국제상사중재에서 증거조사 및 준거법 조사·적용과 관련한 국제사법 문제

Arbitration, which is not bound by the procedural and substantive laws of any particular state, requires a self-standing regulatory framework that reflects the unique characteristics of the arbitral process so as to minimize the unpredictability and uncertainty inherent in party autonomy and to function as a stable dispute resolution mechanism. Moreover, to ensure the effectiveness of arbitral proceedings and outcomes, it is essential to establish legal avenues through which national courts can provide reliable judicial assistance. This need is most acute in relation to evidentiary matters, where it is often difficult to reach a prompt and appropriate resolution without such supplementary mechanisms. Because arbitration does not operate on the premise of coercive authority, overcoming unequal access to evidence and collecting the materials necessary to ascertain the facts is considerably more challenging than in litigation. This raises critical questions about the legal bases on which parties may seek evidentiary measures in arbitration and about the laws and rules that govern the arbitral tribunal’s authority to order and manage such measures. The difficulty is compounded when relevant evidence is held by third parties who are not bound by the arbitration agreement and thus fall outside the tribunal’s authority, or when evidence is located in a jurisdiction other than the seat of arbitration, limiting the ability of the courts at the seat to provide support or cooperation. These circumstances highlight the need to examine the governing law applicable to the collection, taking, and evaluation of evidence in arbitration and to develop practical guidance. They also call for a careful assessment of how the evidentiary provisions of the Korean Arbitration Act and the rules of Korean arbitral institutions operate in practice, how they interact, and what direction future reforms should take. Because national legal systems differ substantially in their evidentiary regimes—and because the concept of evidence and the methods of fact-finding are not uniform—international dispute resolution itself faces significant obstacles in collecting and examining evidence depending on the type, holder, and location of the evidence. Ultimately, an appropriate characterization of each issue is required by taking into account the legislative purposes of substantive and procedural rules in different jurisdictions, the conditions under which they apply, and their respective legal effects, together with the arbitral values of party autonomy and tribunal discretion. Only then can arbitral tribunals provide procedures and awards that align with the expectations and understandings of parties from diverse legal traditions. Through a comparative analysis of major jurisdictions and recent judicial trends, this paper proposes a strategic roadmap for practitioners to navigate the complex landscape of cross-border evidence collection. While it is undeniable that evidentiary issues in arbitration bear strong procedural characteristics and are predominantly governed by procedural law, they should not be mechanically or uniformly classified as purely procedural. Rather, tribunals must assess the applicable law with careful attention to the context of each case, the relevant legal framework, legislative intent, the impact of the issue on the outcome, and the necessity of arbitral discretion.