Matthew J Christensen

Kim & Chang

Seoul www.kimchang.com

matthew.christensen@kimchang.com Tel: +82 2 3404 0227

Biography

Matthew Christensen is a senior foreign attorney in Kim & Chang’s international arbitration & crossborder litigation practice. Throughout his career, Matthew has acted for a broad range of private and public sector clients in dozens of substantial international arbitration cases under the rules of major arbitral institutions, including many substantial disputes arising from high-value and complex international construction projects. Matthew is a fellow of the Chartered Institute of Arbitrators and currently serves as co-chair of the International Construction Projects Committee of the Inter-Pacific Bar Association. He received his law degree from Harvard Law School in 2002 and also holds an A.M. degree in East Asian Regional Studies from Harvard University (1995) and an Honors B.A. in English Literature from the University of Utah (1992).

As an American lawyer based in the Korean market, how did you become involved in construction disputes and what unique approaches or perspectives do you bring to the table?

I have had the privilege of working on many types of arbitration cases, but would characterise myself as an arbitration lawyer who specialises in construction disputes. Candidly, my initial involvement in this area was driven by my sense as a junior lawyer that I might have greater opportunities in such cases for involvement in oral advocacy at the hearing. But I have continued to gravitate toward construction disputes because I enjoy the tangible nature of the projects and the interface with technology and engineering. What I bring to the table is that I speak and understand Korean at an advanced level. This allows me to take evidence from Korean engineers in their native language and then present oral and written submissions to an Englishspeaking tribunal. I find this process both endlessly fascinating and deeply rewarding.

What do you enjoy most about specialising in construction arbitration?

I particularly enjoy the special challenges that construction disputes present to me as an advocate. When I am able to find the compelling stories in a technicallycomplex construction dispute and then tell them in a cogent manner it is always very satisfying. I would also mention the friendships I have forged within the community of construction-specialised professionals. The fact that it is a smaller community can also have a positive effect in promoting collegiality and ethical conduct, which are important to me.

What impact has the covid-19 pandemic had on construction arbitration?

In Korea (as in most other jurisdictions with which I am acquainted), the pandemic has not resulted in a flood of related construction disputes, as some had predicted. But from the perspective of an arbitration lawyer, the pandemic has fundamentally altered the way we think about and use technology, especially in the area of virtual hearings. Before the pandemic, we used to ask ourselves whether there was any element of a hearing that needed to be done virtually, with the case of a witness stuck on a remote project site as a typical example. But virtual hearings have become the new normal and default option to the extent that we now ask ourselves whether there is anything about the current case that requires an in-person hearing. This is a sea-change in arbitral practice and we have the covid-19 pandemic to thank for it.

In your view, what are the benefits and challenges of virtual hearings for construction disputes?

Virtual hearings will continue to be used for procedural hearings in construction arbitration as in other types of disputes, and the cost savings associated with virtual hearings, not to mention the reduced environmental impact, will militate against a reversion to in-person hearings in many cases. But virtual hearings can be less appropriate for high-value and complex disputes, or where physical (or exportcontrolled or classified) evidence plays an important role, or where extreme time zones are involved – obviously factors that characterise many construction disputes. There are also important benefits to having the tribunal as well as the parties’ legal teams together in one place. And some things get missed in a virtual hearing. From the advocate’s perspective, it can be harder to see what points the tribunal finds interesting or unclear, and I’ve also heard more than one arbitrator say they miss seeing the facial cues from junior members of the counsel team – who tend to have their cameras off in a virtual hearing – when a point has landed squarely for or against their side (underscoring the continuing importance of what we in Korea call pyojeong gwalli or facial expression maintenance).

What impact will technological development have on the Korean construction sector over the next five years?

Technological development has played an important role in the growth of the Korean construction industry historically and the process continues in the present day. While the use of drones and other technology on construction sites tends to attract a lot of attention, I am particularly interested in the increased use of Building Information Modeling (BIM) solutions by Korean contractors. This process is well underway, and will have far-reaching implications for the Korean construction sector. As the use of BIM spreads, I can even see the potential for a corresponding rise in the use of modeling technologies as aids in representing complex construction processes in the arbitration context, as the benefits of those technologies become more apparent to clients and the associated costs easier to justify.

Why is mediation becoming an increasingly important element in dispute resolution in the construction industry?

When deployed at the right time in an appropriate case, mediation can be a singularly powerful and effective dispute resolution mechanism. In many respects, mediation is tailor-made for the construction industry, where the preservation of relationships tends to be a worthwhile objective even for parties to a contentious dispute. For reasons often rooted in internal decision-making culture, many Korean corporates are still resistant to trying mediation in high-value international disputes. But this is gradually changing and in my view the prospects for mediation in international construction disputes remain bright.

Peers and clients say: “He has a very good style of cross-examination. He knows the documents very well and is able to take on difficult points” “Matthew is very smart, reliable and knowledgeable” “He is very talented and has a full understanding of the facts and legal issues in a dispute”