Seoul ADR Festival 2025: Insights into the Present and Future Development of Civil Law Jurisdictions in International Arbitration

On 28 October 2025, the Asia Civil Law Summit was presented as an official event of the Seoul ADR Festival 2025, with four rounds of discussions exploring the history, present, and outlook of civil law traditions and approaches in international arbitration. Speakers and attendees across various jurisdictions, from both civil law and common law backgrounds, gathered to share their experience and insights on the topic.

This article covers the second and third sessions of the Asia Civil Law Summit.  The second session, titled “The Role of Civil Law Traditions in Shaping International Arbitration” was moderated by Ms. Jeonghye Sophie Ahn (Yulchon) and Dr. Gabriele Ruscalla (Le 16 Law) and featured Dr. Torsten Lörcher (CMS), Ms. Annet van Hooft, Dr. Jane Willems (independent arbitrators) and Ms. Athita Komindr (UNCITRAL Regional Centre for Asia and the Pacific).  Moderated by Mr. Hyungkeun Lee (Kim & Chang), the panel of the third session “Seoul as a Civil Law Seat”, consisting of Mr. James Morrison (Peter & Kim), Ms. Dana Kim (Herbert Smith Freehills Kramer), Mr. Christopher Lau (independent arbitrator) and Mr. John Rhie (Quinn Emanuel), shared their views on Seoul’s development and future as an arbitral seat in the civil law jurisdictions.

The key points of discussion from the two sessions are introduced below.

Session 2: The Role of Civil Law Traditions in Shaping International Arbitration

This session explored how civil law reasoning and legal principles have shaped the mechanics of contemporary international arbitration.

Civil Law Reasoning in Arbitral Decision-Making

Dr. Lörcher opened the session by examining how civil law reasoning has shaped the drafting of arbitral awards.  He noted that the strength of international arbitration lies in its flexibility and its ability to draw from multiple legal traditions.  Within this context, civil law methodology offers a disciplined framework that enhances transparency and analytical rigor.  Unlike the precedent-driven reasoning of common law, civil law reasoning proceeds deductively from codified norms, i.e. identifying the applicable rule, testing each element of the claim or defense, and subsuming the proven facts before determining the appropriate remedy.  Dr. Lörcher emphasized that the civil law methodology not only strengthens the tribunal’s reasoning, but also enhances the enforceability of the award and reduces the risk of annulment.

Civil Law DNA in Arbitration

Building on that foundation, Ms. van Hooft explored the “Civil Law DNA” in arbitration through the principle of good faith, which she described as having both substantive and procedural dimensions.  Substantively, the flexible French doctrine of imprévision under the French Civil Code allows renegotiation when performance becomes excessively onerous and is in stark contrast with the narrower Dutch approach and the stricter common law doctrine of frustration.  Procedurally, Swiss law elevates the principle of good faith to international public policy, while French law and institutional rules similarly impose duties of fairness and candor. 

Through a rhetorical question, “Has procedural good faith already conquered the world?” Ms. van Hooft emphasized that procedural good faith, in the form of arbitral fairness, is quickly becoming the norm in international arbitration that transcends national traditions.  She concluded by observing that standards of proof no longer sharply divide common and civil law arbitrators, a point that many practitioners appeared to recognize based on their own experience.

Exporting Civil Law Principles in Arbitration

Dr. Willems then traced how French civil law principles became deeply embedded in modern arbitral doctrines.  She reminded the audience that although the Napoleonic Code historically treated arbitration agreements as invalid, this restriction prompted French courts to develop pro-arbitration jurisprudence, particularly through their review of ICC awards that eventually laid the foundation for arbitral autonomy.  Through landmark cases, French courts recognized the autonomy and separability of the arbitration agreement as early as 1963, ensuring that an arbitration clause remains valid even if the main contract is void.  The French approach influenced Article 21(2) of the 1976 UNCITRAL Arbitration Rules and Article 16(1) of UNCITRAL Model Law, both of which enshrine the principle of separability as a cornerstone of arbitral practice.  French jurisprudence also gave rise to the competence-competence doctrine: tribunals rule on their own jurisdiction (positive effect) while courts defer its review pending arbitration (negative effect).

Yet, Dr. Willems cautioned that recent cases, such as Vincent J. Ryan, Schooner Capital LLC, and Atlantic Investment Partners LLC v. Republic of Poland, suggest that France’s pro-arbitration stance may be tested by more expansive judicial review.

UNCITRAL Model Law Harmonizing the Civil Law and Common Law Traditions

Ms. Komindr concluded the session by reflecting on how the UNCITRAL Model Law bridges civil and common law traditions while advancing the harmonization of international trade law.  She highlighted that UNCITRAL’s mandate to harmonize and unify trade law responds to the fragmentation that once impeded global commerce.  The UNCITRAL Model Law, adopted by a wide range of jurisdictions, provides a coherent framework for fair and efficient dispute resolution while still allowing measured flexibility for national adaptation.  Her analysis emphasized that universal principles such as party autonomy (Article 5) and impartiality (Article 12) reflect shared legal values, while divergences are managed by deferring to national rules on court-assisted evidence (Article 27).

Session 3: Seoul as a Civil Law Seat

The third session examined Seoul’s development as an emerging civil law seat of arbitration.  Distinctively, all four speakers were admitted in common law jurisdictions, offering an external, comparative perspective on Seoul’s strengths and trajectory as a preferred arbitral seat.

The Role of Korean Practitioners

Mr. Morrison emphasized that Seoul’s credibility as an arbitral seat stems from Korean parties, who are not only among the most active and sophisticated users of arbitration but also demonstrate a strong culture of compliance with arbitration agreements and awards.  He further explained that although Korea is often categorized as a civil law country, its system in practice reflects a “dual legal DNA” at the intersection of civil and common law traditions.  This duality, evident in the high proportion of dual-qualified practitioners, uniquely positions Seoul.  He concluded that Seoul’s goal as an arbitral seat should not be imitation but refinement: “Seoul cannot and should not replicate Singapore or Hong Kong; it should be Seoul—just do it better.”

Importance of an Arbitral Seat, and the Korean Judiciary

Ms. Kim underscored the legal significance of the arbitral seat, emphasizing that it determines the legal framework that supports arbitration.  While parties often focus on institutional rules, the importance of the seat becomes evident especially when difficulties such as non-compliance, jurisdictional challenges, or the need for interim measures arise.  She noted that Korea’s judiciary provides efficient and predictable support through well-developed mechanisms for injunctions, evidence preservation, and enforcement.  To enhance Seoul’s visibility, Ms. Kim suggested that greater publication of relevant statistics would demonstrate the efficiency and transparency of Korean courts.

Reflecting Upon Leading Civil Law Seats

Mr. Lau compared leading civil law seats, highlighting how each city consolidated its reputation through strong arbitral institutions and governmental engagement.  Paris benefits from the International Chamber of Commerce (ICC) and its pro-arbitration jurisprudence; Geneva’s neutrality and multilingual legal environment reinforce its standing; and Stockholm’s integration of arbitration policy with national trade strategy illustrates the importance of coordinated state support.  Mr. Lau suggested that Seoul could pursue similar government-institution coordination to promote Korean arbitration laws and the KCAB International Arbitration Rules.  Mr. Lau further proposed allowing English-language proceedings in Korean court litigation involving arbitration or cross-border matters to enhance Seoul’s accessibility for international users.

The Challenge of “Foreignness”

Mr. Rhie emphasized that Seoul already possesses the essential attributes of a leading arbitration seat: jurisprudence, predictability, and a judiciary well versed in cross-border enforcement and set-aside issues.  He observed that Seoul’s hybrid legal culture enables flexibility and predictability, which international parties value.  At the same time, Mr. Rhie acknowledged that the key challenge for Seoul is its unfamiliarity, or “foreignness”.  He added that the best advocacy for Seoul arises through performance rather than promotion: when Korean lawyers, experts, and courts deliver a positive user experience, it naturally strengthens Seoul’s reputation as a credible arbitral seat.

Overall, the panel’s discussion suggested that Seoul’s hybrid legal identity, robust jurisprudence, skilled professionals, and institutional infrastructure position it to play a central role in shaping the next generation of arbitral practice in Asia, provided it continues to address visibility and accessibility challenges.

Key Takeaways

The two sessions highlighted the elements of civil law traditions in international arbitration and offered a balanced and empirically grounded evaluation of Seoul’s progress and potential as an arbitral seat.

Civil law and common law, while differing in their history and approaches, converge in the field of international arbitration.  Hence it is important for arbitrators and practitioners to understand and make best use of the advantages and characteristics of each tradition in practicing international arbitration.  In this context, the Asia Civil Law Summit successfully provided the panel and audience with an open forum to freely discuss their ideas and comments, thereby encouraging further advancement of international arbitration.

More coverage from Seoul ADR Festival is available here.