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Korean Courts’ Attitudes towards Challenging Arbitral Awards

  • DONG-A LAW REVIEW
  • 2009, (45), pp.411-446
  • Publisher : The Institute for Legal Studies Dong-A University
  • Research Area : Social Science > Law

Choi Sung Soo 1

1동아대학교

Candidate

ABSTRACT

According to the Korean Arbitration Act Art. 36(2), a party may file a lawsuit for cancellation of an arbitral award on the following grounds. There are 4 grounds for which the party making the application should furnish proof and 2 grounds that the court finds at its own discretion. First, a party was incompetent or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the laws of this State. Second, the party making the application was not given proper notice of appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case. Third, the award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or contains decisions on matters beyond the scope of submission to arbitration. Fourth, the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or Korean Arbitration Act. Fifth, the subject matter of the dispute is not the one in its nature to be settled by arbitration under the laws of this State. Sixth, the award is in conflict with the public policy. Korean Courts' current trends towards Challenging Arbitral Awards show that the courts interpret the reasons for Challenging Arbitral Awards relatively in a strict manner. Thus, the cases recognizing the Challenging Arbitral Awards belongs to the minority. Korean courts as a whole recognize the effect of an arbitral agreement widely, acknowledge the independence of arbitration clause, take a generous attitude towards the reasons of Arbitral Awards and also introduce the concept of international public order and morals into Arbitral Awards. Conclusionally, the courts take part in the international trend in the area of Arbitral Awards. Afterwards, an attitude like that will lead the present trends. For the sufficient fulfillment of the objectives of International Commercial Arbitration, we need reducing the reasons for Challenging Arbitral Awards, and we can make arbitration be used to the maximum extent. We also need more meticulous observation and care is required to catch what is not subsumed by the current cases. On the other hand, we need to seek the trends of cases steadily and need practical preparation in the field of Challenging Arbitral Awards.

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