International Commercial Arbitration in South Korea
Korea and Turkey has been in blood allies relationships since Turkish government decided to send troops to South Korea for Korean War (6.25 war) on 25.07.1950. Korea and Turkey had agreed FTA on March 26th 2012. Korean Arbitration Act had promulgated and the Korean Commercial Arbitration Committee was firstly inaugurated as an exclusive administrative institution for the arbitrations of commercial disputes in the Chamber of Commerce of Korea in 1966. The Arbitration Rules of KCAB were brought into effect on Jan 15, 2005. KCAB has international and domestic rules. Korea acceded to New York Convention in 1973. 4. In general, Korean courts supports arbitration procedures, however it is important for this study to examine landmark court decisions related to the validity of arbitration aproach rendered by South Korean Courts between 2003-2004.
Güney Kore’de Uluslararası Ticari Tahkim
Türkiye, 25 Haziran 1950 yılında başlayan Kore Savaşı’na 25 Temmuz 1950 yılında Güney Kore’ye müttefik kuvvet olarak asker gönderme kararı almıştır. Bu yüzden Türkiye ve Güney Kore birbirlerini kardeş ülke olarak kabul etmişlerdir. Güney Kore ve Türkiye arasındaki önemli antlaşmalardan biri olan resmi ticari antlaşma (FTA / Free Trade Agreement- Serbest Ticaret Antlaşması) 26 Mart 2012 tarihinde imzalanmıştır. Kore Tahkim Kanunu’nun yürürlüğe girmesi ve Kore Ticari Tahkim Kurulu’nun (KCAB) kurulması 1966 yılında gerçekleşmiştir. KCAB’ın uluslararası tahkim kuralları 15 Ocak 2005 tarihinde yürürlüğe girmiştir. KCAB, yerel ve uluslararası tahkim kurallarını kendine uygun olarak uyarlamıştır. Güney Kore, 1958 tarihli New York Anlaşmasına (New York Convention) 1973 yılında katılmıştır. Normalde Kore Mahkemeleri, tahkime ve tahkim seçen taraflara genel olarak olumlu yönde yaklaşmaktadır ancak Kore mahkemelerinin 2003-2004 yılları arasında tahkim anlaşmalarının geçerliliği hakkında verdiği kararlar, dönüm noktası niteliği taşıdığı için bu çalışma açısından incelenmesi önem arz etmektedir.
The first regulation on arbitration in South Korea was made in 1966 under the Korean Arbitration Act. This act was later amended on 31 December 1999 as the UNCITRAL Model Law. Finally, in 2016, comprehensive changes have been made based on the 2006 UNCITRAL Model Law. The Korean Arbitration Act, which was revised in 2016, is in force today. The Korean Arbitration Act regulates both national and international arbitrations. Korean Arbitration Act applies to arbitrations seated in Korea, with exceptions. In addition, Korea became a party to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards in 1973 and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States in 1967. In Korea, these contracts will also apply to the enforcement of foreign arbitral awards. Since the Korean Arbitration Act was revised on the basis of the 2006 UNCITRAL Model Law, it has the legislation in accordance with international standards on issues such as the validity of the arbitration agreement and arbitration procedure. According to Article 3 of the Korean Arbitration Act, the arbitration agreement is an agreement between the parties on the settlement of all or some of the disputes arising from an existing legal relationship, whether or not due to the contract or not. Arbitration agreements are defined in accordance with the UNCITRAL Model Law. However, in some of the 2003 and 2004 decisions of the Korean courts, the Korean courts have made comments that would invalidate the arbitration agreement. Normally, the Korean courts are approaching the parties who choose arbitration and arbitration in a positive way. However, it is important that the Korean courts review these decisions in terms of the validity of arbitration agreements between 2003-2004, as it is a landmark. The most important result of these decisions is the decrease observed in applying to KCAB after these years. In South Korea, the Korean Commercial Arbitration Board (KCAB) should be mentioned in terms of international commercial arbitration. The Korean Commercial Arbitration Board is the only institutional arbitration center in Korea. The Korean Commercial Arbitration Board (KCAB), located in Seoul, is based on the Korean Arbitration Act of 22 March 1966. KCAB shall be applied for both local and international legal disputes. In 1966, 21. 416 arbitration and mediation requests were filed by KCAB. The South Korean government pursues a policy in favor of the arbitration. In South Korea, the New York Convention is applied for the recognition and enforcement of foreign arbitral awards. According to Article 6 of the South Korean Constitution, international treaties and conventions adopted by South Korea have the same effect as the Korean laws. There is no difference between the Korean Arbitration Act and the New York Convention regarding to the recognition and enforcement of foreign arbitral awards. Korean Arbitration Act will be applied to the issues that if they are not regulated in the New York Agreement. In practice, the courts in Korea have a positive view of the recognition and enforcement of foreign arbitral awards. The most common reason for rejection in cases involving the recognition and enforcement of foreign arbitral awards in Korean courts is non-compliance with public policy
