DOI QR코드

DOI QR Code

The Scope of Application of North Korea's Foreign Economic Arbitration Act and Foreign Investment Act

북한의 외국인투자법과 대외경제중재법의 적용범위

  • Received : 2020.05.10
  • Accepted : 2020.05.31
  • Published : 2020.06.30

Abstract

The Scope of Application of North Korea's Foreign Economic Arbitration Act and Foreign Investment Act This article examines whether the Foreign Economic Arbitration Act and the Foreign Investment Act of North Korea apply to South Korean parties or companies. This article analyzes laws and agreements related to economic cooperation between South Korea and North Korea. Furthermore, this article compares and evaluates laws related to foreign investment and enacted in North Korea. Now, North Korea's door is closed due to economic sanctions against it, but it will be opened soon. Thus, this article prepares for the future opening of North Korea's markets. Is there a rule of laws in North Korea or just a ruler? Are there laws in North Korea? North Korea has enacted a number of legislation to attract foreign investors, referring to those Chinese laws. For example, North Korea enacted the Foreigner Investment Act, the Foreigner Company Act, the Foreign Investment Bank Act, the Foreign Economic Arbitration Act, the Foreign Economic Contract Act, the International Trade Act, and the Free Economy and Trade Zone Act, among others. Article 2 (2) of the Foreign Investment Law of North Korea states, "Foreign investors are corporations and individuals from other countries investing in our country." It is interpreted that South Korea is not included in the "other countries" of this definition. According to many mutual agreements signed by South Korea and North Korea, the relationship between the two Koreas is a special relation inside the Korean ethnic group. An arbitration between a South Korean party and a North Korean party has the characteristics of both domestic arbitrations and international arbitrations. If the South Korea and North Korea Commercial Arbitration Commission or the Kaesong Industrial Complex Arbitration Commission is not established, the possibility of arbitration by the Chosun International Trade Arbitration Commission, established under North Korea's Foreign Economic Arbitration Act, should be examined. There have been no cases where the Foreign Economic Arbitration Act is applied to disputes between parties of South Korea and North Korea. It might be possible to apply the Foreign Economic Arbitration Act by recognizing the "foreign factor" of a dispute between the South Korean party and North Korean party. It is necessary to raise legislative clarifications by revising the North Korea's Foreign Economic Arbitration Act as to whether Korean parties or companies are included in the scope of this Act's application. Even if it is interpreted that South Korean parties or companies are not included in the scope of North Korea's Foreign Economic Arbitration Act, disputes between South Korean companies and North Korean companies can be resolved by foreign arbitration institutes such as CIETAC in China, HKIAC in Hong Kong, or SIAC in Singapore. Such arbitration awards could be enforced in North Korea pursuant to Article 64 of North Korea's Foreign Economic Arbitration Act. This is because the arbitration awards of foreign arbitration institutes are included in the scope of North Korea's Foreign Economic Arbitration Act. The matter is how to enforce the North Korean laws when a North Korean party or North Korean government does not abide by the laws or their contracts. It is essential for North Korea to join the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and the ICSID Convention (Convention on the Settlement of Investment Disputes Between States and Nationals of Other States).

References

  1. 장원규, 북한의 투자보장과 분쟁해결 법제연구: 국제사회 규범과의 정합성 (통일법제연구 19-18-1-02), 한국법제연구원, 2019. 9.
  2. 김광수, "개성공단 국제화를 위한 남북 상사중재제도의 실천과제", 중재 제342권, 2014 가을.겨울
  3. 김미란, "북한나선경제무역지대 투자분쟁해결에 관한 연구 - 중재의 실효성을 중심으로", 홍익법학 제19권 제3호, 2018
  4. 박승일.만연교, "북한의 외국인 투자법제 현황과 과제 - 중국의 외국인투자법제와의 비교를 중심으로", 일감법학 제43호, 2019
  5. 오현석, "남북 투자분쟁해결의 법적쟁점에 관한 고찰", 중재연구 제29권 제2호, 2019
  6. 조영승, "남북 4개 경합의서의 공법 검토 -합의서의 법적 성격과 효력 및 민족내부거래성을 중심으로", 공법학연구 제20권 제2호, 2019
  7. 한명섭, "남북경제공동체 형성 가능성 및 공법적 과제", 북한법연구 제22호, 2019
  8. 허욱, 대북한 투자시의 분쟁해결 방안의 모색에 관한 소고 - 북한과 중국간의 민형사 사법공조 조약을 중심으로, 북한법연구 제22호, 2019
  9. 황보현, "개성공단 분쟁해결 제도 정비방안 - 남북상사중재제도를 중심으로", 중재연구 제29권 제4호, 2019