Foreign arbitration

Foreign arbitration (국제중재) refers to the arbitration which took place in a foreign country.

Comparing with foreign judgments, an issue arises on which condition the Korean court should recognize and enforce the foreign arbitral award.

Key words
arbitration, arbitral award, New York Convention, arbitration agreement

New York Convention
Under Article IV of the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) to which Korea acceded in 1973, the party, who intends to to obtain the recognition and enforcement of a foreign arbitral award, shall supply:
 * the duly authenticated original award or a duly certified copy thereof, and
 * the original arbitration agreement or a duly certified copy thereof.

In addition, if the arbitral award or arbitration agreement is not made in an official language of the country in which the award is relied upon, the party applying for recognition and enforcement of the award shall produce a translation of these documents into such language, and the translation shall be certified by an official or sworn translator or by a diplomatic or consular agent.

Korean case law
It should be noted that the Korean court has taken a more practical and functional approach to the interpretation of the documentary requirements for enforcement of foreign arbitral awards.

In a case where a Vietnamese company which had obtained a favorable arbitral awara in Vietnam applied for recognition and enforcement of a Vietnamese arbitral award before a Korean court, the Supreme Court Decision 2004Da20180 rendered on December 12, 2004 has alleviated the document requirements as follows:
 * (i) the party applying for recognition andenforcement of a foreign arbitral award does not have to strictly comply with the document requirements when the other party does not dispute the existence ana the content of the arbitral award and the arbitration agreement, and
 * (ii) in case the translation submitted to the court does not satisfy the requirement of Article 4，
 * the court does not have to dismiss the case on the ground that the party applying for recognition and enforcement of a foreign arbitral award has failed to comply with the translation requirement under Article 4，and
 * instead may supplement the documents by obtaining an accurate Korean translation from an expert translator at the expense of the party applying for recognition and enforcement of the foreign arbitral award.

Finally, the Supreme Court held that, even though the existence of a written arbitration agreement was not disputed at the arbitration, there was no written arbitration agreement between the plaintiff and the defendant and went on to repeal the judgment of the second instance which admitted the existence of a written arbitration agreement between the parties.

In view of the trend of alleviating the formality requirement of arbitration agreements under Article 2 of the New York Convention, it would be proper that the Supreme Court have concluded that there was a written arbitration agreement because the defendant participated in the arbitration proceedings in Vietnam without disputing the formality requirement of the arbitration agreement.

Otherwise, the Supreme Court should have taken the view that the defendant was no longer permitted to dispute the formality requirement of the arbitration agreement because otherwise it would be clearly against the doctrine of estoppel.