Yulchon on virtual international arbitration hearings in South Korea during the Covid-19 pandemic
With no end in sight in the foreseeable future, we are all adapting to life in the Covid-19 world that has become the new normal. International arbitration is no different. Once governmental lockdowns along with social distancing regulations and norms had made in-person arbitration hearings impractical if not downright impossible, it was clear that parties and arbitral institutions would have to derive alternative solutions. This became especially necessary once disputing parties had realised that simply postponing in-person hearings scheduled to take place in 2020 to later dates could not be a permanent solution.
Prior to the Covid-19 outbreak, the Korean Commercial Arbitration Board (the ‘KCAB’) first introduced the Seoul Protocol on Video Conference in International Arbitration (the ‘Seoul Protocol’) in November 2018, and released a revised and upgraded version on 18 March 2020. Significantly, the Seoul Protocol preceded comparable guidelines released by other arbitral institutions including the ICC, and provides a concise but overarching baseline for parties to prepare their own protocols for conducting virtual international arbitration hearings.
If there is a silver lining to be found, it might be the increased creativity that practitioners have been relying on in order to circumvent the obstacles posed by Covid-19.
Touching upon indispensable elements of virtual hearings such as witness examinations, documentary evidence, and technical requirements, the Seoul Protocol enables parties to take a piecemeal approach by adopting certain provisions while customising or further developing others. Not only that, the Seoul Protocol is accompanied by the Technical Specifications in which the recommended technical specifications for video, data conference/data collaboration, audio, picture, and channels/bandwidth and bridging are set out in detail. Given Korea’s advanced and extensive broadband infrastructure, this meant the KCAB was well-equipped to conduct virtual hearings when the need came.
Last fall, Yulchon’s international dispute resolution team also participated in its first virtual hearing administered under the KCAB’s International Arbitration Rules. Some initial difficulties were expected during the preparatory work leading up to the hearing including minor inconveniences such as reserving the most suitable conference room and compiling the key exhibits into a digital hearing bundle. In particular, fine-tuning the audio quality proved to be quite the challenge. Fortunately, trial runs helped the parties identify and address potential technical issues in advance. Thanks to such efforts, the involved parties managed to conduct the actual hearing without any glaring issues. Yulchon has successfully participated in several other virtual hearings since then, with each hearing being noticeably smoother than the previous one.
So are virtual hearings in international arbitration here to stay for good, or are they bound to fade into obscurity once the Covid-19 pandemic has subsided? At least in Korea, Yulchon’s experiences thus far strongly hint that the former may turn out to be the case. Needless to say, there are of course drawbacks to virtual hearings. For instance, virtual hearings can be relatively more draining than in-person hearings and might raise concerns pertaining to confidentiality. Virtual hearings also might not be a viable option in every jurisdiction, as they require all of the parties to have symmetrical or at least comparable internet speeds. Finally, it might be difficult to fully deliberate certain types of complex disputes through virtual hearings.
Nevertheless, the advantages are unmistakable. From the client’s perspective, costs can be saved by opting for a virtual hearing over an in-person hearing. As for the arbitrators and legal counsel, virtual hearings offer the possibility of flexible scheduling, which is critical since lawyers frequently encounter scheduling problems in international arbitration due to the serious time commitment and international travel that in-person hearings require. Therefore, it seems likely that there will be a constant demand for virtual hearings in international arbitration moving forward. In addition, with newly introduced protocols for virtual hearings now in place, international arbitration should continue promoting hybrid hearings, in which only some of the parties or individuals participate virtually, that are already a popular alternative for in-person hearings.
The legal industry has been forced to adapt to and reinvent itself during the ongoing Covid-19 pandemic. If there is a silver lining to be found, it might be the increased creativity that practitioners have been relying on in order to circumvent the obstacles posed by Covid-19. The proliferation of virtual hearings in international arbitration is a perfect example of this, and in Korea, virtual hearings are definitely here to stay.
Yulchon LLC is a full-service international law firm headquartered in Seoul, South Korea.
Yun Jae Baek
Tel: +82 2 528 5473
F: +82 2 528 5228
E: firstname.lastname@example.org Yun Jae Baek is a partner at Yulchon LLC and the co-chair of its international dispute resolution team. He received an LLB from Seoul National University and an LLM from Harvard Law School. Mr Baek has acquired expert knowledge and experience for over three decades and is qualified to practice in both Korea and New York. He is considered one of Korea’s top lawyers in the areas of international arbitration, M&A, aviation, and general corporate practice. Currently, Mr Baek serves as arbitrator for many arbitral institutions including the KCAB, AIAC, and the ICC. His reputation has led him to being selected as a leading lawyer by renowned publications such as Chambers Global and Who’s Who Legal.
Jeonghye Sophie Ahn
Tel: +82 2 528 5306
F: +82 2 528 5228
Jeonghye Sophie Ahn is a partner at Yulchon LLC and the co-chair of its international dispute resolution team. She received an LLB from Seoul National University and an LLM from Harvard Law School. Ms Ahn focuses on international disputes and has acted as counsel and arbitrator in international arbitrations administered under the SIAC, ICC, KCAB, and UNCITRAL Rules arising from a diverse range of commercial and corporate transactions including joint venture, intellectual property, media and telecommunication, and construction. She also specialises in arbitration-related proceedings in court and has represented both foreign and domestic corporations in seeking or resisting enforcement of awards, interim measures, and injunctions.
Min K. Lee
Tel: +82 2 528 5907
F: +82 2 528 5228
Min K. Lee is a foreign attorney at Yulchon LLC and a member of its international dispute resolution team. He received a BA from Johns Hopkins University and a JD from NYU School of Law. He is qualified to practice in Massachusetts, and represents parties in various types of cross-border disputes.
Tel: +82 2 528 5747
F: +82 2 528 5228
Hyunah Park is a partner in the international dispute resolution team at Yulchon’s dispute resolution practice where her practice is mainly focused on domestic litigation and international arbitration for international disputes. She also specialises in insurance law and has been dealing with many insurance-related cases and provided legal advice with regards to insurance disputes. Ms Park received an LLB from Korea University and an LLM from University College London. She is licensed to practice in Korea.