Enforcement of UAE Arbitral Awards and Judgments in Korea: New York Convention and DIFC-Korean Supreme Court Memorandum of Guidance

The United Arab Emirates (UAE) has become a major seat for international commercial arbitration and a significant hub for cross-border dispute resolution. Korean entities are increasingly active in the Middle East across construction, energy, and infrastructure sectors, giving rise to a growing need to enforce UAE-seated arbitral awards and UAE or DIFC/ADGM court judgments in the Republic of Korea.

In this article, we examines the legal framework governing such enforcement, distinguishing between the regime applicable to arbitral awards under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) and foreign court judgments governed by Korean civil procedure and civil execution legislation.

We also explore the practical significance, and limitations, of the Memorandum of Guidance between the DIFC Courts and the National Court Administration of the Supreme Court of Korea and offers guidance for parties structuring dispute resolution clauses with potential enforcement in Korea in mind.

 

Legal Framework and Legislative Position

Both the Republic of Korea and the UAE are Contracting States to the New York Convention. Korea acceded to the Convention in 1973, while the UAE joined in 2006. Korea has made both the reciprocity reservation (Article I(3), first limb) and the commercial reservation (Article I(3), second limb).

The reciprocity reservation means Korea will apply the Convention only to awards made in the territory of another Contracting State; since the UAE is a Contracting State, this reservation should not pose an obstacle to the enforcement of UAE-seated awards.

The commercial reservation means that Korea applies the Convention only to differences arising out of legal relationships, whether contractual or otherwise, that are considered commercial under Korean law. In practice, this reservation is generally interpreted broadly and can encompass most international commercial disputes arising in sectors such as construction, energy and infrastructure.

Enforcement of foreign arbitral awards in Korea is governed principally by the Korean Arbitration Act (Law No. 1767, as amended). The Act is based on the UNCITRAL Model Law on International Commercial Arbitration, although Korea’s regime for the recognition and enforcement of foreign arbitral awards is specifically addressed through Articles 37 and 39 rather than by adopting the Model Law’s enforcement provisions wholesale.

Under Article 39 of the Arbitration Act, recognition and enforcement of a foreign arbitral award subject to the New York Convention is governed by the Convention, and the enforcing party must obtain a Korean court decision/order for recognition and enforcement before compulsory execution can proceed. The competent court examines whether any of the Convention grounds for refusal are established, but does not conduct a review of the merits of the award.

Foreign court judgments, by contrast, are governed by Article 217 of the Korean Civil Procedure Act (CPA) and Article 26 of the Civil Execution Act (CEA). Recognition under Article 217 CPA requires that the foreign judgment be final and conclusive and that the statutory recognition requirements be satisfied:

• the international jurisdiction of the rendering court is recognised under Korean principles of international jurisdiction;
• the losing defendant was properly served with process and given sufficient time to defend, or voluntarily responded to the proceedings;
• recognition would not undermine Korean public policy or social order; and
• reciprocity, or substantial equivalence in recognition requirements, exists between Korea and the rendering state.

Compulsory execution requires a Korean judgment of execution under Articles 26 and 27 CEA, although the Korean court may not review the merits of the foreign judgment. Unlike the New York Convention regime for arbitral awards, there is no comparable multilateral treaty framework simplifying enforcement of court judgments between Korea and the UAE.

 

Judicial Treatment and Case Law

Korean courts have generally applied the New York Convention in a pro-enforcement manner. Consistent with the Convention’s text and structure, the Supreme Court has affirmed that the grounds for refusal of enforcement under Article V of the Convention are exhaustive and are to be construed narrowly. The burden of proof lies on the party resisting enforcement to establish that one or more refusal grounds apply.

The principal grounds for refusal under Article V, as applied in Korean jurisprudence, include:

• incapacity of a party or invalidity of the arbitration agreement under the law to which the parties subjected it or, failing indication, the law of the seat (Article V(1)(a));
• denial of due process, including lack of proper notice of the arbitral proceedings or inability to present one’s case (Article V(1)(b));
• the award dealing with matters beyond the scope of the submission to arbitration (Article V(1)(c));
• the composition of the tribunal or procedure not being in accordance with the parties’ agreement or the law of the seat (Article V(1)(d)); and
• the award not having become binding or having been set aside or suspended in the country of origin (Article V(1)(e)).

Additionally, enforcement may be refused on the court’s own motion where the subject matter is not arbitrable under Korean law (Article V(2)(a)) or where enforcement would be contrary to Korean public policy (Article V(2)(b)).

The Korean Supreme Court has held that the public policy exception is to be applied restrictively, limited to cases where enforcement would violate Korea’s fundamental moral and social order or basic legal principles. Mere differences between Korean substantive law and the law applied by the tribunal do not, without more, engage the public policy defence.

Korean courts generally require procedural irregularities in the arbitral proceedings to be fundamental and prejudicial before they will justify refusal; minor procedural deviations that did not affect the resisting party’s ability to present its case should not suffice.

With respect to foreign court judgments, the Korean Supreme Court has addressed the reciprocity requirement under Article 217(1)(iv) CPA on multiple occasions. The court applies a “substantial reciprocity” test: it is sufficient that the foreign state would recognise a Korean judgment under conditions that are not materially more onerous than those imposed by Korean law.

The Supreme Court has recognised reciprocity with various jurisdictions, but there appears to be limited published authority specifically addressing UAE mainland court judgments. A party seeking to enforce a UAE court judgment in Korea should therefore be prepared to establish substantial reciprocity, including through expert evidence on UAE law where appropriate.

In the absence of a bilateral judicial co-operation treaty between Korea and the UAE, the reciprocity analysis must be conducted on a case-by-case basis by reference to the relevant provisions of UAE law, principally Federal Decree-Law No. 42 of 2022 on the Civil Procedure Law, Articles 222-225.

 

Comparative Perspective

The enforcement of foreign arbitral awards in Korea compares favourably with other major jurisdictions. Like England and Wales, France, Singapore, and Hong Kong, Korea adopts a pro-enforcement approach grounded in the New York Convention, with a narrow interpretation of refusal grounds. Korea’s commercial reservation is of limited practical significance given the breadth of its interpretation, and the reciprocity reservation is satisfied as between Korea and the UAE given that both are Contracting States.

The position regarding foreign court judgments is more complex. Unlike common-law jurisdictions such as England and Wales (where the common law permits enforcement of foreign money judgments without a treaty, subject to finality and other conditions), Korea’s reciprocity requirement imposes a structural constraint. In contrast, several Gulf Cooperation Council (GCC) states have bilateral or multilateral arrangements facilitating recognition of judgments (for example, the Riyadh Convention among Arab states). Korea is not party to comparable arrangements with the UAE.

 

DIFC-Supreme Court of Korea MOG

The DIFC-Supreme Court of Korea MOG is best understood as a judicial guidance document rather than an enforcement treaty. It was concluded between the DIFC Courts and the National Court Administration of the Supreme Court of Korea to record each court system’s understanding of how money judgments of the other may be recognised and enforced under existing domestic law.

It provides litigants, lawyers and judges with a non-binding roadmap of the procedural and substantive requirements likely to be relevant in each jurisdiction, including finality, jurisdiction, service, public policy and reciprocity. It does not create directly enforceable rights, remove the need to commence domestic recognition or execution proceedings, or displace the statutory requirements of Korean law.

The DIFC Courts-Supreme Court of Korea guidance therefore represents a soft-law initiative to address part of the gap created by the absence of a treaty regime for court judgments. Other jurisdictions, notably Singapore and various common-law centres, have entered into similar memoranda or judicial guidance notes with the DIFC Courts. These instruments are not treaties and do not create binding legal obligations, but they signal judicial willingness to co-operate and may inform the practical presentation of reciprocity and other recognition issues. Nevertheless, parties should not assume that the guidance displaces Korean statutory requirements for recognition and enforcement.

 

Practical Considerations and Risk Management

Parties seeking to enforce UAE-seated arbitral awards,UAE/DIFC or ADGM judgments in Korea should consider the following practical points:

Confirm seat and award status. Before commencing enforcement proceedings in Korea, it is recommended to confirm that the award was made in a New York Convention Contracting State and that the award is final and binding. If annulment or set-aside proceedings are pending at the seat, the Korean court may consider adjourning its enforcement decision under Article VI of the Convention. Anyone bringing or defending a claim may wish to monitor any challenge proceedings closely and consider whether to seek a stay, security, or parallel enforcement where appropriate.

Prepare documentation. The enforcing party may wish to present the duly authenticated original award or a certified copy, the original arbitration agreement or a certified copy, and Korean translations acceptable to the Korean court. Incomplete, inconsistent or improperly authenticated documents may cause procedural delay.

Verify service record. Denial of due process under Article V(1)(b) is a common refusal argument.  Therefore,  a comprehensive record of all notifications and communications served on the opposing party throughout the arbitral proceedings may be beneficial. Where service was effected through institutional channels, a claimant can obtain confirmation from the administering institution.

Assess assets and provisional measures. Before or contemporaneously with applying for recognition and enforcement, the debtor’s assets in Korea can be identified, and claimants may wish to consider whether provisional attachment or other preservation measures are available. Korean courts may grant preservation orders where the applicant shows a sufficient risk that assets may be dissipated or enforcement may otherwise be frustrated. Timing is critical: early action may prevent the debtor from removing or encumbering assets.

Structure dispute resolution clauses with enforcement in mind. When negotiating contracts with Korean counterparties, or where enforcement in Korea is foreseeable, claimants can consider designating a seat in a New York Convention Contracting State, selecting a well-recognised arbitral institution, ensuring the arbitration agreement is in writing and clearly identifies the scope of disputes covered, and specifying the language of arbitration and the governing law of the arbitration agreement to minimise Article V(1)(a) challenges.

Do not treat DIFC or ADGM judgments as a simple enforcement conduit. Although the DIFC and ADGM Courts offer a common-law procedural framework and English-language proceedings, a DIFC/ADGM judgment remains a foreign court judgment for the purposes of Korean enforcement law. The DIFC-Korea MOG does not create a treaty-based enforcement mechanism. Parties are required to satisfy the five conditions of Article 217 CPA, including the reciprocity requirement. The MOG may assist in the reciprocity analysis by evidencing judicial co-operation, but it does not guarantee recognition. Practitioners should not structure disputes through the DIFC Courts solely for the purpose of simplifying enforcement in Korea without first confirming that the Korean statutory requirements can be met.

Consider the public policy defence. Korean public policy is interpreted narrowly but is not a dead letter. Awards or judgments that involve punitive or multiple damages, or that contravene fundamental Korean mandatory rules (for example, anti-corruption legislation or competition law), may face resistance. Parties should assess potential public policy arguments at the dispute resolution planning stage.

 

Conclusion

Enforcement of UAE-seated arbitral awards in Korea benefits from a well-established and pro-enforcement framework under the New York Convention, as applied through the Korean Arbitration Act.

The grounds for refusal are exhaustive and narrowly construed. By contrast, enforcement of UAE mainland, DIFC, or ADGM court judgments in Korea is subject to the more demanding requirements of the Korean Civil Procedure Act and Civil Execution Act, including the reciprocity requirement, for which there appears to be limited published precedent in the Korea-UAE context.

The DIFC-Korea guidance instrument is a welcome development in judicial co-operation, but it does not substitute for compliance with Korean statutory requirements. Parties engaged in cross-border transactions with Korean counterparties should structure their dispute resolution mechanisms with enforcement in mind, give serious consideration to arbitration where practicable, and take early steps to identify Korean assets and assess the availability of provisional relief.

 

References/Endnotes

1. Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (New York Convention), 330 UNTS 3.
2. Korean Arbitration Act (Law No. 1767 of 16 March 1966, as amended by Law No. 18645 of 28 December 2021).
3. UNCITRAL Model Law on International Commercial Arbitration 1985 (as amended 2006).
4. Korean Civil Procedure Act (Law No. 547 of 4 April 1960, as amended).
5. Korean Civil Execution Act (Law No. 6627 of 26 January 2002, as amended).
6. UAE Civil Procedure Law, Federal Decree-Law No. 42 of 2022, Articles 222-225.
7. DIFC Courts-Supreme Court of Korea Memorandum of Guidance on Judicial Co-operation (signed 2015).
8. Supreme Court of Korea, Decision 2009Da22952 (24 February 2012) (on public policy and foreign arbitral awards).
9. Supreme Court of Korea, Decision 2004Da47901 (28 June 2007) (on reciprocity in recognition of foreign judgments).
10. UNCITRAL Status: Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958) – Status of Contracting Parties.