Study On The Law And Practice Of The Recognition And Enforcement Of Foreign Arbitral Awards In ROK

Recently, due to the ongoing globalization process and active international transactions, international commercial disputes have increased and because of that more transactions are submitted for arbitral awards.However, due to each country’s different legal frame work and judicial practices, recognition and enforcement of foreign arbitral awards need to get through examination by the country that execution the award. So the key for improving the effectiveness of the International Arbitration System depends on the Recognition and Enforcement of Foreign Arbitral Awards.In order to ensure recognition and enforcement of foreign arbitral awards, in 1958 the New York Convention took place. More than 150 countries already signed the Convention until today, and Korea joined the Convention in 1973. Once signed, Korea declared both mutual and commercial reservations and in accordance with this, if Korea is facing a foreign commercial arbitration award from another Convention signatory then Korea needs to follow the Convention rules.The Korean Arbitration Act accepted the Model Law on International Commercial Arbitration and revised the entire KAA as supplement procedural defects and adapted it to the International Rule. In the KAA, the Recognition and Enforcement of foreign Arbitral Awards regulations are divided into the awards that can apply the New York Convention and those that can’t. If the New York Convention can’t be applied then awards apply the Korean Civil Procedure Act and the Civil Execution Act.In accordance with the New York Convention, the party applying for the recognition or enforcement of an award must submit the relevant documents to the respective the authority court, only then the application is formal. This court will then examine whether the enforcement of the awards is in violation of judicial or public order. Regarding the reasons for refusing the enforcement, accordantly the New York Convention, the Article V splits into two parts. One, asserted and proven by the respondent and the other concerns a court refusal on its own authority.Korean Courts show their specific standards through the cases on the enforcement of foreign arbitral awards. Particularly relating to violation of the standard of public policy, the Korean Supreme Court has consistently held in a series of decisions that the public policy was intended to protect Korea’s most fundamental moral beliefs and social order, and should be very restrictively interpreted in light of the domestic circumstance and stability in international commercial transaction. The award should be recognized and enforced when the result would be contrary to the virtuous custom and social order in Korea.