Journal of Arbitration Studies (한국중재학회지:중재연구)

The Korean Association of Arbitration Studies (한국중재학회)
권호 표지
DOI QR코드

DOI QR Code

A Study of the Arbitration Issue on the KOREA and the U.S. FTA

  • Received : 2017.04.22
  • Accepted : 2017.05.26
  • Published : 2017.06.01
Download PDF
⟨ Previous Next ⟩

Abstract

International legal reviews on ISD, a procedure for resolving disputes under the Korea-US FTA, are examined from the perspective of law. If the ISD system does not exist, even if the investor suffers damage due to the illegal act of the host country, he or she must file a lawsuit through the court of the host country, which is unreasonable from the investor's point of view and makes it difficult to guarantee fairness and transparency. Some of the Koreans pointed out that there are some problems with the KORUS FTA dispute settlement regulations, and that the United States federal courts are taking a friendly attitude to the decisions made by the US Customs in determining the dispute by the KORUS FTA Agreement and the US Customs Act. In cases where the State does not violate international law but results in harmful consequences, the responsibility of one country is borne by the treaty. Foreign investment always comes with many challenges and risks. Therefore, the ISD system is a fair and universal arbitration system, which is considered to be a necessary system even for protecting the Korean companies investing abroad. In the investment treaty, compensation for the nationalization of foreign property and reimbursement under the laws of the host country were dissatisfied with foreign investors. In particular, some Koreans have pointed out that there are some problems in the KORUS FTA dispute resolution regulations and there is a need for further discussion and research. Based on the experiences and wisdoms gained in the course of Korea-US FTA negotiations, the dispute arbitration mechanism is urgently needed to reduce the possibility of disputes and to make amicable directions.

Keywords

References

  1. Arghyrious A. Fatoutos, Toward an Investment Agreement on Foreign Direct Investment?, 10 ICSID Rev. Foreign Inv. L. J. 181, 1995. https://doi.org/10.1093/icsidreview/10.2.181
  2. Asif H. Qureshi(1996), "The World Trade Organization: implementing international trade norms", Manchester University Press.
  3. Christophe Bellmann and Richard Gerster(1996), Accountability in the World
  4. David A. Gantz, The Evolution of FTA Investment Provisions: From NAFTA to the United States-Chile Free Trade Agreement, 19 Am.U.Int'l L. Rev. 679, 2004
  5. Dell Products LP v. U.S., 642 F.3d 1055, 1061, C.A.Fed., 2011.
  6. Destler, I. M(2007), "American Trade Politics in 2007 : Building Bipartisande Organization", Journal of World Trade(December).
  7. Emilio Vinuesa, Bilateral Investment Treaties and the Settlement of Investment Disputes Under ICSID: The Latin American Experience, 8-FALL L. & Bus. Rev. Am. 50, 2002.
  8. Ford Motor Company v. United States, 978 F.Supp.2d 1350 (United States Court of International Trade, 2014).
  9. Gray, Kevin R. "Foreign Direct Investment and Environmental Impacts-Is the Debate Over?", RECIEL 11, 2002.
  10. Hitachi Home Electronics (America), Inc. v. U.S., 661 F.3d 1343, 1345 C.A.Fed., 2011.
  11. International Custom Products, Inc. v. U.S., 467 F.3d 1324' 1327 (C.A.Fed., 2006).
  12. Jan Paulsson Nigel Rawding & Reed Lucy, Guide to Icsid Arbitration, Kluwer LawInternational; 2nd Revised edition edition December 15, 2010
  13. J. E. Alvarez, The Public International Law Regime Governing International Investment, Brill, July 1, 2011
  14. Jeffrey Turk, Compensation for "Measures Tantamount to Expropriation" under NAFTA: What It Means and Why It Matters, Int'l L. & Mgmt. Rev. 41, 2005.
  15. Kaj Hober, Investment Arbitration in Eastern Europe: Recent Cases on Expropriation, 14 Am. Rev. Int'l Arb. 377, 2003.
  16. Kelly M. Mann, United Mexican States v. Metalclad Corporation: The North American Free Trade Agreement Provides Powerful Private Right of Action to Foreign Investors, 35 Urb. Law. 697, 2003.
  17. Lemans Corp. v. U.S., 660 F.3d 1311, 1315, C.A.Fed., 2011.
  18. Miles, Kate, "International Investment Law and Climate Change: Issues in the Transition to a Low Carbon World", SIEL Working Paper, 2008.
  19. Rainer Hofmann (Goethe-Universitat Frankfurt am Main - Law) & Christian J.Tams(Univ. of Glasgow - Law), International Investment Law and General International Law,Nomos 2011
  20. Rudolf Dolzer, Fair and Equitable Treatment: A Key Standard in Investmen Treaties, 39 Int'l Law. 87, 2005.
  21. Rudolf Dolzer, Indirect Expropriation: New Developments?, 11 N.Y.U. Envtl. L.J. 64, 2002.
  22. Schill, Stephan W. "Do Investment Treaties Chill Unilateral State Regulation to Mitigate Climate Change?", Journal of International Arbitration 24(5). 2007.
  23. Scott R. Jablonski, Foreign Investment Disputes Resolution Does Have a Place in Trade Agreements in the Americas: A Comparative Look at Chapter 10 of the United States Chile Free Trade Agreement, 35 U. Miami Inter-Am. L. Rev. 627, 2003.
  24. Spak, G. J. Hansen, F. R. and Hickman D. J., "2011 INTERNATIONAL TRADE LAW DECISIONS OF THE FEDERAL CIRCUIT", American University Law Review, 2012.
  25. Surya P. Subedi, The Challenge of Reconciling the Competing Principles within the Law of Foreign Investment with Special Reference to the Recent Trend in the Interpretation of the Term "Expropriation", 40 Int'l Law. 121, 2006.
  26. United States International Trade Commission, Official Harmonized Tariff Schedule, 2015.
  27. Vivienne Bath & Luke Nottage, Foreign Investment and Dispute Resolution Law and Practice in Asia, Routledge, November 16, 2011
  28. Yusuf Aksar, Implementing International Economic Law, Brill, September 1, 2011

Cited by

  1. 국제중재의 산업별 유의성 연구 vol.27, pp.4, 2017, https://doi.org/10.16998/jas.2017.27.4.115