1 Author’s note: this constitutes one of the rare cases in which the KCAB was a party to court proceedings.
2 Author’s note: see also the appeal to the Seoul High Court, 2014 Na 29096, 1 January 2015, which is covered in para. 6.64. The language issue has been clarified under the 2016 KCAB Rules.
3 Author’s note: Article 17(6) has been revised in the 2016 Arbitration Act to include when a tribunal rules as a preliminary question that it does not have jurisdiction.
4 Article 17(3) of the 2013 Arbitration Act.
5 Article 17(3) of the 2013 Arbitration Act.
6 Article 17(5) and Article 17(6) of the 2013 Arbitration Act.
7 Author’s note: this refers to ‘competence-competence’.
8 Article 20 of the 2013 Arbitration Act.
9 Article 20 of the 2013 Arbitration Act; Article 50 of the Arbitration Rules.
10 Majestic Woodchips, Inc. v Donghae Pulp, 2006 Da 20290, 28 May 2009 (Supreme Court) (hereafter Majestic Woodchips (II)).
11 Author’s note: AA, who was an appraiser or expert adviser appointed by the tribunal, prepared the Opinion.
12 Author’s note: the phrase ‘and furnishes such proof then the award may be set aside’ is paraphrased from the provision but is mistakenly included in quotations in the text of the judgment.
13 GKN International Trading v Kukje Sangsa (II), 89 Daka 20252 (Supreme Court) (hereafter GKN (II)).
14 Author’s note: the lower court judgment denied enforcement of the award against the head of Defendant in his individual capacity, but it appears that this aspect of the case was not appealed. 98 Gahap 102529, 27 August 1999 (Seoul District Court).
15 Author’s note: Article 217(2) under the current version, Act No. 13521 of 1 January 2016.
17 Author’s note: 1976 version of the UNCITRAL Arbitration Rules. Quotations have been added.
18 Author’s note: wording in parenthesis was added in the judgment but does not appear in the original AAA Procedures.
19 (In parenthesis in the text) At the same time, the Arbitration Act lists the grounds to set aside an arbitral award in a limited fashion and Plaintiff’s assertion that in essence the substance of the arbitral award is unjustified is not a lawful set aside grounds.
20 Author’s note: factual details concerning this case are available in Cason’s financial disclosure statements: <http://kind.krx.co.kr>.
22 Author’s note: both provisions remained unchanged in the 2016 Arbitration Act.
24 Author’s note: Chartered Institute of Arbitrators.
25 Kang-Bin Lee and Jeong-Il Seo, ‘Arbitration Procedure’ in Byeong-Hwoe Yang (ed), Arbitration Act Annotated (KCAB 2006) 91–2.
26 Author’s note: a review of this case can be found in Kay-Jannes Wegner, ‘Trocellen GmbH v Youngbo Chemical Co., Ltd., High Court of Seoul, 3 April 2012’, A contribution by the ITA Board of Reporters, Kluwer Law International.
29 Author’s note: although not cited, this text comes from GKN International Trading v Kukje Sangsa (II), 89 Daka 20252, 10 April 1990 (Supreme Court) and Adviso N.V. v Korea Overseas Construction Corp, 93 Da 53054, 24 February 1995 (Supreme Court).
30 At best, we find that ‘Entreprise Portuaire de Skikda’ could be translated as ‘Skikda (state-owned) Maritime Company’.
31 Defendant did not explicitly argue these points even during the oral hearing herein.
32 2002 Da 74213, 28 October 2004 (Supreme Court); Majestic Woodchips (II) (n 10). See paras 9.10, 9.96.
33 Author’s note: comparable to Article 21(4) of the 2016 Arbitration Act.
34 Author’s note: this set aside ground was deleted when the Model Law was adopted.
35 A review of this case can be found in Kay-Jannes Wegner and John Rhie, ‘Korea International Cooperation Agency v HN Corporation AS, Supreme Court of Korea, Case No. 2007Da73918, 24 June 2010’, A contribution by the ITA Board of Reporters, Kluwer Law International.
36 Author’s note: based on tortious acts.
37 96 Da 511110, 29 May 2014 (Supreme Court). Author’s note: based on tortious acts.
38 Author’s note: multiple Defendants existed in the case.
39 Author’s note: based on the lower court’s judgment. 94 Na 11691, 23 February 1995 (Seoul High Court).
41 Dongju Distillers Co., Ltd. v Korea Specialty Contractor Financial Cooperative, 91 Da 4812, 23 April 1991 (Supreme Court).
42 Author’s note: this refers to the Korea Commercial Arbitration Committee. Technically, the Committee was replaced with the Korean Commercial Arbitration Association on 21 March 1970, but the court appears to be using the old name.
43 Author’s note: comparable to Article 36(2)(1)(d) of the 2016 Arbitration Act.
45 Author’s note: Comparable to Article 451(4)–451(9) of the 2016 Civil Procedure Act.
46 Article 16. Competence of arbitral tribunal to rule on its jurisdiction. Author’s note: Article 16 is quoted in its entirety.
47 Arbitration Act Draft Amendment Review Report, Legislation and Judiciary Committee, National Assembly, 12 November 1999.
48 Report of the UNCITRAL on the Work of its Eighteenth Session (Vienna, 3–21 June 1985) (A/40/17) (‘UNCITRAL Report’), paras 154–63. Author’s note: the Seoul High Court’s citation of the travaux préparatoires, while commendable, is not common practice in most Korean courts.
49 Author’s note: para. 158, UNCITRAL Report.
50 Author’s note: para. 159, UNCITRAL Report.
51 Author’s note: para. 149, UNCITRAL Report.
52 Paras 154−155, UNCITRAL Report.
53 Article 13—challenge procedure. Author’s note: Article 16 is quoted in its entirety.
54 Para. 132, UNCITRAL Report.
55 Article 17(5) of the Arbitration Act.
56 Author’s note: The term used for appeal in Article 17(8) of the Act is hang-go in Korean, which normally applies to appeals from court decisions and orders as opposed to appeals from a court judgment. See <sites.google.com/site/arbitrationinkorea/> for Chinese characters.
57 Author’s note: the 2016 Arbitration Act now permits judicial review when an arbitral tribunal decides as a preliminary question that it does not have jurisdiction.
58 Young Joon Mok, Commercial Arbitration (Pakyoungsa 2011), 175. In contrast, Article 8(2) of the pre-Model Law version of the Act explicitly disallowed the swearing-in of witnesses and appraisers.