sources as the Korea Stock Exchange or foreign countries. Where the parties could not be identified, a short description of the subject matter of the case is included, such as ‘Iron Pipes Case’ or ‘Frozen Squid Case’. For frequently cited cases, the name of the plaintiff is used in subsequent citations within the same chapter. Where the same plaintiff has brought many cases, such as ‘Republic of Korea’, then the defendant’s name has been used instead.
1.31 All court judgments, particularly lower court ones, begin with a factual overview of the case. To the extent relevant, this factual part has been summarized at the beginning of each case. Judgments related to foreign arbitral awards will always (p. 11) begin with a description of how Korea is a member of the New York Convention. Given Korea’s reservations, the court will then make a determination on whether the award was rendered in a member state and whether it involves a commercial dispute. Since this is duplicative for all cases, unless there is something special about the case or analysis, this section of judgments has been omitted.
1.32 Laws are stated as of the effective date, not the date of promulgation, with the effective year added before the name of the statute (e.g. ‘2016 Arbitration Act’).
1.33 When a citation for a counteraction also exists in a case, only the citation for the principal action is provided.
1.34 Unless special circumstances exist, all Korean names have been romanized according to the system proclaimed by the Korean government, which can be found at the National Institute of Korean Language.26
1.35 Supreme Court judgments use the notation ‘Da’, High Court judgments ‘Na’, and District Court judgments ‘Gadan’ if a single judge and ‘Gahap’ if a three-member bench. Korean court case numbers are stated consecutively without spacing, such as ‘8888Gahap7777’ or ‘2222Da9999’. For readability purposes, a space has been added before and after the court notations, to make the case citations appear as ‘8888 Gahap 7777’ or ‘2222 Da 9999’.
1.36 Currencies have been abbreviated as KRW (Korean won), USD (US dollars), SGD (Singapore dollars), EUR (euros), GBP (UK pound), and JPY (Japanese yen).
1.37 For readers’ convenience, all Korean currency figures include the equivalent currency in US dollars in parenthesis, at the rate of 1 USD to 1150 KRW.
1.38 Korean statutes consist of Articles, Paragraphs and Subparagraphs, and Items. ‘Article 31, Paragraph 1, Subparagraph 3, Item a’ is summarized as ‘Article 31(1)(3)(a)’.
1.39 The metric equivalent has been included in parenthesis for Korean measurements, such as ‘pyeong (3.3 square metres)’.
1.40 Unless a party, all references to the ‘Republic of Korea’ have been simplified to ‘Korea’. Similarly, the United States (US) and United Kingdom (UK) have been abbreviated.
1.41 Major arbitration institutions such as the American Arbitration Association (AAA), American Film Marketing Association (AFMA), Grain and Feed Trade Association (GAFTA), International Chamber of Commerce (ICC), Korean (p. 12) Commercial Arbitration Board (KCAB), Singapore International Arbitration Centre (SIAC), Japan Commercial Arbitration Association (JCAA), Hong Kong International Arbitration Centre (HKIAC), and Tokyo Maritime Arbitration Commission (TOMAC) are spelled out once per chapter and thereafter simplified to their acronyms.
1.42 ‘New York Convention’ is used instead of the full citation, ‘Convention on the Recognition and Enforcement of Foreign Arbitral Awards (in force 9 May 1973, Multilateral Treaty No. 471, promulgated 19 February 1973)’.
1.43 In the interests of gender neutrality, even-numbered chapters use female pronouns and odd-numbered chapters use male pronouns. Similarly, in the translation of the Arbitration Act provided in the Appendix, even-numbered articles use female pronouns and odd-numbered articles use male pronouns.
1.44 To the extent known, the Western name or commonly used initials of Koreans cited in the book have been added.