The IBA Arb40 Subcommittee launched a competition to compile and publish poignant stories from this period, forming a distinctive compendium of shared experiences. Exploring the depths of the international arbitration community, the IBA Arb40 Common Heritage of International Arbitration Competition for the Most Meaningful Personal Stories unfolds a tapestry of diverse narratives.
Spanning the globe, these stories capture the human side of international arbitration, showcasing triumphs, challenges, and the interconnectedness that defines our professional journey. Each article in this collection offers a unique lens into our Common Heritage of International Arbitration, underscoring the significance of camaraderie, mentorship, and shared experiences within our global community.
The following article received high commendation in the competition.
Although it might be difficult to believe now, the times when no one had really heard of a ‘virtual hearing’ were not too long ago. Of course, we used video conferencing for procedural meetings and for the testimony of certain witnesses, but to use it for a full hearing on the merits was almost unheard of.
In November 2018, the 7th Asia Pacific ADR Conference was held in Seoul, Korea. I usually moderate one session at the ADR Conference, but that year I was not able to attend in person as I had a four-week hearing in London. This got me thinking that maybe we could choose video conferencing as the topic of discussion and raise ideas and arguments regarding the use of video conferencing in international arbitration. Having had more occasions to use video conferencing during that year, I had encountered various problems that I thought would make for an interesting discussion.
One of those interesting situations arose when I was acting as arbitrator and two third-party witnesses were set to testify by video. Arrangements had been made for them to give evidence from a local court that had the appropriate facilities. However, while one witness appeared, the other one did not. We initially thought that he was no longer available to testify, but then we were contacted by the witness. He had been unable to access the building and was stuck in the lobby! This was not due to any technical issue or interference from the other party but was merely a logistical accident. This made me think that we needed some way to ensure that the logistics were established in advance so that video conferencing could be used safely, effectively, and fairly in international arbitration.
I proposed this topic to the other speakers on the ADR Conference panel. We evaluated how we had conducted video conferences and the problems we had encountered: witness coaching, connection issues, etc. I moderated the panel from London, fully dressed up at 3 o’clock in the morning with my face blown up on a huge screen in Seoul. People found it quite amusing. We discussed our experiences and shared suggestions regarding best practices for the use of video conferencing, including the technical specifications, the testing requirements, and issues relating to the conduct of any remote testimony.
The participants in the panel felt the topic was interesting but were quite unsure if a protocol or guidelines relating to virtual hearings/conferences were needed, as there were just so many protocols at the time — “No more protocols!”, some people said. However, we soldiered on and recorded our thoughts and discussions, as a result of which the Seoul Protocol was born.
Little did we know that the COVID-19 pandemic was just around the corner. Nobody really paid attention to the Seoul Protocol until the pandemic, but then all of a sudden virtual hearings became a reality. I was a vice-president of the ICC at the time, and we were suddenly having many discussions on how to make guidelines for virtual hearings. People started to wonder how I had anticipated the future of making the Seoul Protocol. Of course, I had no idea COVID was coming — if I had, I wouldn’t have launched my law firm in early 2020.
In fact, the Seoul Protocol was more focused on witness examination by video conferencing, while there are additional issues that must be considered if the entire hearing is to be conducted virtually. My belief is that eventually there will be certified hearing centres that can guarantee both the logistical requirements and that witnesses will not be coached during their testimony. In the context of the latter, I think in-person marshalling might be the best approach, as even a 360-degree camera is not enough to prevent the many ways in which a witness may be coached. This is a simple thing and requires only one person to watch over the testimony. I hope that arbitral institutions take on this role and that they also certify other venues like universities so there are more options available all over the world.
I appreciate that there are issues regarding virtual hearings that are not so easily solved. For example, not every country (or city) has a good internet connection or the necessary facilities for witnesses to see documents. Time zone issues will also always remain. Asia is perhaps the biggest victim of this, especially with most tribunals sitting in Europe or America. But good organisation allows you to work at strange hours of the night, with the advantage that you can wear slippers and short pants — just like I did at 3:00 am in London when we first discussed the Seoul Protocol.
ABOUT THE AUTHOR
Kap-You (Kevin) Kim is a founding partner of Peter & Kim, a leading transcontinental arbitration boutique with offices in Switzerland, Korea, Australia, and Singapore. He was previously a senior partner at Bae, Kim & Lee where he co-founded and headed the Domestic and International Disputes Group for three decades. Kevin has acted as counsel, co-arbitrator, sole arbitrator and presiding arbitrator in more than 300 international arbitrations under all major institutional rules. Kevin was previously the secretary general of ICCA, a member of the LCIA Court, a Vice-President of the ICC Court, and a vice chair of the IBA arbitration committee.
This article was first published on the website of the Arbitration Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.
Available at: https://www.ibanet.org/Arb40-Competition