Judicial Assistance in Taking of Evidence in International Commercial Arbitration
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International arbitration has become an increasingly common and effective way to resolve any dispute(s) that may arise between parties engaged in commercial relationships and businesses all over the world today. Because arbitration is based on the parties’ agreement to resolve their dispute(s) exclusively by arbitration, the arbitral tribunal, who is the decision maker of the dispute(s), derives its power and authority solely from the parties’ arbitration agreement. Therefore, arbitral tribunals lack any compulsory authority compared to national courts. While evidence plays a vital role in any dispute resolution, due to arbitral tribunals’ lack of coercive measures, such limitation on powers of arbitral tribunals makes national court intervention by way of judicial assistance inevitable in taking of evidence. In this article, the author examines the scope and extent of judicial assistance provided for by relevant legal authority, such as the national arbitration laws of Korea and the United States, in addition to discussion of the UNCITRAL Model Law on International Commercial Law and the IBA Rules on Taking of Evidence in International Arbitration. The author concludes that in order to properly respect party autonomy in choosing to arbitrate their dispute(s) and the arbitral tribunals’ authority and discretion in decision-making, arbitral tribunals should remain in control of seeking judicial assistance in getting access to evidence as well as examining such evidence. Court intervention, even in the form of providing assistance, should remain minimal in arbitral proceedings.
Abstract
International arbitration has become an increasingly common and effective way to resolve any dispute(s) that may arise between parties engaged in commercial relationships and businesses all over the world today. Because arbitration is based on the parties’ agreement to resolve their dispute(s) exclusively by arbitration, the arbitral tribunal, who is the decision maker of the dispute(s), derives its power and authority solely from the parties’ arbitration agreement. Therefore, arbitral tribunals lack any compulsory authority compared to national courts. While evidence plays a vital role in any dispute resolution, due to arbitral tribunals’ lack of coercive measures, such limitation on powers of arbitral tribunals makes national court intervention by way of judicial assistance inevitable in taking of evidence. In this article, the author examines the scope and extent of judicial assistance provided for by relevant legal authority, such as the national arbitration laws of Korea and the United States, in addition to discussion of the UNCITRAL Model Law on International Commercial Law and the IBA Rules on Taking of Evidence in International Arbitration. The author concludes that in order to properly respect party autonomy in choosing to arbitrate their dispute(s) and the arbitral tribunals’ authority and discretion in decision-making, arbitral tribunals should remain in control of seeking judicial assistance in getting access to evidence as well as examining such evidence. Court intervention, even in the form of providing assistance, should remain minimal in arbitral proceedings.
참고문헌 (19)
- Gary B. Born, "International Commercial Arbitration, Vol. II" (2009), Wolters Kluwer
- Gary B. Born, "International Arbitration: Law and Practice" (2012), Wolters Kluwer
- Kwang Hyun Suk, "Essays in International Commercial Arbitration Law, Vol. II" (2019), Parkyoung Publishing & Co
- Daniel J. Rothstein, "Proposal to Clarify U.S. Law on Judicial Assistance in Taking Evidence for International Arbitration", The American Review of International Arbitration, 19(1), pp.61~89 (2009)
- Kenneth Beale, "Solving the §1782 Puzzle:Bringing Certainty to the Debate over 28 U.S.C. §1782’s Application to International Arbitration", Stanford Journal of International Law, 47, pp.51~110 (2011)
- Louis Epstein, "Obtaining Evidence from Non-parties in International Arbitration in the United States", American Review of International Arbitration, 20, pp.421~459 (2009)
- Oliver L. Knofel, "Judicial Assistance in the Taking of Evidence Abroad in Aid of Arbitration: A German Perspective", Journal of Private International Law, 5(2), pp.281~309 (2009)
- Reinmar Wolff, "Judicial Assistance by German Courts in Aid of International Arbitration", American Review of International Arbitration, 19, pp.145~171 (2009)
- S. I. Strong, "International Commercial Arbitration: A Guide for U.S. Judges" (2012), Federal Judicial Center
- S. I. Strong, "Navigating the Borders Between International Commercial Arbitration and U.S. Federal Courts: A Jurisprudential GPS", Journal of Dispute Resolution (2012)
- "Laws, Statutes, Conventions, Rules and Commentary on Rules", ~
- "The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (The Hague Evidence Convention)", ~ (1970)
- The IBA Rules on the Taking of Evidence in International Arbitration, "Inquisitorial Rules on the Taking of Evidence in International Arbitration (The Prague Rules)", ~ (2018)
- "Korean Arbitration Act", ~ (2016)
- "UNCITRAL Model Law on International Commercial Arbitration", ~ (2006)
- "The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards", The New York Convention, ~ (1958)
- "United States Federal Arbitration Act", ~
- "United States Code Article 28", ~
- "2012 UNCITRAL Digest of Case Law on the Model Law on International Commercial Arbitration", ~ (2012)