Judicial Assistance in Taking of Evidence in International Commercial Arbitration

International arbitration has become an increasingly common and effective way to resolve any dispute(s) that may arise between parties engaged in commercial relationships and businesses all over the world today. Because arbitration is based on the parties’ agreement to resolve their dispute(s) exclusively by arbitration, the arbitral tribunal, who is the decision maker of the dispute(s), derives its power and authority solely from the parties’ arbitration agreement. Therefore, arbitral tribunals lack any compulsory authority compared to national courts. While evidence plays a vital role in any dispute resolution, due to arbitral tribunals’ lack of coercive measures, such limitation on powers of arbitral tribunals makes national court intervention by way of judicial assistance inevitable in taking of evidence. In this article, the author examines the scope and extent of judicial assistance provided for by relevant legal authority, such as the national arbitration laws of Korea and the United States, in addition to discussion of the UNCITRAL Model Law on International Commercial Law and the IBA Rules on Taking of Evidence in International Arbitration. The author concludes that in order to properly respect party autonomy in choosing to arbitrate their dispute(s) and the arbitral tribunals’ authority and discretion in decision-making, arbitral tribunals should remain in control of seeking judicial assistance in getting access to evidence as well as examining such evidence. Court intervention, even in the form of providing assistance, should remain minimal in arbitral proceedings.