• Journal of Arbitration Studies
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• v.25 no.1
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• pp.65-86
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• 2015

Under current international investment law clear criteria to determine standards of indirect expropriation are absent. Arbitral tribunals determine on a case-by-case whether an indirect expropriation has occurred by conducting a fact-based inquiry. However, three common determination standards can be inferred by analyzing prior arbitration cases. The appropriate analytical framework that can be applied to determine whether a state's measure constitutes an indirect expropriation is as follows. i) the degree of economic invasion of the state's action into the foreign investor's property rights and durability of the period, ii) interference with the foreign investor's distinct and reasonable investment-backed expectations, and iii) the nature, purpose and character of the state's measure. Therefore, it is necessary to fully acknowledge and to utilize strategically this determination standard. However, derived standards cannot be applied to all disputes en masse. So, it is desirable to exclude ambiguity and to clearly define the determination standard of indirect expropriation in investment agreements, since arbitral tribunals can apply different determination standards on a case-by-case basis. And, based on the discussions until now, more developed standards and direction in response to demand should be established through consistent analysis and review of precedents related to indirect expropriation. Lastly, This study is expected to be a useful guideline to prepare a necessary countermeasure to prevent dispute related to indirect expropriation beforehand or in case of dispute occurrence.

• Journal of the Economic Geographical Society of Korea
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• v.6 no.1
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• pp.211-231
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• 2003

In this study, first, current state and future prospects of indirect real estate investment systems after foreign exchange crisis are analyzed, and second, policy alternatives for activating indirect real estate investment markets are examined. After foreign exchange crisis, various indirect real estate investment systems, such as REITs, ABS and CRC, were introduced. Present market size of indirect real estate investment is not larger than expected. The reasons are the problems of incomplete system on the one hand, and real estate market conditions on the other hand. But long term prospects of indirect real estate investment markets may not be pessimistic. Considering the positive effects of indirect real estate investment systems to the real estate and financial markets, policy supports for activating indirect real estate investment market may be needed. The representative alternatives are reconciliation and integration of indirect real estate investment systems, upgrading the infrastructure of real estate industry, and activating the networks between indirect real estate investment markets and related markets such as financial makets, capital markets, restructuring markets.

• Journal of Arbitration Studies
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• v.24 no.1
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• pp.25-44
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• 2014

Conflict between transnational environmental issues and foreign investment in capital-importing states can be commonly found. Actually, several investor-state dispute arbitration cases like Bilcon v. Canada, S.D. Myers v. Canada, and Metalclad v. Mexico concerned environmental matters. States are worried about their measures for securing the environment might be deemed to go against international investment agreements and foreign investors also are anxious because of excessive regulations. Against this backdrop, stakeholders attempt to strike a balance between securing foreign investment and preserving the environment. This article argues that the investment chapter of the Korea-US FTA tries to solve environment-investment collision in investor-state disputes. Before analyzing the provisions of the investment chapter most relevant to environmental issues, this article points out the most typical types of environmental clauses included in international investment agreements. The investment chapter of the Korea-US FTA has provisions which effectively prevent measures from becoming useless when those measures are legitimate measures relevant to environmental matters. This does not mean that the Korea-US FTA completely solves the conflict between environmental issues and the protection of foreign investment, but still it paves the way for a prudent solution which would hash out this thorny problem.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.47
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• pp.3-24
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• 2010

The contours of the definition of an indirect expropriation are not precisely drawn. In some recent ICSID decision, tribunals have interpreted the concept of indirect expropriation narrowly and have preferred to find a violation of the standard of fair and equitable treatment. Thus, I analyzed the three Requirements of Indirect Expropriation basis of ICSID Cases as below. First, the effect of measure upon the economic benefit value as well as upon the control over the investment will be the key question when it comes to deciding whether an indirect expropriation has taken place. Whenever this effect is substantial and lasts for a significant period of time, it will be assumed prima facie that a taking of the property has occurred. Second, legitimate play a key role in the interpretation of the fair and equitable treatment standard. But they also found entry into the law governing indirect expropriation. Finally, the duration of a government measure affecting the interests of a foreign investor is important for the assessment of whether an expropriation has occurred.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.66
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• pp.149-170
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• 2015

State's compensation obligation accompanied in case of indirect expropriation of foreign investor's investment asset has been established definite principle under international investment law. But the concrete and unified application criterion regarding valuation methods for measuring compensation have not been established yet. The World Bank investment guideline is adopting the Hull's Formula, which is understood as the full compensation standard with prompt adequate effective compensation and Fair Market Value method. It is a general principle that compensation should be equal to the fair market value of investment asset just before indirect expropriation date. However, there is a problem of the valuation method of fair market value of investment asset. In general, discounted cash flow, liquidation value, replacement value, book value, etc. can be the applicable standards. Arbitral tribunals determine compensation by adopting proper valuation method on a case-by-case basis according to the discretion based on the arbitration parties' experts' review on the presented opinion and by considering fact relevance of the issued dispute. This compensation includes also interest, recently it tends to award according to compound interest rather than simple interest. Beginning of the period to generate interest is the next day of the indirect expropriation occurrence date. And it should be considered that interest until the payment of compensation is also included. In addition, it should be considered that mental damages is available only when there's a basis to prove this or special case. Therefore, this study suggests to review of precedents related to indirect expropriation and concretely specify compensation valuation standard and method of indirect expropriation on investment agreements through enough consultation beforehand.

• International Commerce and Information Review
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• v.14 no.3
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• pp.185-207
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• 2012

Vietnam is the easternmost country on the Indochina Peninsula in Southeast Asia. Many Korean companies have recently invested their factories to Vietnam from China. This Study measures the entry determinants and outcomes of Vietnam foreign direct investment of the Korea company. This study developed a research model to determinant factor in the Vietnam market entry and collected 98 survey responses from the Korean company to Vietnam investment. In the article analysis, Multiple regression results show that Vietnam investment outcome review are positively affected by "Scale of Investment company", "International Experience of Investment company", "Marketing Skill of Investment company" and "Vietnam's Market Scale", "Vietnam's Market Environment" factors in all a hypothesis. However, the result of this analysis showed that the "Financial management of investment company", and "Organization management of investment company" as independence is not statistically significant. This article suggests that the investment outcome of Vietnam foreign direct investment should take earned of the Korea company in Vietnam market.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.36
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• pp.87-109
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• 2007

This Comment explores the ICSID case of CMS Gas Transmission Company v. Argentine Republic, awarded on May 12, 2005. The Part II of this Comment first describes the relevant facts of the case including the some background for readers' understanding and the Part III summaries the claimant's requests and the decisions rendered by the Arbitral Tribunal in the Award. At Part IV, the Comment addresses the issue of determinating laws applicable to the merits of dispute in case that the parties of the case have not chosen a governing law, and at Part V, takes a close look into three main issues of (i) the indirect expropriation of the investment, (ii) the breach of fair and equitable treatment and (iii) the protections under umbrella clauses. In this CMS case, we see first that while the Tribunal affirmed that any indirect expropriation can occur from incidental interference depriving the foreign investor of the use or reasonable-to-be-expected economic benefit even if not necessarily to the obvious benefit of the host State, the Tribunal denied the occurrence of indirect expropriation in this case by holding that the Government of Argentina has not breached the standard of protection laid down in the Treaty. Secondly, however, regarding the issue of fair and equitable treatment, we see that the Tribunal, finding Argentina's breach of obligations, affirmed that the foreign investor can expect the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, which can give the foreign investor certain degree of foreseeability. Thirdly and finally, we see that, on base of the effect of the umbrella clause, the Tribunal recognized the obligation of the host State undertaken not to freeze the tariff regime or subject it to price controls and not to alter the basic rules governing contracts between the foreign investor and the host State without the first's written consent. However, the protection under the umbrella clause is available only when there is a specific breach of rights and obligations under BIT or a violation of contract rights protected under BIT.

• The Journal of Asian Finance, Economics and Business
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• v.7 no.10
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• pp.413-421
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• 2020

This study aims to develop a research framework to investigate the factors affecting organizational commitment among employees who are working in Foreign Direct Investment (FDI) enterprises in Vietnam. The authors designed an online survey distributed to employees in FDI enterprises, collecting the data from 312 employees. All scales in this study are adopted from previous studies; tools employed include Cronbach's Alpha, Exploratory Factor Analysis, and Confirmatory Factor Analysis (CFA) to examine the internal consistency, reliability, dimensionality, and validity of each variable. Then, the structural equation modelling (SEM) was utilized in order to estimate path correlations between variables. Results indicate that the leadership style has the strongest effect on organizational commitment, followed by job satisfaction and working performance. Moreover, working performance and job satisfaction are also influenced by leadership style. However, there is no statistical evidence to show that job satisfaction has an impact on working performance. In addition, bootstrapping method is used to show the indirect effect of variables; results reveal that leadership style, though, does not have indirect effect on working performance via job satisfaction, but it indirectly affects organizational commitment throughout working performance. In other words, the study finds that working performance mediates the link between leadership style and organizational commitment.

• International Commerce and Information Review
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• v.9 no.2
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• pp.399-422
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• 2007

Like in other trade negotiations covering comprehensive sectors, it is reported that KOREA-US FTA tried so-called 'package deal' at the last minutes, when telecom services sector was positioned at the forefront and expected to partly play a role in buffering US' market-opening pressure on other sectors. Before everything else, Korean negotiators had to enhance the value of foreign ownership deregulation in telecom services sector as a leverage in the course of KOREA-US FTA negotiations. In addition, since foreign ownership change, if any, is highly sensitive issue either politically or policy-wise, it seems very difficult to find a breakthrough. Focusing on foreign ownership regulation in telecom services sector, this paper seeks how Korea has developed its strategic reasoning for negotiations and evaluates the outcomes of KOREA-US FTA negotiations.

• Korea Real Estate Review
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• v.27 no.1
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• pp.45-57
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• 2017

In this study, the factors influencing logistics warehouse price were analyzed using Hedonic price model. All the actual transaction cases of the logistics centers in Gyeonggi province for 10 years from 2006 to 2015 were investigated. In this hedonic model, statistically significant variables includes building, economic, investment and time characteristics. The analysis permits a better insight of price determinants of warehouse price. First, the purchase price of large size logistics centers is relatively high. Second, the indirect investment shows higher price due to active investment tendency. Third, Foreign investors with various know-how on investment are leading the selling price.