국제중재의 증거절차가 한국 증거법에 주는 시사점

Implications from International Commercial Arbitration for Korean Evidence Law

There have been persistent calls for legislation to provide parties in Korean civil litigation with additional means to gather facts and evidence. However, the evidence collection procedures permitted to parties under common law jurisdictions, e.g. discovery in the U.S., differ significantly from continental civil law jurisdictions including Korea in their procedural fundamentals, and are difficult to introduce into Korea. International arbitration proceedings, initiated by the parties' agreement, are being smoothly managed even though the arbitrators do hot have coercive methods of the national courts. Therefore, examining the evidentiary procedures in international arbitration can contribute to improving Korean evidence law. Accordingly, this paper first provides an overview of evidentiary procedures in international arbitration and then examines how conflicts between continental and common law systems are addressed in international arbitration evidentiary procedures. Next, it examines the circumstances and grounds under which arbitral tribunals issue disclosure orders for evidence that parties do not wish to submit, as well as the scope and duration of such orders. This paper also examines in detail the arbitral tribunal's power to impose sanctions that make such disclosure orders effective, including, most importantly, the power of adverse inference. Finally, this paper examines the implications of these evidentiary procedures in international arbitration for Korean evidence law.