18 March 2020
Given the global nature of international arbitration, witnesses are often required to travel great distances to provide testimony during a hearing. When such witnesses are unable to attend in person, the parties and the Tribunal are often left in the difficult position of determining how much weight to afford certain evidence (including, for example, witness statements). However, with the advent of new powerful technologies, parties are increasingly turning to remote video conferencing as a solution to this problem.
Every new technology brings with it certain risks and video conferencing is no exception. When utilizing this option, a tribunal must consider how to effectively, safely and fairly use video conferencing to best serve the interests of the arbitration. To this end, the Seoul Protocol on Video Conferencing in International Arbitration (the “Seoul Protocol”) was introduced at the 7th Asia Pacific ADR Conference, held in Seoul, Korea on 5-6 November 2018. The Protocol was drafted and discussed by a panel of arbitration practitioners who compiled and synthesized their best practices for planning, testing and performing video conferencing for international arbitrations. The Seoul Protocol was drafted and discussed by a panel consisting of Kap-You (Kevin) Kim as moderator (Partner, Peter & Kim), Yu-Jin Tay (Partner, Mayer Brown), Ing Loong Yang (Partner, Latham & Watkins LLP) and SeungMin Lee (Partner, Shin & Kim). Since then the draft was revised and upgraded to reflect comments from the Seoul International Dispute Resolution Center (SIDRC).
As international arbitration becomes increasingly globalized, and as the technology underlying video conferencing becomes increasingly powerful and sophisticated, it is reasonable to conclude that practitioners may increasingly turn to video conferencing when witnesses are unavailable for in-person examination. To this end, it is in the interest of the arbitration community to develop a sensible and clear protocol of best practices to ensure that such conferencing is effective, fair and efficient.
As mentioned above, we welcome comments on the Seoul Protocol. The full text of the Seoul Protocol is available at the KCAB INTERNATIONAL website or the attached, and comments may be sent to international@kcab.or.kr.
