Kevin Kim

Peter & Kim

Seoul www.peterandkim.com

kevinkim@peterandkim.com Tel: +82 10 2021 0024

Biography

Kap-You (Kevin) Kim is a founding partner at Peter & Kim in Seoul. He was previously a senior partner at Bae, Kim & Lee LLC, where he headed the international arbitration practice for three decades. Kevin served as secretary general of the ICCA for four years and as vice president of the ICC Court for 10 years. Kevin has acted as counsel, presiding arbitrator, co-arbitrator or sole arbitrator in more than 300 international arbitration cases under various arbitration rules.

While I have been involved in many cases, two cases immediately come to mind. The first is the ICSID case brought by Lone Star Funds against the Republic of Korea which was the first ever investment arbitration case brought against Korea. The aggregate amount in dispute is estimated to be around US$5 billion and we are currently awaiting the final award.

The second case is the Hyundai Oil Bank case, with an amount in dispute of approximately US$4 billion. The tribunal ordered the sale of 70% of the opposing party’s shares in an oil refining company jointly owned with our client, thereby transferring control of the company. We were awarded GAR’s “Win of the Year” in 2011 for this achievement.

What makes Peter & Kim stand out from its competitors in the market?

I believe that Peter & Kim stands out for its uniqueness. We established Peter & Kim to offer a truly international platform with a team culturally rooted in Asia-Pacific and western Europe. The firm thrived on identifying a gap in the market. Keeping a tight team of lawyers with expertise in serving European and Asian clients has given us more opportunities to represent a diverse range of claims and recent successes have shown that this formula works.

While our size enables us to generally remain clear of conflicts, it has also allowed us to create a team of closely connected lawyers who can be trusted and work dynamically and in synergy. Expertise and past experiences are easily and commonly shared between offices, which promotes problem-solving skills and creativity. In addition, the number of lawyers in our firm acting as arbitrators gives us valuable insight that benefits our clients.

How do your former vice-chairmanships and memberships at arbitration councils and committees enhance your practice?

I believe these roles have complemented my practice both as a counsel and as an arbitrator. My roles as vice-president of the ICC International Court of Arbitration or as Advisory Board Member of the International Council for Commercial Arbitration for instance have allowed me to gain intimate knowledge of the working procedures of various arbitral institutions and the considerations that underly the management of cases by such institutions.

This has allowed me to better understand the application of the arbitration rules, which is beneficial to my practice as a counsel. I have also been able to take advantage of these opportunities as I was able to push for greater efficiency to be applied to the conduct of proceedings, which I consider desirable both as an arbitrator and as counsel. Notwithstanding, I believe that it is the clients who are ultimately the true beneficiaries of these experiences.

How has the coronavirus pandemic impacted third-party funding in arbitration, if at all?

For our part, we have yet to see the pandemic having any significant impact on third-party funding. Generally, thirdparty funding was already on the rise even prior to the pandemic as evidenced for example by Hong Kong permitting thirdparty funding in 2019.

Nevertheless, I noticed that the interest in third-party funding has been further amplified by the coronavirus pandemic as it not only initiated new claims but also impacted companies due to a, at times severe, reduction in cash flow. The overall lack of funds was naturally conducive to more claims requiring third-party funding. However, this increase in demand is not without impact. While the competition to receive funding was already steep prior to the pandemic, due to the greater number of disputes requiring third-party funding, I believe that successfully obtaining funding has become even more challenging and that this trend is unlikely to change in the short term.

Some practitioners have told us of greater international harmonisation between arbitration codes of conduct, particularly for investor-state arbitration. Is this something you see, and how could it change arbitration?

I am aware that, for instance, UNCITRAL is working on putting together a code of conduct for investment adjudicators to harmonise the various sets of ethical standards applicable to ISDS tribunal members.

I welcome this kind of initiative as levelling the playing field is necessary to avoid running across the application of divergent ethical standards in a given situation. This has become an issue with globalisation and transnational legal practice. I see this as particularly important for the proper enforcement of awards. Harmonised codes of conduct may also be a solution to the increased scrutiny that comes with investor-state arbitration. I would, however, caution against the singlehanded takeover of a code of conduct from a specific jurisdiction as harmonisation should not be achieved at the expense of fairness and balance.

How is increased scrutiny towards social and environmental welfare affecting investment-treaty arbitrations?

The general trend goes towards a rise in the number, as well as variety, of claims related to social and environmental welfare and more generally, environment, social and governance issues. Notably, a few high-stake claims have brought much publicity to the matter. We have for instance seen that the energy sector has been particularly affected by such claims. Spain and the aftermath of the modification of the incentive regime for renewable energy is a prime example of this as I have seen as the president of an ICSID ad hoc committee for such a case prior to it settling.

As a result of increased civil society advocacy regarding investor-state arbitration relating to social and environmental welfare, the issue has slowly made its way to the top of the agenda for many states. As such, model agreements and investment treaties have started incorporating provisions relating to sustainability. Likewise, just like the US re-entered the Paris Agreement, some states may try to join in on achieving greater sustainability goals. I believe that this may result in a potential increase of investor-state claims, particularly considering the breadth of causes of actions that can be brought under the topic of social and environmental welfare.

To what extent does the shift towards virtual arbitration influence counsel when it comes to selecting the geography of their arbitrator’s seat?

Speaking from my experience, I believe that while virtual arbitration has brought increased flexibility to the arbitration practice, its impact will not be so substantial as to affect the parties’ considerations when selecting the geography of their arbitrator’s seat.

That is because while parties have warmed up to virtual hearings, I find that some parties, and especially governments, still appear to prefer traditional in-person hearings. Commercial parties may be more inclined to accept virtual hearings, but key considerations when selecting an arbitrator will rather focus on availability, relevant experience, knowledge of the applicable law and industry as well as whether the arbitrator has civil or common law experience needed.

In addition, in my experience, as certain types of hearings are better held in person, geography may not be a leading factor for selection. For example, I recently participated in a second CMC in Tokyo as the president of a tribunal during which I applied the Gangnam Principles. Because the CMC was conducted over a full day during which the parties were asked to make submissions on their respective positions and the tribunal put questions to the parties, it was decided that an in-person format was desirable. This also allowed the tribunal to meet prior to the CMC. While all members of the tribunal were theoretically based in Asia, one tribunal member and I came from Europe and the US. This is a clear example on how arbitrators and counsel are now starting to travel again and may not be in their home jurisdiction prior to or at the time of a hearing. As such, as parties’ preference remains for an in-person hearing and/or due to circumstances calling for such a format, the influence of the geography of their arbitrator’s seat should not be overstated.

What steps can be made to increase diversity in the arbitration field?

Diversity is manifold and concerns race, gender, etc, as well as arbitrator, counsel, and arbitral institutions. The arbitration community has made a slow but growing effort to improve diversity over the past decade or so and the newly created pledges and taskforces will hopefully improve the current situation.

Focusing on diversity in arbitrators, I would suggest for lawyers and co-arbitrators to nominate women and minority lawyers as well as younger practitioners as chairperson as they are still currently less likely to receive a nomination as co-arbitrator, even when they lack experience. Indeed, if nominated as a chairperson, they would then be able to lead the proceedings while being assisted by co-arbitrators who would be able to provide guidance and assistance. This would likely result in more experience and visibility, leading to repeat appointments by parties and/or arbitral institutions.

On a more theoretical plane, arbitrators should endeavour to remain cognisant at all times of the impact of cultural differences on proceedings. Arbitrators should not let common sense as applied in their jurisdiction restrict their understanding of a case. Diversity is vital to arbitration as it is not a system ruled by a single set of laws and intended for users coming from a single jurisdiction.

Peers and clients say: “One of the leading arbitrators in Korea” “Kevin is highly experienced and sophisticated” “A leader in the field”