국제중재에서 미국과 일본의 증거조사절차에 관한 연구

A Study of the Procedures of Evidence in International Arbitration of United States and Japan in the Perspective of Comparative Law

This study investigates and compares the procedures of evidence of United States and Japan in the perspective of international commercial arbitration. First, we show that the main currents of arbitration of United States and Japan. In United States, the concepts of court changes into multi-door courthouse and there are diverse kinds of ADR including arbitration. On the other hand, in Japanese society, there are cultural roots of ADR, such as harmony in rural society. Second, we compare pros and cons of common law system and civil law system, since United States belongs to the category of common law system and Japan belongs to the category of civil law system. Third, we compare the common elements and differences among the laws and practices of the procedures of evidence in international arbitration between United States and Japan. The evidence presented in the arbitration tribunal consists of documents, testimony of witnesses and experts, and site experiment etc. The main difference among United States and Japan originated from the fact that discovery plays an important role in United States. In contrast, there is no discovery type of evidence-gathering process in Japan. Second, hear-say evidence can be accepted in both countries, United States and Japan. Third, the deposition is accepted even in law system United States, But, the deposition is not permitted in Japan as yet. Although, there are differences in the practices of common law counsel and civil law counsel, there is a tendency of narrowing the gap between two traditions of law system. The IBA rules of evidence shed a light on this issue.