Whether an arbitrator’s act of acting as an arbitrator at the request of a party or an agent of the arbitration case in the course of arbitral proceedings constitutes grounds for revocation of an arbitral award under Article 13(1)1 of the former Arbitration Act (affirmative)

Although an attorney-at-law receives fees from a client, he/she performs his/her duties independently and freely without obeying the direction and supervision of the client. Thus, even in cases where an attorney-at-law is appointed as an arbitrator and proceedings for arbitration, he/she shall be allowed to give counsel to many and unspecified customers in the course of performing his/her duties and accept the case from them. However, an attorney-at-law appointed as an arbitrator shall be restricted to have contact with a party to the arbitration case or his/her representative in order to ensure the fairness and independence of the arbitrator. Furthermore, even if the case is irrelevant to the case in question, the acceptance of the case at the request of either party or his/her representative shall not be permitted in principle. Furthermore, if the case in question is the same as the case in question or in law, the case in question constitutes a serious cause that may cause doubts as to the fairness and independence of the arbitrator in question to the extent that the case in question should be excluded from the arbitration procedure, and if the arbitration award was rendered without excluding the arbitrator in question, it shall not be subject to the revocation of the arbitration contract under Article 13(1).

Articles 6 and 13(1)1 of the former Arbitration Act (amended by Act No. 6083 of Dec. 31, 1999); Article 37 (see current Article 41) of the former Civil Procedure Act (amended by Act No. 6626 of Jan. 26, 2002); Article 39 (see current Article 43) Articles 19 and 26(1) of the former Commercial Arbitration Rules (amended by the approval of the Supreme Court of April 27, 200)

Republic of Korea (Attorneys Kim Chang-soo et al., Counsel for the defendant-appellant)

New Construction Co., Ltd. (formerly: Hysung Co., Ltd.) (Attorney Lee Im-soo et al., Counsel for the plaintiff-appellant)

Seoul High Court Decision 2002Na16134 delivered on April 2, 2003

The appeal is dismissed. The costs of appeal are assessed against the defendant.

1. In arbitration, if there is a reason to suspect the arbitrator’s impartiality and independence in order to secure the arbitrator’s impartiality and independence, it is required to give notice to the parties and exercise his right to challenge, etc. The former Arbitration Act (amended by Act No. 6083 of Dec. 31, 199) does not directly provide for the arbitrator’s duty of disclosure. However, the main text of Article 6 does not provide for the arbitrator’s duty of disclosure. However, the parties concerned may request a court to challenge the arbitrator only when there is no special provision in an arbitration contract or an arbitration contract under Article 37 (Cause of Exclusion) or Article 39 (Right to Challenge of Parties)(1) of the Civil Procedure Act. In the former Commercial Arbitration Rules (amended by the approval of the Supreme Court of April 27, 200), a person who has legal or economic interest in the result of arbitration cannot be an arbitrator (the main sentence of Article 19), and the arbitrator notified by the parties concerned may not immediately exercise his right to challenge the arbitrator’s impartiality or independence before the commencement of the hearing.

The judgment of the court below to this purport is just, and there is no error of law in the misapprehension of legal principles as to Article 6 of the former Arbitration Act and Articles 19 and 26 of the former Commercial Arbitration Rules.

2. Although an attorney-at-law receives fees from a client, he/she performs his/her duties independently and freely without following the client's direction and supervision. Thus, even in cases where an attorney-at-law is appointed as an arbitrator and proceedings for arbitration, he/she shall be allowed to provide consultation to many and unspecified customers on his/her duties and accept the case from the attorney-at-law. However, in order to ensure the fairness and independence of an arbitrator, an attorney-at-law selected as an arbitrator shall be limited to the extent possible. Furthermore, even if the case is irrelevant to the case in question, the acceptance of the case at the request of either party or its representative shall not be permitted in principle. Further, if the case in question is the same as the case in question, the acceptance of the case in question constitutes a serious cause that may cause doubts as to its fairness and independence to the extent that the case in question should be excluded from the arbitration procedure, and if an arbitral award was rendered without excluding the arbitrator, it shall not be subject to the arbitration agreement or the cancellation of the arbitration procedure.

According to the records, the defendant's agent, who is the party to the arbitration case of this case, delegated the authority to file an application for arbitration and appoint a lawyer with respect to the claim for additional construction costs of the Seoul subway 6-10 Section, the defendant's agent, who is the party to the arbitration case of this case. On July 26, 2000 when the arbitration procedure of this case was in progress, the non-party 2 was appointed as an arbitrator of the arbitration case of this case. The non-party 2 was in close cooperation with the non-party 3 and 4, who is appointed as a joint arbitration counsel as the central construction consulting worker of the non-party 1 and Dong company of this case, the non-party 2 filed an arbitration application against the plaintiff as the KCA 011-062 (hereinafter referred to as the "Korean Commercial Arbitration case") and attended the hearing on the date of hearing, and submitted the arbitration award of this case to the KCA 1 as an arbitrator (after the arbitral award of this case, the non-party 2's suggestion of this case and its legal issues should be revoked 1).

The judgment of the court below to this purport is just and acceptable, and there is no error of law such as violation of the rules of evidence, incomplete deliberation, incomplete reasoning, or misapprehension of legal principles as to the cancellation of arbitral awards.

3. In addition, the lower court determined that it is difficult to view that the Plaintiff knew or could have easily known the fact that Nonparty 2 was, prior to the instant arbitral award, appointed Nonparty 2 as an arbitrator and was working as an arbitrator by Nonparty 2 as an arbitrator.

In light of the records, the fact-finding and judgment of the court below are just and acceptable, and there is no violation of the rules of evidence, the non-exercise of the right to explanation, and the incomplete hearing.

4. Therefore, the appeal is dismissed, and the costs of appeal are assessed against the losing party. It is so decided as per Disposition by the assent of all participating Justices.

Justices Yoon Jae-chul (Presiding Justice)