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Newsletter | February 2014, Issue 1
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INTERNATIONAL ARBITRATION & CROSS-BORDER LITIGATION |
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Amendment to KCAB Internal Regulations:
Arbitrators Appointed Outside Korea and First Case |
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The Korean Commercial Arbitration Board (“KCAB”) has revised its internal regulations so that the Secretariat has the discretion to appoint an arbitrator who is residing outside of Korea without the parties’ agreement in cases where the Secretariat appoints the arbitrators (especially in the case of appointing the chairperson). This amendment applies to all arbitration cases received by the KCAB Secretariat on or after March 1, 2013, and was applied for the first time in a recent case where Kim & Chang represented a party. |
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Although the current KCAB International Arbitration Rules (“International Rules”) allows the Secretariat to appoint an arbitrator of a third country regardless of whether he/she is a resident of Korea, this only applies to cases where the relevant arbitration agreement was made on or after the effective date of the International Rules on September 1, 2011. In practice, for cases with arbitration agreements pre-dating the effective date of the International Rules, the Secretariat had a very limited pool of nominees to choose an arbitrator. The limitation was especially an issue for the substantial portion of KCAB cases involving disputes between Korean and U.S parties, as most of the foreign arbitrators registered with the KCAB are U.S. lawyers working in Korea, who would be not be eligible for appointment. Moreover, in the absence of a specific agreement by the parties, it was impossible for the KCAB to appoint well-known British, European and Asian arbitrators residing outside of Korea. |
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The KCAB Secretariat has applied its amendment to internal regulations in a recent case where Kim & Chang was representing a party, to appoint an arbitrator from a third country who was residing in Japan, in the absence of the parties’ agreement. Going forward, such flexibility will allow the KCAB to tap into a wider pool of internationally recognized arbitration professionals, and is expected to be a positive development, especially for international parties with KCAB arbitration clauses pre-dating September 1, 2011. |
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