Procedural Arbitration rules are key to the efficient and effective adjudication of arbitration disputes in Korea and, also, worldwide. These arbitration rules govern and set out the framework for the arbitration process. Evidence gathering and presentation are important aspects of the above procedure, and yet, institutional and ad hoc rules that provide arbitration guidelines on other matters such as the appointment of arbitrators and the nature of award and costs are, usually, silent on this point. Advantages of such a purposeful gap in the rules are party autonomy and flexibility, but such a lack of rules may cause conflicts especially if the parties are from different legal cultures and/or different experience levels. Thus, on February 15th, 2021, the International Bar Association (“IBA”) task force for the Revision of the IBA Rules on Taking of Evidence made official changes to the IBA Rules of Evidence. This was a revision announced over a decade after the first revision.
Changes to the Arbitration Process
The changes provide clarity regarding evidence collection and presentation. The changes are: (1) adding cybersecurity and data protection under Article 2; (2) adding the term “Remote Hearing” under Article 8; and (3) adding a provision that excludes illegally obtained evidence under Article 9.
Cybersecurity and Data Protection in Arbitration
Article 2 of the IBA Rules of Evidence lists the issues that the initial consultation on evidentiary issues may address. In order to accommodate the increased size and complexity of arbitrations, a new Article 2.2(e) in order to help assure data privacy, cybersecurity of the evidence and to address relevant evidentiary issues.
Remote Arbitration Hearings
Article 8 of the IBA Rules of Evidence regards procedures to be followed at an evidentiary hearing. Article 8.2, outlines the procedure for an evidentiary hearing when conducted as a Remote Hearing. Each section of the new article lays out protocols aiming to guarantee that a Remote Hearing is efficient, fair, and uninterrupted. With the “fairness” issue, the technologies used need to be of sufficient quality to ensure smooth transmission and different time zones to be considered.
Accordingly, the Korean Commercial Arbitration Board (“KCAB”) held a mock Remote Hearing in April 2020. After review, KCAB plans to widen the implementation of virtual hearings.
Exclusion of Evidence Obtained Illegally
Article 9 of the IBA Rules of Evidence provides the principles by which an arbitral tribunal should consider when determining the admissibility of evidence. Article 9.3 was added in 2020 to allow arbitral tribunals the possibility of excluding evidence obtained illegally. For example, if one country’s law prohibited recording conversations without permission of those involved, then such recording may be considered illegal and be ruled out as evidence. However, by using the wording “may,” the added section still allows room for flexibility.
Implication of the IBA Rules to Korean Arbitrations
Foreigners in Korea going through an arbitration at the KCAB often face challenges regarding evidence discovery and disclosure. The Korean Arbitration Act (KAA) has no specific provisions regarding document production, and the Korean Civil Procedure Act also has no article on full documentary disclosure. However, the parties still have discretion under the KAA to agree on procedural rules, and often, they rely on the IBA Rules on Taking of Evidence. Moreover, IBA rules are widely applied and accepted by parties in most international arbitration cases, including those at the KCAB. The above changes to the IBA Rules on Taking of Evidence can help foreigners in Korea gather and present evidence in an efficient manner.
IPG has an active Arbitration and Dispute Resolution Practice handling international commercial arbitration disputes and some domestic disputes. IPG is rated a top dispute resolution firm in Korea for 2019 and 2020. We shall be writing more articles on arbitration over the next couple of weeks, please check back often. To schedule an appointment with a Korean Arbitration Attorney in Korea please schedule a call at: Schedule a Call with an Attorney.
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