Mr Kim, Senior Partner at Peter & Kim, Korea, has over 30 years of experience in international arbitrations. He is a former Vice President of ICC International Court of Arbitration, Secretary General of ICCA, and Vice Chair of the IBA Arbitration Committee. Currently, he serves as a Chairman of the International Arbitration Committee formed by the Korean Commercial Arbitration Board (KCAB) and is an adjunct Professor at the Seoul National University Law School. He also contributes to academia by engaging in writing and has various publications to his name. He has been globally recognised for his work in the field, by way of various awards and accolades such as Global Elite Thought Leaders 2021 and Global Arbitration Review’s Leading Practicing Arbitration Expert in Korea (2006-2020).
He has been interviewed by Shruti Dhonde, EBC/SCC Online Student Ambassador who is currently pursuing law from MNLU, Mumbai.
1. I would like to begin by asking who are the key stakeholders in making a jurisdiction arbitration friendly, how can they contribute to its development?
Efficient and user-friendly arbitration rules are no guarantee that a specific jurisdiction is arbitration friendly as arbitration rules developed by arbitral institutions are not bound by geographical considerations. Nonetheless, international arbitral institutions may contribute to making arbitration more accessible in a given jurisdiction by opening local offices and facilities, in which hearings and seminars may be conducted. Singapore International Arbitration Centre (SIAC) and Maxwell Chambers are a prime example of this.
However, the push should not only come from the providers of arbitration. Senior practitioners are in a unique and yet ideal position to contribute to the development of arbitration in a certain jurisdiction as they are acutely aware of the needs and wants of the corporations and individuals having recourse to arbitration, while at the same time being aware of the weaknesses of their jurisdiction and being in close contact with regulatory agencies and arbitral institutions. This provides them with a full picture of a given jurisdiction’s stance on arbitration, which should prove helpful when trying to advocate for more and better arbitration in their jurisdictions. In addition, senior practitioners, with their knowledge and experience, bring confidence to local clients in their ability to lead and win arbitrations, surely increasing the number of disputes by local clients through arbitration. The rise of arbitration in Korea best exemplifies this.
2. In your opinion, should these stakeholders receive training to ensure that they further the key principles of arbitration and positively contribute to its development? How would you design the curriculum for such a course?
Providing some sort of training to both lawyers and arbitral institutions may be beneficial to the growth of arbitration. Rather than a one-way course, I believe that holding an interactive workshop such as a mock arbitration would allow to stress test the substantive and procedural strengths and weaknesses of both counsel and arbitration institutions when conducting arbitrations. A subsequent roundtable would then allow to spot, discuss and attempt to come with solutions for any previously identified shortcomings.
3. In your lecture, you had mentioned that diversity has helped arbitration in Korea grow. Could you shed some light on how diversity helps and how can developing arbitral jurisdictions promote diversity in arbitration?
Starting with a bigger picture, diversity is vital to arbitration as arbitration is not a system ruled by a single set of laws and intended for users coming from a specific jurisdiction. I believe that arbitration is most effective when it arises out of a blend of various legal and procedural rules. For instance, while arbitration usually applies internationally accepted procedural principles, if the application of certain domestic principles would be more appropriate in the circumstances of the case, then such domestic principles should be followed. Arbitration grows when it recognises that there is not one single legal tradition or procedural practice that is superior to the other.
On a smaller scale, diversity of the arbitration community is also beneficial. Different perspectives and solutions will be brought by lawyers, arbitrators and other actors of arbitration if they come from various legal and cultural backgrounds. Not only will this enhance the work experience of arbitration users, but it should also guarantee that the arbitral procedure will be tailored to the needs of a given case.
Developing arbitral jurisdictions can take part in diversity by making sure procedural flexibility is guaranteed. This should not mean that the local procedural and legal principles should be disregarded, but rather that the needs of a given case should be prioritised, whether these call for the application of local principles or internationally agreed principles. Developing arbitral jurisdictions could also consider establishing committees coming from a variety of backgrounds to transcend any legal and cultural barriers.
4. Could you share with us some of the initiatives that you, as part of KCAB, are working on, to further the emergence of Korea, as an arbitration-friendly jurisdiction?
I worked with the KCAB to create a set of guidelines for video conferencing in international arbitration. From this came the Seoul Protocol on Video Conference in International Arbitration. The Seoul Protocol is meant as the amalgamation of best practices for the planning, testing and use of video conferencing in arbitration hearings. As virtual and hybrid hearings will likely remain part of the arbitration landscape, such guidelines have become essential to ensure the efficiency and fairness of the arbitration process.
5. Having participated in international arbitrations in the capacity of a counsel as well as an arbitrator, what would you say your key learning in each role has been?
Being a counsel in international arbitrations has taught me the importance of having at least one arbitrator that is acknowledged on the cultural and legal complexities of the dispute. As the users of arbitration are becoming increasingly diverse, so are the disputes. For instance, the principles of a certain legal system may be intricate or the manner of conducting business may be specific to a certain country or region. Having an arbitrator who is able to understand such complexities is a must to avoid bad outcomes.
Related to this, I have realised that as an arbitrator, it is important to keep an open mind to the attitudes of counsel and characteristics of different cultures. It is common for experienced arbitrators to develop a standard procedural format based on their prior appointments. However, it is important to remember that each case is unique and may require flexibility.
6. In your experience, how has the growth in virtual arbitrations during the pandemic, impacted the arbitration landscape, particularly, evidence-heavy arbitrations?
Speaking based on my personal experience, I believed that the growth in virtual arbitrations had a limited impact on arbitration. While first sceptical, lawyers have adapted to the virtual format and are able to present arguments and evidence as if they were in an in-person hearing.
In fact, for evidence-heavy arbitrations, thanks to hyperlinked exhibit lists being more commonly available and arbitrators having several screens during hearings, the presentation and review of exhibits has been facilitated.
7. What message would you like to give to arbitration enthusiasts and students looking to work in the field?
Working towards improving skills and gaining experience is important for one’s career. However, a successful career is also based on longevity and longevity is unattainable without health and passion. As such, I would like to recommend all arbitration enthusiasts and students looking to work in the field to pay attention to their mental and physical health and to find a way to bring happiness and a smile to their work life.
8. On a concluding note, how important is doing proper legal research and how should law students equip themselves with legal research skills? Could you please throw some light on “exhaustion of research” and its importance in law.
Doing proper legal research as a junior lawyer in a law firm is obviously essential as many disputes will revolve around legal issues and partners usually do not have the time to do so.
While conducting legal research is important, the most crucial point is how the results from this research are then presented and organised. Students and junior lawyers often spend too much time doing research and to get lost in it. More is not always better, especially when the findings of the research must then be summarised in a detailed but concise manner to be user-friendly. It is thus important to think about the purpose of the research and keep within the scope of what you are asked to do.
Due to the principle of confidentiality of commercial arbitration, it also happens that the information one is looking for may simply not be publicly available. That much is understandable so long as proper and thorough research was conducted.
