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THE CURRENT STATUS OF COMMERCIAL ARBITRATION IN KOREA FOCUSING ON THE ARBITRABILITY

  • Journal of International Business Transactions Law
  • Abbr : IBT
  • 2018, (22), pp.47-61
  • DOI : 10.31839/ibt.2018.08.22.47
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law > Private Law > International Commercial Transactions Law
  • Received : June 25, 2018
  • Accepted : July 27, 2018

Kim, Yong Eui 1

1동아대학교

Accredited

ABSTRACT

According to the KCAB statistics, the number of arbitration cases in Korea has been increasing continuously from 175 cases in 2000 to 500 in 2016. Among the cases, about 25% are international cases. With the recent amendment of Arbitration Law in 2016 (“Law”), one of the hot subjects in the arbitration field in Korea is the expansion of arbitrability under the new Law. Generally the arbitrability is the concept which can separate the disputes to be resolved by arbitration from other disputes belonging to the exclusive jurisdiction of courts. Generally it is well recognized in Korea that the disputes regarding the constitutional law, criminal law, administrative law, family law (not related to the property) cannot be resolved by arbitration. When the dispute is found to be out of the arbitrability, the arbitral award, regardless how or where it was made, may not be enforced in Korea because such dispute may not be resolved by arbitration under the Law. The Law may revoke such award or reject the recognition and enforcement thereof. This provision is corresponding to the article 5 (2) a. of New York Convention. Law does not provide expressly for the arbitrability. However, it is said that the legislators reflected the international trend as appears in Model Law in expanding the scope of arbitration to the areas of intellectual property, bankruptcy, corporate matters, and competition (“New Arbitrable Areas”) which traditionally did not belong to the scope of arbitration. However, there are still some arguments that such disputes may be arbitrable only if the disputes are not purely the issues of the New Arbitrable Areas. In line with the trends in other countries, Korea should develop and refine the legal theory based upon the accumulative decisions in the cases with diverse issues related to the New Arbitrable Area. Of course lots of academic researches on and good reference to foreign legislation and practice in the same area should be added to Korean jurisprudence of arbitration in order to cope with globalization of commerce and complexity of the disputes on commercial transactions now and in the future.

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