• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.57
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• pp.61-78
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• 2013

The purpose of this study is to clarify the standard of fair and equitable treatment. Although most international investment treaties prescribe fair and equitable treatment that is the obligation to provide fair and equitable treatment to foreign investor, there is no clear definition and specific elements of fair and equitable treatment. Through the arbitral award cases we can find that tribunals have interpreted to include six principles; Due process & Protection from denial of justice, Good faith, Reasonableness & Nondiscrimination, Compliance with contractual obligation, Full protection and security, Transparency & Protection of the investor's legitimate expectations. This study suggest that host countries and investors focus on international trends concerning investment disputes in order to avoid future disputes. So future disputes can be prevented and prepared in advance.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.123-156
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• 2004

Settlement of investment disputes is quite different from that of commercial disputes arising from ordinary commercial transactions in view of disputing parties, applicable laws and rules, etc.. Therefore, it is very important to consider the Convention on the Settlement of Investment Disputes between States and Nationals of Other States(Washington Convention) of 1965. The creation of the International Centre for Settlement of Investment Disputes(ICSID), which was established under the Washington Convention, was the belief that an institution specially designed to facilitate the settlement of investment disputes between governments and foreign investors could help to promote increased flows of international investment. Pursuant to the Washington Convention, ICSID provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. Recourse to ICSID conciliation and arbitration is entirely voluntary. However, once the parties have consented to arbitration under the Washington Convention, neither can unilaterally withdraw its consent. Moreover, all Contracting States of the Washington Convention are required by the Convention to recognize and enforce ICSID arbitral awards. Provisions on ICSID arbitration are commonly found in investment contracts between governments of member countries and investors from other member countries. Advance consents by governments to submit investment disputes to ICSID arbitration can also be found in many bilateral investment treaties including the Korea-China Agreement on the Encouragement and Reciprocal Protection of Investments(1992), the Korea-Japan Agreement for the Liberalization, Promotion and Protection of Investment(2003) and the Korea-Chile FTA, the latter was signed as of February 15, 2003 and is still pending in the National Assembly for its ratification. Arbitration under the auspices of ICSID is similarly one of the main mechanism for the settlement of investment disputes under the bilateral treaties on investment. Therefore, it is a problem of vital importance that Korean parties interested in investment to foreign countries should understand and cope with the settlement mechanism of investment disputes under the Washington Convention and bilateral investment treaties.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.481-507
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• 2009

Along with continuous increase in international investments encouraged by wide spread bilateral investment treaties (BIT) including free trade agreements (FTA), international investment disputes have been also increasing. This means that a host State, an importer of foreign investments, and a investor who exports its investment to foreign State, need to take measures to prevent international disputes arising from international investment or to prepare for the arbitration for resolving the disputes. Under these circumstances, this paper compares ICSID arbitration rules and UNCITRAL arbitration rules in respect of (i) the institution of arbitration, (ii) the appointment of arbitrators and the composition of arbitral tribunal, and (iii) the procedures for, and the form of, arbitral awards. On base of this comparison, this paper further suggests certain practical issues that the host State's government and the foreign investors should be aware of in order to be ready for the resolutions of disputes by ICSID or UNCITRAL arbitrations.

• International Journal of Contents
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• v.8 no.2
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• pp.75-81
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• 2012

This study explores the important causal relationship between the public (domestic) and trade (international) disputes of South Korea and China. To understand the relations between the domestic and international disputes, Putnam's study of the two-level game theory has been conducted in order to analyze the effect of complicated social and political frameworks on international trade disputes. Due to the social and political differences between South Korea and China, this study provides three findings based on negotiation, policy, and strategic approaches.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.44
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• pp.239-255
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• 2009

The purpose of this article is to examine the Utilization of Umbrella Clauses in Investor-State Contract Disputes. To accomplish the purpose, this article analyzes the ICSID case of SGS v. Pakistan and SGS v. Philippines. Umbrella clauses have become a regular feature of international investment agreements and have been included to provide additional protection to investors by covering the contractual obligations in investment agreements between host countries and foreign investors. In particular, two recent ICSID decisions, SGS v. Pakistan and SGS v. Philippines, have brought to the forefront the question of whether the umbrella clause applies to obligations arising under otherwise independent investment contracts between the investor and the host State. In focusing on the SGS decisions, this article will give some useful guidelines to Government and Academia under currently prevailing environment of the Free Trade Agreement("FTA") in Korea.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.59
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• pp.59-78
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• 2013

The interpretation and application of investment treaties takes place mostly by ad hoc tribunals. Their composition varies from case to case. But in interpreting and applying investment treaties are bound to exist on a ground rule and coherent criteria. Given summarizing contents of this study, those are as follows. When interpreting investment treaties, (i) most tribunals is based on Article 31 and 32 of the VCLT, (ii) tribunals rely on previous decisions, (iii) tribunals resort to travaux pr$\acute{e}$paratoires, (iv) tribunals consider the interpretative statement. When applying investment treaties, (i) treaties apply only in relation to acts or events that occurred after their entry into force, (ii) tribunals have applied different inter-temporal rules to jurisdictional clauses and substantive provisions in treaties, (iii) the relevant date for purposes of jurisdiction is the date of the institution of proceedings, (iv) Under the ICSID convention, the host state and investor's nationality must be a party to the convention on the date the proceedings are instituted. This study is expected to possibly become guideline in the interpretation and application standards of investment treaties. So future disputes can be prevented and prepared in advance.

• Journal of Arbitration Studies
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• v.34 no.2
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• pp.27-44
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• 2024

The lack of consistency and predictability of arbitral awards in the Investor-State Dispute Settlement ("ISDS") mechanism has long been a subject of criticism. In international investment disputes, arbitral tribunals have frequently come up with different interpretations and results on similar investment agreement provisions. The arbitral tribunal's inconsistent decisions raised concerns not only among the parties to the investment dispute but also amongthe arbitral tribunals in other cases, which ultimately led to legal inconsistencies in international investment law. Arbitration awards may have some degree of disagreement in interpretation. However, the systemic inconsistencies that pervade ISDS risk undermining the purpose of the investment agreement system, which is to provide a predictable and stable framework to protect andpromote foreign investment while maintaining a balance with host state regulations. Therefore, this study proposes a plan to resolve this discrepancy and review standards for practical application. Reform of the ISDS mechanism could be a viable option to reduce, to some extent, the inconsistencies in interpretation, if not completely eliminate them. Reforms such as establishingguidelines, promoting cooperation between arbitral tribunals, and codifying the norms of the agreement can provide a means of reducing interpretive inconsistencies and strengthening the legitimacy of the ISDS mechanism. Reforming the ISDS mechanism will require all stakeholders to carefully consider the issues and the scope, nature, and feasibility of eachpotential reform.

• 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.60
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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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.68
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• pp.89-121
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• 2015

Investor-State Dispute Settlement(ISDS) grants a foreign investor the right to access an international arbitrator, if he believes actions taken by a host government are in breach of commitments made in an investment agreement or an investment treaty. The arbitration procedure of ICSID is made specifically to resolve investment disputes, so most of investment disputes have been settled in accordance with the procedure. Owing to limitation of dispute settlements through the ICSID arbitration procedure, several investment dispute conciliation schemes have been emerged as alternatives. In the case of a conciliation, the conciliation procedure will be in progress based on arbitrary agreement between parties, and if both parties agree on a conciliation program, then the arbitrary execution rate is relatively higher than that of arbitration procedures. In addition, it is evaluated that the time duration of conducting a conciliation procedure is in general rather short in 8 to 24months, and its incumbent cost is also rather inexpensive. Most of all, through amicable settlement of a dispute between a foreign investor and a host state, the foreign investor may continue his investment activities without a hitch, while the host state may invite more investment without any risk of losing its external credibility. In conclusion, it is desirable to lead any investment dispute between a foreign investor and a host state settle in accordance with the dispute settlement procedure as specified in the relevant investment agreement. In addition, to make the foreign investor continue his investment activities, it will be necessary to provide a separate investment dispute conciliation system aside from such arbitration procedures to cope any unexpected incident flexibly.