1 A review of this case can be found in Kun Hee Cho, ‘Donghae Pulp Co. Ltd. v Majestic Woodchips Inc., Supreme Court of Korea, 26 February 2003’, A contribution by the ITA Board of Reporters, Kluwer Law International and Kay-Jannes Wegner and Kun Hee Cho, ‘Donghae Pulp Co. Ltd. v Majestic Woodchips Inc., Supreme Court of Korea, 26 February 2003’, A contribution by the ITA Board of Reporters, Kluwer Law International.
2 Author’s note: A parallel case is Merck Santé Co., Ltd. v Whanin Pharma Co., Ltd, 2004 Gahap 3145, 21 October 2005 (Seoul District Court).
3 Majestic Woodchips (I). Author’s note: see para. 10.02.
4 Author’s note: in parenthesis, the court confirmed that France was a member country of the New York Convention and the dispute regarding the Confidentiality Agreement was clearly a commercial dispute.
5 (In parenthesis in the text) The obligation that Plaintiff seeks to confirm the non-existence of through this action overlaps with the obligation established under the Arbitral Award. Yet, it is difficult to find, based solely on this, that the action herein should be considered an action to set aside the Award.
6 Author’s note: this most likely should be ‘Defendant’ and not ‘Plaintiff’.
7 The Ministry of Foreign Affairs’ translation of this section provided ‘the award has been set aside or suspended by a competent authority of the country in which that award was made or under the law of that country’, but we translated it as above because the original English version provides ‘the award … has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made’.
8 Author’s note: Gestaltungsklage in German.
9 (In parenthesis in the text) Article 13(1), if the old 1998 Arbitration Act applies.
10 Author’s note: Article 15 was also challenged. This case was brought under the 1993 Arbitration Act. The provisions in Article 4(3) and Article 15 that were the subject of this challenge no longer exist. A related case is Sungrim Industries Inc. v Mirabo Construction, 23 June 2000, 98 Da 55192 (Supreme Court).
11 Author’s note: in Korea, a separate Constitutional Court primarily determines the constitutionality of legislation, similar to the Bundesverfassungsgericht in Germany and Conseil Constitutionnel in France.
12 Article 4(3): ‘If the designation of arbitrators is not stipulated in an arbitration agreement relating to a legal relation caused by a commercial transaction (hereinafter “commercial arbitration”), or if the intention of the parties concerned is not clear, it shall be presumed to be governed by the commercial arbitration rules of incorporated associations designated by the Minister of Trade, Industry and Energy, notwithstanding the provisions of the preceding paragraph.’ 1993 Arbitration Act. Author’s note: Article 4 was substantially amended with the adoption of the Model Law and corresponds to Article 12 of the 2016 Arbitration Act.
13 Article 15: ‘Once an enforcement judgment is given, any action to set aside an arbitration award may be instituted only if the reason therefor is a ground under Article 13(1)(5); Provided, That it shall be limited to only when either of the parties concerned clearly explains that they could not bring the claim based on those grounds for a set aside during the procedure of the enforcement judgment due to no fault of their own.’ 1993 Arbitration Act.
15 Author’s note: Article 422 corresponds to Article 451 under the 2015 Civil Procedure Act.
16 Gary Born, International Commercial Arbitration (Kluwer 2014) 3339.
17 The text in quotations is a direct citation from the arbitral award.
19 Author’s note: PEGK was a joint venture established by Defendant to do business in Iran.
20 Author’s note: PESC was a wholly-owned subsidiary established by Defendant to serve as its agent in Iran.
21 A review of this case can be found in Kay-Jannes Wegner and Kun Hee Cho, ‘Republic of Korea v Shinsung Construction Co., Supreme Court of Korea, 12 March 2004’, A contribution by the ITA Board of Reporters, Kluwer Law International.
23 Commercial Act, Act No. 10696 of 24 Nov. 2011. Article 341 (Acquisition of Treasury Shares) Outside of the following circumstances, a company may not acquire its own shares through its own account:
24 Refer to such cases as 2001 Da 44109, 16 May 2003 (Supreme Court); 2009 Da 23610, 28 April 2011 (Supreme Court).
25 Adviso N.V. v Korea Overseas Construction Corp., 93 Da 53054, 14 February 1995 (Supreme Court) (hereafter Adviso).
26 Author’s note: from February 2008 to March 2013, the name of what is now the Minister of Trade, Industry and Energy.
27 Author’s note: a footnote quoting the relevant provisions in the Foreign Investment Promotion Act was deleted.
28 Author’s note: the first agreement was subsequently redrafted on 6 July and 14 July, and the second agreement was redrafted on 29 August.
29 Author’s note: a footnote quoting the relevant provisions in the 2008 Foreign Exchange Transaction Act was deleted.
30 Author’s note: should have referred to the Minister of Knowledge Economy.
33 The case 2009 Da 20628, 11 March 2010 (Supreme Court) cited by Defendant provides that ‘the building that the constructor had to complete was an important security for the PF lender’s loan and intermediate payment loan and the PF lender needed to contract with a constructor with a high degree of credibility who could responsibly complete construction of the building within the provided period’. We do not find it convincing that it determines a constructor’s obligation to complete construction is simply a guarantee obligation.
34 Author’s note: this comes from Adviso (n 25) but is not cited.
36 Born, International Commercial Arbitration, 3334–5.
37 Submitted after the oral pleadings, the memorial was not separately pleaded, but, because it argues that grounds to set aside exist under Article 36(2)(2)(b) of the Arbitration Act, we decide upon it here as well.
38 See the last section of Appendix that contains the 2016 Arbitration Act for the full text of the old provision and applicable provision from the Civil Procedure Act.
39 Yong-Geun Son and Howon Lee, ‘Effect of, and Recourse against, Arbitral Awards’ in Byeong-Hwoe Yang (ed), Arbitration Act Annotated (KCAB 2006) (hereafter Son and Lee, ‘Effect’), 215–16. See Section B in Chapter 8, from para. 8.22.
40 Author’s note: Article 13 was deleted from the Arbitration Act with the adoption of the Model Law in 1999. The reference to Article 442 of the Civil Procedure Act appears to be a misprint of Article 422, which corresponds to Article 451 under the 2015 Civil Procedure Act.
41 Son and Lee, ‘Effect’, 216–17; Mok, Commercial Arbitration (Pakyoungsa 2011), 258.
42 Article 1065(6), 2015 Dutch Code of Civil Procedure. Although not a grounds for annulment, under Article 49(2) of the ICSID Convention (Convention on the Settlement of Investment Disputes between States and Nationals of Other States), upon the request of a party, a tribunal may decide any question which it had ‘omitted to decide’ in the award.
43 Author’s note: 42,692 square metres. In Korea, one pyeong equals 3.3 square metres.
45 Youngchang Silup Co. v Sky High Fashions Pty, 88 Daka 183, 13 June 1989 (Supreme Court), and Aluminum of Korea Limited v Dongyang Marshall Co., 98 Da 901 July 10, 1998 (Supreme Court) (hereafter Aluminum of Korea).
46 Author’s note: paraphrased from Aluminum of Korea (n 45).
47 Author’s note: Die Dispositionsmaxime in German.
48 Dae Yun Cho, ‘Arbitral Awards’ in Byeong-Hwoe Yang (ed), Arbitration Act Annotated (KCAB 2006) 133; Son and Lee, ‘Effect’, 223–4; Mok, Commercial Arbitration, 264–5.
49 Son and Lee, ‘Effect’, 224.