• 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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• 제18권1호
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• pp.147-165
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• 2008

Appointment of arbitrators is very important in arbitration. As it has been a long laps since Korean peninsula was devided into two parts, South and North, it has come to be too much gaps between South and North in the law, social system, commercial practice and etc.. South Korea is familar to international commercial practice and capitalistic legal system generalized internationally in modern times. On the other hand as North Korea was closed society for a long time, they are not familar to international commercial practice and market economy. In this connection, commercial disputes arising from the transactions between South and North will occur frequently and it will be very difficult to select governing law or commercial practice referred to the disputes. Under the circumstances, when and if an arbitrator from South or North will be appointed as presiding arbitrator in the tribunal composed by three arbitrators, the part from which the presiding arbitrator come will be a majority, and it will be advantageous to the parties came from the part of which the presiding arbitrator come from. Such being the case, sole arbitrator or presiding arbitrator needs to be appointed among foreigner. Otherwise I recommend the tribunal composed by two arbitrators and umpire system. As to arbitrator's fee, as there is a big gap in its economic aspects between South and North, I supposed to need establishing the fund made by corporation with South and North in order to compensate arbitrators from South or abroad for their fee. Finally it is more important to prevent disputes arising from transactions between South and North. In order to prevent the disputes, education for North Korean about international commercial practice and skill to make a contract of international sale of goods and investment are needed.

• 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.

• 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.

• 한국콘텐츠학회논문지
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• 제13권12호
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• pp.702-714
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• 2013

한중일은 새로운 경제성장을 위한 고민과 더불어 외자를 유치함에 있어 새로운 도전과 어려움에 직면해 있다. 향후 한중일 FTA는 3국간의 투자를 더욱 촉진 할 것으로 기대되고 있다. 이 논문은 한중일 3국간의 투자에 관한 법적체계와 제약요소 및 투자규칙에 관한 연구를 하였다. 3국간의 무역경제 관계와 투자흐름을 검토하고, 이를 배경으로 3국의 외국투자에 관한 법적체계 및 투자규칙에 관한 검토를 통하여 상대국에 있어서 투자에 관한 주요한 제약이 무엇인지, 향후 한중일 FTA는 3국간의 투자를 더욱 촉진하기 위해서는 한중일 FTA 투자 장(章)에 포함해야 할 것이 무엇인지를 제시하고자 하였다. 한중일 FTA는 3방향의 투자 흐름을 원활화하고 3국간에 투자자와 투자보호를 강화하기위한 효과적인 수단이 될 것이다. 이 점에서 향후 한중일 FTA 투자 장은 내국민 대우, 최혜국대우, 특정조치의 이행요구의 금지 및 경영진이나 이사회의 국적 요건, 자금의 이전, 세이프가드 조치, 수용 및 보상, 손실에 대한 보상, 공정 형평 대우, 투자자 대 국가의 분쟁 해결 및 3국 간 합의 된 다른 요소를 포함해야한다.

• 무역학회지
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• 제42권4호
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• pp.139-157
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• 2017

투자협정상의 MFN 조항을 실체적인 규정 외에 절차적인 규정에까지 적용할 수 있는지에 대한 논의는 보호 범위를 결정하기 때문에 중요한 의의를 가진다. 그러나 투자협정마다 MFN 조항에서 대우의 범위를 조금씩 상이하게 규정하고 있어 이에 대한 해석의 차이가 존재한다. 그러므로 본 연구는 ICSID에서 판정한 중재사례에 초점을 맞추어 국제투자분쟁에서 외국인투자자가 원 투자협정상의 MFN 조항을 통하여 다른 투자협정상에 규정된 분쟁해결절차를 원용할 수 있는지를 분석함으로써 MFN 조항의 적용범위를 획정할 수 있는 기준들을 도출하여 유용한 시사점 및 실무적인 지침을 제시하고자 한다.

• 한국중재학회지:중재연구
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• 제23권4호
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• pp.29-53
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• 2013

Chinese ISD has been changed a lot since the reformation policy in 1978 and it is expected that China will present a changed attitude toward its advantage as its industrialization continues to advance. This study generally examines the ISD in BIT and also considers not only the attitude of China with regard to ISD but also the changes on the Chinese side. Moreover, this study determines the areas on which the Chinese government focuses. In order to conduct this study, the author attempts to classify the attitudes on ISD into chronical change and treaty powers based on the analysis of BIT. In addition, the paper examines the main contents of ISD in BIT which previously involved an agreement such as arbitral institution, arbitral range, counter-measures of local country, standard for admitting the nationality of corporate investors, and recognition and enforcement of arbitral award. Based on analysis, this paper mentions matters that require attention and caution in the Korea-China FTA as regards investment negotiation, and also suggests instructions for investors who may face dispute with the Chinese government.

• 한국중재학회지:중재연구
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• 제27권2호
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• pp.3-18
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• 2017

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.

• 무역상무연구
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• 제71권
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• pp.195-216
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• 2016

In determining the content of the FET standard, the tribunals stated protection of investor's legitimate expectations, due process and denial of justice, transparency, discrimination and arbitrariness, good faith, etc. The most major elements of the FET standard is the protection of the investor's legitimate and reasonable expectations. It is necessary to consider whether it is possible to what the expectations of investors are protected as legitimate and it is formed under any circumstances. If host state frustrate investor's legitimate expectations, it found a breach of the FET. The host state's specific assurance may reinforce investor's expectations, but such explicit statement is not always necessary. The host state must preserve a stable environment for investments. However, It must not be understood as the inalterability of the host state's legal framework. It implies that the host state's subsequent changes should be made consistently and predictably. The host state is entitled to exercise a reasonable regulatory authority to respond to changing circumstances in the public purpose. Therefore, whether the violation FET shall be determined through a balanced against the investor's legitimate expectations and the host state's reasonable regulatory exercise in the public interest. And investor should keep in mind that the principle of proportionality is applied unless host state provides stabilization clause or similar commitments to investor. Also host state should establish the basis of an argument about reasonable regulatory authority for public interest.

• 통상정보연구
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• 제16권5호
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• pp.67-86
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• 2014

상사중재는 문제를 해결하고 사업 파트너간 분쟁에 대한 해결책을 찾는 신속하고 효과적인 방법이다. 상사중재 발전을 위해 이론 뿐 만 아니라 실무차원에서 중재연구의 접근이 필요하다. 본 논문은 파키스탄 국내 중재법과 파키스탄에서 적용되는 국제상사중재제도에 대한 상황과 접근방법 등을 제시하였다. 파키스탄에서 새롭게 정비된 2009년 중재법은 국내중재, 국제상사중재, 외국 중재판정의 집행뿐 만 아니라 국제투자분쟁의 해결에 관한 법률을 통합하는 것을 목표로 한다. 더 나아가 2011년에 파키스탄 투자자의 신뢰를 회복하기 위해 외국인 투자자를 보호할 수 있는 법을 도입하기도 하였다. 본 논문은 파키스탄의 중재법의 과거부터 현재까지 진전된 관계를 설명하고 새로운 법령에 의해 적용된 변경사항을 설명하고 중재계약 및 판정을 다루는 파키스탄 중재 법률, 규칙 및 절차를 실무차원에서 포괄적으로 제시하였다. 잠재시장인 파키스탄관련 통상정보가 부재한 상황에서 한국무역학자들에게 파키스탄 상사중재제도에 관한 실무적 이해를 돕기 위하여 작성되었다.