• 한국중재학회지:중재연구
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• 제22권3호
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• pp.187-213
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• 2012

The purpose of this article is to examine Fair and Equitable Treatment in International Investment Agreements. Most BITs and other investment treaties provide for FET of foreign investments. Today, this concept is the most frequently invoked standard in investment disputes. It is also the standard with the highest practical relevance: a majority of successful claims pursued in international arbitration are based on a violation of the FET standard. The concept of FET is not new but has appeared in international documents for some time. Some of these documents were nonbinding others entered into force as multilateral or bilateral treaties. Considerable debate has surrounded the question of whether the FET standard merely reflects the internationalminimum standard, as contained in customary international law, or offers an autonomous standard that is additional to general international law. As a matter of textual interpretation, it seems implausible that a treaty would refer to a well-known concept like the "minimum standard of treatment in customary international law" by using the expression "fair and equitable treatment." Broad definitions or descriptions are not the only way to gauge the meaning of an elusive concept such as FET. Another method is to identify typical factual situations to which this principle has been applied. An examination of the practice of tribunals demonstrates that several principles can be identified that are embraced by the standard of fair and equitable treatment. Some of the cases discussed clearly speak to the central roles of transparency, stability, and the investor's legitimate expectations in the current understanding of the FET standard. Other contexts in which the standard has been applied concern compliance with contractual obligations, procedural propriety and due process, action in good faith, and freedom from coercion and harassment. In short, meeting the investor's central legitimate concern of legal consistency, stability, and predictability remains a major, but not the only, ingredient of an investment-friendly climate in which the host state in turn can reasonably expect to attract foreign investment.

• 한국중재학회지:중재연구
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• 제25권4호
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• pp.51-75
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• 2015

Administrative ADR to solve new problems has the characteristics of a new project, hence ADR is established and operated with a lack of human and material resources in the process of introducing administrative ADR. Therefore, it is preferred to resolve conflicts by less costly counseling and mutual agreement before mediation. When we try to settle the disputes through administrative ADR at the stage before mediation, it causes problems for the neutrality and impartiality of the dispute settlement procedures. In this case administrative ADR systems should introduce devices that ensure the impartiality of the process. In some issues becoming social problems, relevant administrative agencies are inclined to establish ADR systems. If ADR systems become available, a person who may use ADR services may have some trouble grasping ADR institutions because he/she can hardly distinguish their business affairs. By subdividing administrative affairs, when the disputes have the issues that touch on various fields of the affairs, parties in the disputes have to take ADR procedures one by one in all ADR-related institutions. This may lead to too heavy a burden on the disputing parties, furthermore forcing them to give up the remedies of their rights. For more efficient ADR operations, it is necessary that the institutions which set up and operate ADR systems should actively exchange and cooperate with one another. They need to forge and strengthen the solidarity between administrations and courts. The administrative agencies which run ADR themselves have to build up the devices for preparing human resources and material facilities for administrative ADR.

• 무역학회지
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• 제47권5호
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• pp.273-288
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• 2022

This study first classifies and organizes provisions on institutional arrangements (or IAs) and dispute settlement mechanism(or DSM) in a digital trade agreement. Then it conducts a case study on seven major digital trade agreements: the CPTPP, the USJDTA, the USMCA, the ASDEA, the RCEP, the KSDPA, and the DEPA. And it finally derives implications for Korea to improve implementation of DTAs by communicating better and resolving disputes efficiently with the help of IAs and DSM-related provisions. IAs of a digital trade agreement can be defined as a set of agreements on the division of the respective responsibilities of agencies involved in implementing and enforcing the agreement, including committees, working groups, or contact points. DSM of a digital trade agreement includes consultation, mediation, arbitration, and establishment of a panel. Comparing six FTAs with an e-commerce chapter, the CPTPP, the USMCA, and the RCEP contain the most advanced type of IA provisions while the CPTPP, the USMCA, the RCEP, and the KSDPA have that of DSM provisions. Korea is its initial stage as it has only signed the KSDPA with Singapore as well as it is about to launch a new digital trade negotiation for the DEPA, the CPTPP, and even the IPEF, it is necessary to engage in negotiations with a clearer position on behalf of Korean digital companies. As provisions on IAs and DSM are important policy tools that can reflect industry concerns and convey proposals in inter-governmental dialogue, a Korean draft of the IAs and DSM-related provision should be prepared in advance.

• 한국중재학회지:중재연구
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• 제32권4호
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• pp.53-85
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• 2022

Small and medium-sized enterprises ("SMEs") are vulnerable to trade secret misappropriation. Korea's legislation for the protection of SMEs' trade secrets and provision of civil, criminal, and administrative remedies includes the SME Technology Protection Act, the Unfair Competition Prevention Act, the Industrial Technology Protection Act, the Mutually Beneficial Cooperation Act, and the Subcontracting Act. Among these acts, the revised SME Technology Protection Act of 2018 introduced the "administrative technology misappropriation investigation system" to facilitate a rapid resolution of SMEs' technology misappropriation disputes. On September 27, 2021, Korea's Ministry of SMEs announced that it had reached an agreement to resolve the dispute between Hyundai Heavy Industries and Samyeong Machinery through the administrative technology misappropriation investigation system. However, not until 3 years and a few months passed since the introduction of the system could it be used to resolve an SME's technology misappropriation dispute with a large corporation. So there arose a question on the usefulness of the system. Therefore, we conducted a comparative legal analysis of Korea's laws enacted to protect trade secrets of SMEs and to address technology misappropriation, focusing on their legislative purpose, protected subject matter, types of misappropriation, and legal remedies. Then we analyzed the administrative technology misappropriation investigation system and the cases where this system was applied. We developed a proposal to enhance the usefulness of the system. The expert interviews of 4 attorneys who are experienced in the management of the system to check the practical value of the proposal. Our analysis shows that the lack of compulsory investigation and criminal sanctions is the fundamental limitation of the system. We propose revising the SME Technology Protection Act to provide correction orders, criminal sanctions, and compulsory investigation. We also propose training professional workforces to conduct digital forensics, enabling terminated SMEs to utilize the system, and assuring independence and fairness of the mediation and arbitration of the technology misappropriation disputes.

• 한국중재학회지:중재연구
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• 제17권1호
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• pp.183-215
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• 2007

The purpose of this paper is to study of WTO regulations related FTA such as Understanding on the Interpretation of Article XXIV of the General Agreement on Tariffs and Trade(GATT) 1994 and General Agreement on Trade in Service(GATS). In this study, the First introduced FTA rules of WTO in the chapter 2. The WTO agreement includes the "General Agreement on Tariffs an Trade(GATT) 1994". This instrument, known as "GATT 1994", is based on upon the original General Agreement on Tariffs and Trade referred to as "GATT 1947". The Second analyzed the relations between FTA and Article XXIV of GATT 1994 in the chapter 3. The Article XXIV of GATT 1994 is an agreement between the distinctive members for liberalizing trade. The Article XXIV of GATT 1994 is consist of three parts such as customs unions, free-trade area, and interim agreements that WTO is referred to as "Regional Trade Agreement(RTA)". There is a difference between the customs unions and the free-trade area. In the customs unions rules, the members should have the same tarifficatio and the same trade provision against non-members, but in the free-trade are a rules, the member is not necessary to have the same tarifficatio and the same trade provision against non-members. But, the both rules have a liberalization of trade in a common as a revoking tariffs and the government regulations for interfering with trade. In this case, however, the both rules include an inconsistency ele ment under WTO rules such as Most-Favoured-Nation Treatment(MFN) and National Treatment on Internal Taxation and Regulation(NTITR). This study reviewed neither inconsistency nor consistency on the both rules with the RTA of WTO under Article XXIV of GATT 1994. The Third analyzed the relations between FTA and Article V of GATS under WTO in the chapter 4. The GATS is a rule of WTO for the growing importance of trade in services for the growth and development of the world conomy. The GATS is a new rule rather than GATT's rule for concerning goods trade. The Article V of GATS under WTO is a rule that makes based on upon the Article XXIV of GATT. Therefore, If it is to be examined the Article V of GATS, it should be referred to a and an interpretation of the text of the Article XXIV of GATT. However, the Article V of GATS is on the undeveloped stage compare to the Article XXIV of GATT. Because, the statistics of WTO showed that the RTAs under the Article XXIV of GATT have 150 cases completed between nations, but the RTAs under the Article IV of GATS have 10 cases completed between nations. The Forth examined the interpretation of FTA rules under WTO in the chapter 5. Concerning the consistency issue of customs unions and free-trade area under the Article XXIV of GATT, the working parties in customs unions and in free-trade area have been reviewed the consistency is sue which had been not if to GATT. However, the parties finished to get up with one accord the both that are a consistency of argument and an inconsistency of argument with the interpretation of the Article XXIV of GATT. The interpretation of the Article XXIV of GATT has been raised as the issues when EEC by Rome Treaty established in 1957. However, the consistency is sue only agreed 6 working parties out of 69 working parties finished the reviewing of the interpretation up to the end of 1994. Also the consistency issue concerned with the special privilege measure of the customs unions and tree-trade area under the Article XXIV of GATT discussed only 3 cases between working parties up to now and did not accepted as an issue for working parties' report. In conclusion in the chapter 6, this study raised the issues of WTO that are a conference of a new round under WTO and the issues of clarity between FTA rule and WTO regulation.

• 한국건축시공학회지
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• 제9권5호
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• pp.103-110
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• 2009

건설사업계약은 매우 다양한 계약으로 구성되어 있다. 그리고 이는 일의 완성을 필요로 하는 도급계약의 일종이다. 따라서 당사자들은 계약의 이행과정중에 항상 많은 분쟁에 봉착하게 된다. 실제로 발주자의 지시에 의한 설계변경으로 인해 많은 분쟁이 발생하고 있다. 이러한 분쟁을 해결하기 위해서는 계약의 해석이 수반되어야 하지만, 우리나라에서는 종국적으로 분쟁을 해결하게 하는 분쟁해결절차가 중재와 소송에 국한되어 있으므로 계약당사자들이 비효율성으로 인해 이를 꺼리게 되는 실정이다. 따라서 우리나라에서는 계약의 해석을 찾아보기는 쉽지 않은 반면, 미국의 경우 발주자별로 분쟁해결절차를 둠으로써 다양한 계약의 해석유형을 찾아볼 수 있다. 따라서 본 연구에서는 과업의 범위를 초과하는 변경, 수량의 변경, 이행기간의 변경, 이행방법과 태도의 변경, 정부제공물품이나 인도장소의 변경, 시공자의 변경절차 수용, 감액조정에 대한 사항에 대한 해석동향을 분석하여 제시하였다.

• 한국중재학회지:중재연구
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• 제12권2호
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• pp.153-184
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• 2003

‘Schiedsgutachten’ is more of a law phenomenon that appears frequently in privity of contract rather than a concept that is .generally established in the positive law. There is no definition of this in the positive law which makes it difficult to put a finger on the concept but when the concerned party of the conflict puts the establishment of a fact that is a premise to the legal relationship or the right about the legal right's content or the supplementation of the legal relationship to a third party and makes an agreement to follow the third party's judgement, the process is called the contract of schiedsgutachten. At this point, the judgement of the third party is called the schiedsgutachten. This thesis strives to search for an activation of the schiedsgutachten system in Korea by analyzing and researching the systems in various European countries including Germany where the above mentioned schiedsgutachten system is relatively well-developed. First of all, the three types of schiedsgutachten in the German law will be looked into. Based on this, the theories and judicial precedents of Swiss law, French law, Italian law, and British law will be looked into as well. By doing this, similarities and distinction standards between the various countries' legal systems will be further analyzed. Along with this, the legal qualities and the binding power of the schiedsgutachten will be searched out. In Korea, the term schiedsgutachten itself is not customary as the system itself is not actively being carried out. However, in car damage compensation lawsuits which occupy a big percentage, if the schiedsgutachten system were to be used, the problem would be easily solved without progressing to lawsuits. Korea should actively seek out this system with the various models of different countries including Germany which has been introduced in this thesis as a model.

• 한국중재학회지:중재연구
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• 제17권3호
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• pp.3-30
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• 2007

The New York Convention(formally called "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards") done in New York on June 10, 1958 has been adhered to by more than 140 States at the time of this writing, including almost all important trading nations from the Capitalist and Socialist World as well as many developing countries. The Convention can be considered as the most important Convention in the field of arbitration and as the cornerstone of current international commercial arbitration. Korea has acceded to the New York Convention since 1973. When acceding to the Convention, Korea declared that it will apply the Convention to the recognition and enforcement of awards made only in the territory of another Contracting State on the basis of reciprocity. Also, Korea declared that it will apply the Convention only to differences arising out of legal relationships, whether contractual or not, which are considered as commercial under the national law of Korea. The provisions relating to the enforcement of arbitral awards falling under the New York Convention begin at Article III. The Article III contains the general obligation for the Contracting States to recognize Convention awards as binding and to enforce them in accordance with their rules of procedure. The Convention requires a minimum of conditions to be fulfilled by the party seeking enforcement. According to Article IV(1), that party has only to supply (1) the duly authenticated original award or a duly certified copy thereof, and (2) the original arbitration agreement or a duly certified copy thereof. In fulfilling these conditions, the party seeking enforcement produces prima facie evidence entitling it to obtain enforcement of the award. It is then up to the other party to prove that enforcement should not be granted on the basis of the grounds for refusal of enforcement enumerated in the subsequent Article V(1). Grounds for refusal of enforcement are stipulated in Article V is divided into two parts. Firstly, listed in the first Para. of Article V are the grounds for refusal of enforcement which are to be asserted and proven by the respondent. Secondly, listed in Para. 2 of Article V, are the grounds on which a court may refuse enforcement on its own motion. These grounds are non-arbitrability of the subject matter and violation of the public policy of the enforcement country. The three main features of the grounds for refusal of enforcement of an award under Article V, which are almost unanimously affirmed by the courts, are the following. Firstly, The grounds for refusal of enforcement mentioned in Article V are exhaustive. No other grounds can be invoked. Secondly, and this feature follows from the first one, the court before which enforcement of the award is sought may not review the merits of the award because a mistake in fact or law by the arbitrators is not included in the list of grounds for refusal of enforcement set forth in Article V. Thirdly, the party against whom enforcement is sought has the burden of proving the existence of one or more of the grounds for refusal of enforcement. The grounds for refusal of enforcement by a court on its own motion, listed in the second Para. of Article V, are non-arbitrability of the subject matter and public policy of the enforcement country. From the court decisions reported so far at home and abroad, it appears that courts accept a violation of public policy in extreme cases only, and frequently justify their decision by distinguishing between domestic and international public policy. The Dec. 31, 1999 amendment to the Arbitration Act of Korea admits the basis for enforcement of foreign arbitral awards rendered under the New York Convention. In Korea, a holder of a foreign arbitral award is obliged to request from the court a judgment ordering enforcement of the award.

• 무역상무연구
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• 제54권
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• pp.145-166
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• 2012

This article examines the limitations of the choice of law caused by Internationally Mandatory Rules in Entering into the Turn-Key Contracts. In June 2007, Clough Engineering, a corporation based in Western Australia, approached the Federal Court of Australia seeking injunctive relief and leave to commence proceedings against an entity located outside Australia, the Oil & Natural Gas Corp of India (ONGC). Clough had contracted with ONGC to provide a range of services in relation to the construction of gas and oil wells off the coast of India. The contract was governed by Indian law, and included a clause by which the parties agreed to submit their disputes to arbitration. Yet the Federal Court assumed jurisdiction over the dispute, principally because Clough had framed its claim as a plea for relief for contraventions of Australia's Trade Practices Act 1974. The result of this cases that it is possible for an arbitral tribunal to hear a claim made under the Trade Practices Act even if that claim arises "in connection with"a contract the proper law of which is not the law of Australia. However, in Transfield Philippines Inc v Pacific Hydro Ltd, the turnkey contract included a choice of law provision, selecting the law of the Philippines, and a clause providing that all disputes arising out of or in connection with the agreement were to be arbitrated under the ICC Rules, with the seat in Singapore. Hearings were in fact conducted in Melbourne, Australia, although all awards were published in Singapore. The result of this cases that it would not be appropriate for an Australian court to adjudicate claims for misrepresentation under Australian statutes dealing with misleading and deceptive conduct, once the arbitral tribunal had determined, applying appropriate choice of law rules, that such claims are governed by the law of the Philippines. To do so would lead to a multiplicity of proceedings, usurp the jurisdiction of the tribunal and deny the intention of the parties as expressed by them in the arbitration agreement. In short, the Internationally Mandatory Rules as an active part of public order create limitation of party autonomy in choice of law rules in a different way. The court is fully entitled to refuse to use those rules of law applicable on the contract which are in the contradiction to the internationally mandatory rules of law of the forum. And the court may give an effect to those Internationally Mandatory Rules that form a part of a law of foreign country when deciding about applicability of certain rules of applicable law.

• 의료법학
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• 제15권2호
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• pp.91-122
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• 2014

For a variety of reasons, the number of medical disputes is continuously rising. Due to the intrinsic qualities of medical treatments, one would find it more apt to subject medical disputes to general conflict resolution procedures rather than to once-for-all decisions under legal suits. To address the increasing medical disputes with greater professionalism and efficiency, the Medical Disputes Mediation Act was enacted and a medical dispute mediation system put in place, while drawbacks have been blamed to both. The current mediation procedures require the respondent's agreement as a disclosure requirement. A reasonable improvement to this would be to amend the regulation of agreement supposition, or to enforce procedural participation only to public health facilities managed by the national or regional government. Furthermore, small claims cases of 20 million KRW or less in claim may be considered for conciliation-prepositive principle. The concentration on small claim medical disputes is a phenomenon that can be addressed by carrying out maximum authentication commissions or similar measures, one of the solutions by enhancing the public trust in the Korea Medical Dispute Mediation and Arbitration Agency. The proper management of medical authentication teams is one way to address the existing problems in the authentication system. For this, the number of team members shall be increased under more flexible authentication procedures. All indemnity resources for medical accidents of force majeure must be borne by the Government, for it is the body principally responsible for social compensation. Placing this cost on the establisher of the subject medical facility holds the possibility of violating fundamental rights. While the costs for subrogation payment system for damages may be borne by the healthcare facility establisher, a deposit-based system must be created for cases in which the facility shuts down, without holding the responsibility for accident cause. Such change to a deposit-based system will evade the controversies of unconstitutionality, etc.