We first note that Korea became a signatory in 1973 to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards (hereafter referred to as the Convention) with a reservation to the effect that the Convention will be applicable to arbitration cases involving commercial disputes under Korea Law and that arbitration awards rendered only in the Convention member states will be enforced in Korea.

In view of the foregoing, the foreign arbitral award coming from a member state and which would satisfy the reservation requirements of Korea would likely be recognized and enforced by Korean courts without further review. However, the foreign arbitral award still may not be enforced if the party against whom the arbitral award is being enforced makes proof that the award had not been rendered properly due to such factors as incapacity of the parties, lack of proper notice, compensation of the arbitral procedure not adhering to the agreement of the parties, or the award being contrary to the public policy of the country in which the award is being enforced, etc. (Article 5 of the Convention).

We note that in case where a foreign arbitral award is originated out of a non-contracting state to the Convention, Korean arbitration laws have no relevant provisions relating to the foregoing issue; so, in this case, we would need to rely on Korean law provisions pertaining to the enforcement of the foreign judgments seeking enforcement in Korea.

Specifically, under Article 217 of the Civil Action Laws of Korea, it is stipulated that the Korean courts should recognize and enforce a foreign judgment, provided that (a) such judgment was a final and conclusive judgment given by a court having valid jurisdiction, (b) the party against whom such judgment awarded received service of process in conformity with the laws of the jurisdiction of the court rendering judgment otherwise than by publication or responded to the action without being served with process, (c) such judgment has not been obtained by fraud, is not contrary to public policy of Korea and has not been obtained in proceedings which were contrary to natural justice and (d) judgments of the courts of Korea are accorded reciprocal treatment under the laws of jurisdiction of the court rendering such judgment.

So, as for both the arbitral award coming from a non-contracting state to the Convention and the foreign judgment seeking recognition and enforcement in Korea, Korean courts would apply the legal principles described immediately above to decide whether such foreign award or judgment should be enforced.