• 무역상무연구
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• 제38권
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• pp.181-226
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• 2008

The purpose of this paper is to describe the settling procedures of the investor-state disputes in the FTA Investment Chapter, and to research on the international arbitration system for the settlement of the investor-state disputes under the ICSID Convention and UNCITRAL Arbitration Rules. The UNCTAD reports that the cumulative number of arbitration cases for the investor-state dispute settlement is 290 cases by March 2008. 182 cases of them have been brought before the ICSID, and 80 cases of them have been submitted under the UNCITRAL Arbitration Rules. The ICSID reports that the cumulative 263 cases of investor-state dispute settlement have been brought before the ICSID by March 2008. 136 cases of them have been concluded, but 127 cases of them have been pending up to now. The Chapter 11 Section B of the Korea-U.S. FTA provides for the Investor_State Dispute Settlement. Under the provisions of Section B, the claimant may submit to arbitration a claim that the respondent has breached and obligation under Section A, an investment authorization or an investment agreement and that the claimant has incurred loss or damage by reason of that breach. Provided that six months have elapsed since the events giving rise to the claim, a claimant may submit a claim referred to under the ICSID Convention and the ICSID Rules of Procedure for Arbitration Proceedings; under the ICSID Additional Facility Rules; or under the UNCITRAL Arbitration Rules. The ICSID Convention provides for the jurisdiction of the ICSID(Chapter 2), arbitration(Chapter 3), and replacement and disqualification of arbitrators(Chapter 5) as follows. The jurisdiction of the ICSID shall extend to any legal dispute arising directly out of an investment, between a Contracting State and a national of another Contracting State, which the parties to the dispute consent in writing to submit to the ICSID. Any Contracting State or any national of a Contracting State wishing to institute arbitration proceedings shall address a request to that effect in writing to the Secretary General who shall send a copy of the request to the other party. The tribunal shall consist of a sole arbitrator or any uneven number of arbitrators appointed as the parties shall agree. The tribunal shall be the judge of its own competence. The tribunal shall decide a dispute in accordance with such rules of law as may be agreed by the parties. Any arbitration proceeding shall be conducted in accordance with the provisions of the Convention Section 3 and in accordance with the Arbitration Rules in effect on the date on which the parties consented to arbitration. The award of the tribunal shall be in writing and shall be signed by members of the tribunal who voted for it. The award shall deal with every question submitted to the tribunal, and shall state the reason upon which it is based. Either party may request annulment of the award by an application in writing addressed to the Secretary General on one or more of the grounds under Article 52 of the ICSID Convention. The award shall be binding on the parties and shall not be subject to any appeal or to any other remedy except those provided for in this Convention. Each Contracting State shall recognize an award rendered pursuant to this convention as binding and enforce the pecuniary obligations imposed by that award within its territories as if it were a final judgment of a court in that State. In conclusion, there may be some issues on the international arbitration for the settlement of the investor-state disputes: for example, abuse of litigation, lack of an appeals process, and problem of transparency. Therefore, there have been active discussions to address such issues by the ICSID and UNCITRAL up to now.

• 무역상무연구
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• 제58권
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• pp.313-328
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• 2013

Today FTA extends over the world and Korea as a main member of international trade is no exception. In the past Korea, as the developing countries, has made endlessly effort to induce foreign investment from foreign enterprise and/or government to be a truly OECD countries today and made it. Korea's trade economy was reached 1 trillion dollars in 2012. Now we have to find a new way to produce, process, procure goods from foreign investment and also need to protect our profit and/or rights within foreign judicial territory. There are two method to protect foreign enterprise or government. First they rely on general principles in WTO or Bilateral Investment Treaty that the principle of equality, national treatment, and most-favored-nation treatment, you can create a predictable environment to protect foreign enterprise and/or government. Second they need to incorporate contractual clauses in their agreement such as stabilization clause, force majeure, arbitration, governing law or sovereign immunity. Of course there are many things left behind to consider I hope it will be helpful to those who prepare foreign investment contract.

• 무역상무연구
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• 제60권
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• pp.79-106
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• 2013

The world is significant increasing investment volume into developing countries from foreign investors. Foreign financial capital is searching in interesting place among the emerging market. However foreign investors put still their experience in the economical and social crisis with political risks in the host countries. MIGA entered into the political risks insurance market which has one of the basic matter of sponsored the private investment guarantee programs. They put guarantee or covering risks of currency inconvertibility, expropriation, breach of contract and political violence. In the case contracts of guarantee concluded between investor and MIGA which are disputes in relation to such MIGA service contract, it should be settled by negotiation, conciliation and arbitration under the convention establishing the Multilateral Investment Guarantee Agency(MIGA). All disputes within the scope to states and investor of MIGA members shall be settled in accordance with the procedure set out in the convention. Recently, MIGA is opening the office in Seoul to strengthen joint efforts between MIGA and Korea. It will be a good chance to consider sustainable improvement and dispute solutions for emerging countries in foreign investment to the korean investors.

• 한국중재학회지:중재연구
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• 제24권1호
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• pp.45-58
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• 2014

It is a well recognised rule in international law that the property of aliens cannot be taken. The question of whether indirect expropriation and government regulatory measures require compensation is an important issue in international investment law. Bilateral investment treaties and other investment agreements contain brief and general indirect expropriation provisions. These focus on the effect of government action and do not address the distinction between compensable and non-compensable regulatory actions. It is generally accepted that a state is not responsible for loss of property or for other economic disadvantages resulting from bona fide general taxation accepted as within the police power of states, provided it is not discriminatory. Yukos Oil Company is a Russian oil and gas company engaged in exploration, refining, and marketing activities. It is one of the largest oil and gas companies in the world. Yukos Oil Company has its production operations in Russia and markets its products in Europe. An international tribunal ordered the Russian government to compensate a group of Spanish investors for the losses they suffered when Russia seized the Yukos Oil Company on July 26, 2012. This has been the subject of several judicial proceedings and academic publications. This paper explores which circumstances do not lead to taxation amounting to expropriation. The author suggests that under the following circumstances, taxation would not amount to expropriation. First, taxation should be non-discriminatory. Also a lawful exercise of the taxation powers of governments would not amount to expropriation.

• 한국중재학회지:중재연구
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• 제25권3호
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• pp.185-226
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• 2015

As in some developing countries and more recently some developed countries worldwide and in the Asian region, Australia has faced significant internal opposition and public debate especially over treaty-based investor-state dispute settlement (ISDS). As outlined in Part II(1), concerns have re-emerged and escalated since the first-ever claim was brought against Australia regarding its tobacco plain packaging legislation, in 2011 by Philip Morris Asia under an old BIT with Hong Kong. However, Australia signed bilateral FTAs with Korea in 2014 and with China in 2015, including ISDS protections, prompting several sets of parliamentary inquiries (Part II(2)). Australia's close trading partner, New Zealand, had already concluded an FTA with China in 2008 that included more expansive ISDS-backed investor protections. In 2015, the New Zealand Parliament has been debating ratification of its own FTA with Korea, with ISDS also now attracting growing scrutiny, as elaborated in Part III below. In both bilateral FTA negotiations, the present Korean government seems to have reverted to a strong preference for concluding investment agreements with extensive ISDS protections, despite public and parliamentary debate around 2011 in the context of ratifying its FTA with the United States. As mentioned briefly in the concluding Part IV, Korea's stance has significant implications for the future trajectory of treaty-based ISDS - and indeed international arbitration more generally - in the Asia-Pacific region, and perhaps even globally.

• 한국중재학회지:중재연구
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• 제23권2호
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• pp.55-79
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• 2013

As arbitration becomes an increasingly popular mode of resolving disputes, neighboring industries begin to take notice. This interest is reflected in the increasing utilization of third party funding in international arbitration claims. In this regard, the third party funding industry appears particularly interested in investor-state arbitration claims because they typically involve considerable claim amounts and substantial legal fees. To examine this trend more closely, this paper, firstly, examines the investor-state arbitration more precisely in Chapter II. In Chapter III, this study continues to examine some legal issues which can arise as a result of a conflict of interest between the parties to the funding agreement including, inter alia, 1) a dispute in which the funder terminates the agreement during the arbitration proceedings, 2) a dispute in relation to a funder's intervention in arbitration proceedings, and 3) a dispute on the responsibility for adverse costs orders, if any. This paper further identifies major legal issues which can arise in relation to 1) disclosure of existence of the funding agreement, 2) attorney-client privilege. Lastly, in Chapter IV, this paper provides some lessons from an in-depth case study on third party funding agreements and solutions to avoid and to solve prospective disputes in the future.

• 한국중재학회지:중재연구
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• 제14권2호
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• pp.135-172
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• 2004

While doing business in China foreign companies occasionally find themselves embroiled in disputes with Chinese individuals, companies or the Chinese Government. There are three primary ways to resolve a commercial dispute in China are negotiation, arbitration and litigation. The best way of dispute resolution is negotiation as it is the least expensive method and the working relationship of both parties concerned in dispute. But negotiations do not always give rise to resolution. Arbitration is the next choice. Unless the parties concerned can agree to resort to arbitration after the dispute has arisen, the underlying contract namely, sales contract or separate agreement must show that disputes will be resolved by arbitration. Agreements to arbitration specify arbitration body and governing law. There are two Chinese government -sponsored arbitration bodies for handling cases involving at least one foreign party: China International Economic and Trade Arbitration Commission(CIETAC) and China Maritime Arbitration Commission(CMAC) for maritime disputes. Contracts regarding foreign companies doing business in China often designate CIETAC arbitration. CIETAC distinguishes between two kinds of dispute resolutions, foreign-related arbitration and domestic arbitration. For a dispute to be classified as foreign-related arbitration, one of the companies must be a foreign entity without a major production facility or investment in China. CIETAC has published rules which govern the selection of a panel if the contract does not specify how the choice of arbitration will be handled. CIETAC's list of arbitrators for foreign-related disputes, from which CIETAC's arbitrators must en chosen, includes may non-Chines arbitrators. But many foreign experts believe that some aspects of CIETAC needs to be improved. The purpose of this paper is to improve the understanding of arbitration in China, CIETAC by way of studying the current situation and improvement of international commercial arbitration in China.

• 한국중재학회지:중재연구
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• 제29권1호
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• pp.31-52
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• 2019

As international transactions have grown more numerous, situations of disputes related to the transactions are getting more complicated and more diverse. Cost-effective remedies to settle the disputes through traditional methods such as adjudications of a court will be insufficient. There fore, nations are attempting to more efficiently solve investor-state disputes through arbitration under organizations such as the ICSID Convention, the ICSID Additionary Facility Rules, and the UNCITRAL Arbitration Rules by including the provisions on investor-state dispute settlement at the conclusion of an investment agreement. In case of an arbitration under the ICSID Convention, ICSID directly exercises the supervisorial function on arbitral proceedings, and there is no room for the intervention of national courts. In time of the arbitration where the ICSID Convention does not apply, however, the courts have to facilitate the arbitral proceedings. When the recognition and enforcement of an arbitral award under the ICSID Convention are guaranteed by the Convention, it should be considered that the New York Convention does not apply to them under the Convention Article 7 (1) fore-end. In exceptional cases in which an arbitral award under the ICSID Convention cannot be recognized or enforced by the Convention, the New York Convention applies to the recognition and enforcement because the award is not a domestic award of the country in which the recognition or enforcement is sought. It is up to an interpretation of the New York Convention whether the New York Convention applies to ISDS arbitral awards not based on the ICSID Convention or not. Although an act of the host country is about sovereign activities, a host country and the country an investor is in concurring to the investment agreement with the ISDS provisions is considered a surrender of sovereignty immunity, and it will not suffice to exclude the investment disputes from the scope of application of the New York Convention. If the party to the investment agreement has declared commercial reservation at its accession into the New York Convention, it should be viewed that the Convention applies to the recognition and enforcement of the ISDS awards to settle the disputes over an investitive act, inasmuch as the act will be considered as a commercial transaction. When the recognition and enforcement of an arbitral award on investment disputes about a nation's sovereign act have been sought in Korea and Korea has been designated the place of the investment agreement arbitration as a third country, it should be reviewed whether the disputes receive arbitrability under the Korean Arbitration Act or not.

• 경영과정보연구
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• 제9권
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• pp.165-177
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• 2002

The purpose of this comparative study is to compare and evaluate international arbitration and forum selection agreements. Recent decades have seen an unparalleled expansion of global trade and investment. Business enterprises of every description ann find themselves entangled in legal proceedings with foreign companies or government entities. Thus, the costs of these proceedings and the consequences of losing are often substantial. Almost, every international commercial controversy poses a critical preliminary question - 'where, and by whom, will this dispute be decided?' the answer to this question often decisively affects a dispute's eventual outcome. It can mean the difference between winning and losing. between de minimis damages and a multimillion dollar award. The same dispute can have materially different outcomes in different forums. Because of the importance of forum selection, parties to international contracts often include contractual dispute resolution provisions in their agreements. These provisions significantly reduce the uncertainties inherent in international commercial disputes, and can offer a substantial measure of partisan advantage. as a consequence, it is almost always advisable to include a contractual dispute resolution provision in any international contract. These provisions typically take the form of : (1) forum selection clauses, or (2) arbitration agreements.

• 한국중재학회지:중재연구
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• 제26권3호
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• pp.67-91
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• 2016

In an era where the international investment and trade between Korea and China grow daily, the importance of international arbitration cannot be overstated. The Korean Arbitration Law was enacted with reference to the UNCITRAL Model Law. When the Chinese Arbitration Law was being enacted, the UNCITRAL Model Law was also referred to, but there are some discrepancies between the two. This article conducts comparative analysis based on the Korean and the Chinese Arbitration Laws, the Chinese Civil Procedure Law and the KCAB and the CIETAC arbitration rules. In order to adopt the UNCITRAL Model Law amended in 2006, Korea revised its Arbitration Law in 2016. The revised Law includes a more comprehensive legal regime regarding interim measures, emergency arbitrator, etc. In China, the enforcement of foreign-related arbitral awards and foreign arbitral awards is carried out mainly by intermediate people's courts. In China, the report system to the higher people's court for refusing the enforcement of foreign-related arbitral awards and for refusing the recognition or enforcement of foreign arbitral awards has the effect of safeguarding foreign-related arbitral awards and foreign arbitral awards in China. Both Korea and China joined the New York Convention, and domestic courts may refuse the recognition and enforcement of foreign arbitral awards according to the New York Convention.