• Journal of Arbitration Studies
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• v.32 no.2
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• pp.85-114
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• 2022

When human rights disputes are related to the cross-border investments treaties, the investment arbitral tribunals are confronted with the question of how to adjudicate connected human rights violations. The traditional structure restricts arbitration proceedings to the parties named within an investment treaty, i.e., Investor-Claimant and State-Respondent. If human rights issues occur, States must act as proxies for citizens with human rights claims. This effectively excludes individuals or groups with human rights concerns and contradicts the premise of international human rights law that seeks to empower human rights-holders to pursue claims directly and on an international stage. The methods for intorducing human rights issues in the context of investment arbitration proceedings are suggested as follows: First, human rights arguments can be introduced into ISDS by the usual initiator of investment disputes: the investor as the complainant. Especially, if the jurisdictional and applicable law clauses of the respective international investment agreements are sufficiently broad to include human rights violations, adjudicating a pure human rights claim could be possible. Second, the host state may rely on human rights argumentation as a respondent of an investor claim. Human rights have played a role as a justification for state measures undertaken to comply with human rights laws. Third, third party interventions by NGOs and civil society groups as amici curiae may act as advocates for affected populations or communities in response to the reluctance of governments to introduce their own human rights duties into the investment dispute. Finally, arbitrators have also referred to human rights ex officio, i.e., without having a dispute party referring to the specific argument. This was mainly the case in the context of determining the scope of property rights and the existence of an expropriation. As all U.N. member states have human rights obligations, international investment laws must be presumed to be in conformity with the relevant human rights obligations.

• Journal of Korean Society of Industrial and Systems Engineering
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• v.26 no.3
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• pp.10-17
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• 2003

Under the sudden change of competitive environment, the economic cooperation as a part of survival strategy is being a big issue among countries. There was much discussion based on the geological adjacency as well as cultural homogeneity regarding the economic cooperation of three countries, Korea, China, Japan. It has been also known that major trade countries of the world concluded the treaty of region trade, then extended the number of export, and drew a success in foreign direct investment. It can be considered that Korea will play a major role in the three countries' automobile industry based on Japanese demonstrated technology, Chinese resources, market and experience with their economic cooperation. Therefore it is expected that a big result will be achieved throughout such a role play of each country. This paper has a purpose to light up the distinctive quality and the present condition of each country in automobile industry, and to promote the foundation of three countries' economic cooperation. It is convinced that the economic cooperation of three countries, Korea, China and Japan in automobile industry, will play a great role in the world automobile market.

• Korea Trade Review
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• v.48 no.1
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• pp.55-81
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• 2023

The purpose of this study is to analyze the main issues and trends of Korean trade, and to draw implications for future research regarding trade rules. A total of 476 academic journal are analyzed using English keyword searched for 'Trade Rules' from 2000 to July 2022 in the Korean Journal Citation Index data base. The analysis methodology includes co-occurrence network and topic trend analysis which is a kind of text mining methods. The results shows that key words representing Korea's trade trend fall into four categories in which the number of research journals has rapidly increased, which are Topic 4 (Investment Treaty), Topic 7 (Trade Security), Topic 8 (China's Protectionism), and Topic 11 (Trade Settlement). The major background for these topics is the tension between the United States and China threatening the existing international trade system. A detailed study for China's protectionism, changes in trade security system, and new investment agreements, and changes in payment methods will be the challenges in near future.

• Asia-Pacific Journal of Business
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• v.14 no.4
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• pp.371-385
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• 2023

Purpose - The purpose of this study is to analyze Korea's trade relations centered on the MERCOSUR, a major economic integration in Latin America, and identify its problems and suggest measures that can be taken by the government and corporations to reinforce economic cooperation. Design/methodology/approach - To improve the level of contribution of the study, an empirical analysis is necessary. However, due to limited data access, the study will approach the topic of trade relations between Korea and the MERCOSUR with various statistics and literature. Findings - First, there is an urgent need for changes in import-export goods between Korea and the MERCOSUR, as trade is focused on specific items. Second, although foreign direct investment from Korea to the MERCOSUR is centered in manufacturing and mining industries, there should be different investment strategies by countries and industries. Third, it is necessary to reinforce commercial cooperation. Korea currently has Free Trade Agreements with Chile, Peru, and Columbia, but not with MERCOSUR. Therefore, Korea must take active measures to sign an TA with MERCOSUR, which has been put on hold. Research implications or Originality - Latin America has the most thriving market when it comes to Free Trade Agreements worldwide. MERCOSUR is a South American Trade Bloc established by the Treaty of Asunción in 1991 and Protocol of Ouro Preto in 1994. Its full members are Brazil, Argentina, Uruguay and Paraguay. However, there is still a lack of research on the MERCOSUR, and corporations that aim to enter the Latin American market face difficulties due to lack of information. By investigating MERCOSUR and its prospects and analyzing the trade relations with Korea, this study will provide strategic measures for corporations that wish to enter the Latin American market.

• Proceedings of the Society of Korea Industrial and System Engineering Conference
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• 2002.05a
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• pp.217-226
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• 2002

Under the sudden change of competitive environment, the economic cooperation as a part of survival strategy is being a big issue among countries. There was much discussion based on the geological adjacency as well as cultural homogeneity regarding the economic cooperation of three countries, Korea, China, Japan. It has been also known that major trade countries of the world concluded the treaty of region trade, then extended the number of export, and drew a success in foreign direct investment. Resent automobile industry is being ran by the center of America, Europe and Japan. Korea only has a successful experience of restoration of automobile industry in the half of a century after his beginning. It is true that China is trying to do best to raise his automobile industry. Also Japan is a leading automobile country guiding automobile industry all over the world. It can be considered that Korea will play a major role in the three countries' automobile industry based on Japanese demonstrated technology, Chinese resources, market and experience with their economic cooperation. Therefore it is expected that a big result will be achieved throughout such a role play of each country. This paper has a purpose to light up the distinctive quality and the present condition of each country in automobile Industry, and to promote the foundation of three countries' economic cooperation. It is convinced that the economic cooperation of three countries, Korea, China and Japan in automobile industry, will play a great role in the world automobile market.

• Journal of Arbitration Studies
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• v.24 no.4
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• pp.49-97
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• 2014

This study is about the availability of Chinese internal arbitration institutions by Korean invested companies. Generally, Chinese internal arbitration institutions lack independence from government. However, because parties seeking an arbitration award have ways to get neutrality from internal arbitration institutions that guarantee party autonomy, these Korean companies can use Chinese internal arbitration institutions to resolve disputes in China. Special attention should be given to the following. First, because Korean companies invested in China are legally in the same position as Chinese companies, unless foreign-related factors intervene, when disputes occur with Chinese companies or individuals, the disputes correspond to internal dispute, and when it comes to choosing the arbitration institution, these Korean companies must choose either a Chinese internal arbitration institution or foreign-related arbitration institution. Second, most Chinese internal arbitration institutions still lack independence from government, which can influence the fairness of arbitration in the future. Therefore, Korean companies invested in China should think about alternative ways to get a minimum impartiality in arbitration cases. Third, the parties are allowed to choose arbitration rules freely in Beijing, Xian, Chongqing, Guangzhou, and Hangzhou arbitration commissions. Therefore, in arbitration cases, the parties can get impartiality by choosing arbitrators according to the arbitration rules which they agree on, or by choosing partially modified arbitration rules of those arbitration commissions. Fourth, in order to get an impartial arbitration award from Chinese internal arbitration institutions in China, it is important for Korean lawyers or arbitration experts -- fluent in Chinese -- to be registered in the List of Arbitrators of Chinese internal arbitration institution by way of signing a MOU between the Korean Commercial Arbitration Board, or the Korean Association of Arbitration Studies and arbitration commissions such as those of Beijing, Xian, Chongqing, Guangzhou, and Hangzhou which comparatively do guarantee party autonomy. Fifth, because application of the preservation of property before application of arbitration is not approved in China, in practice, in order to preserve property before application of arbitration, it is best to file another suit in China based on other legal issue (e.g., tort) independent from the contract which an arbitration agreement is applied to. Sixth, in arbitration commissions which allow different agreement regarding arbitration procedures or arbitration rules, it is possible to choose a neutral arbitrator from a third country as a presiding arbitrator via UNCITRAL arbitration rules or ICC arbitration rules. Seventh, in the case of Chinese internal arbitral award, because the court reviews the substantive matters to decide the refusal of compulsory execution, the execution rate could be relatively lower than that of foreign-related cases. Therefore, when Korean companies invested in China use Chinese internal arbitration institution, they should endure low rate of execution. Eighth, considering the operational experiences of public policy on foreign-related arbitration awards so far, in cases of Chinese internal arbitration award, the possibility of cancellation of arbitral award or the possibility to refuse to execute the award due to public policy is thought to be higher than that of foreign arbitral awards. Ninth, even though a treaty on judicial assistance in civil and commercial matters has been signed between Korea and China, and it includes a provision on acknowledgement and enforcement of arbitral award, when trying to resolve disputes through Chinese internal arbitration institution, the treaty would not be a big help to resolve the disputes, because the disputes between Korean companies invested in China and the party in China are not subject to the treaty. Tenth, considering recent tendency of conciliation by the arbitral tribunal in China and the voluntary execution rate of the parties, the system of conciliation by the arbitral tribunal is expected to affect as a positive factor the Korean companies that use Chinese internal arbitration institution. Finally, when using online arbitration, arbitration fees can be reduced, and if the arbitration commissions guaranteeing party autonomy have online arbitration system, the possibility of getting impartial arbitration award through them is higher. Therefore, the use of online arbitration system is recommended.

• 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.

• Journal of the Korea Society of Computer and Information
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• v.25 no.10
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• pp.185-191
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• 2020

This article proposes the unified an arm's length price of transfer pricing for thin capitalization since the scope of permanent establishment has been enlarged under Digital Economy and the implementation of Blackchain system to resolve the drawback of finding an arm's length price. The rule of current thin capitalization runs against the non-discrimination of taxation of the tax treaties and the national treatment which deals fairly with goods, sercice and capital money within the country under the treaty of commerce and navigator. In addition, the information of comparable uncontrolled debt are not available of current system to prove the debt which is not subject to the rule of thin capitalization. The united an arm's length price of transfer pricing for thin capitalization can apply to foreign investment as well as domestic corporations, thereby resolving the problem of the non-discrimination of taxation of the tax treaties and the treaty of commerce and navigation. The availability of transaction level data through Blockchain platform to decide whether the debt can be subject to thin capitalization can resolve the issue of comparable uncontrolled debt transaction which can't be found in current business transactions. This article should shed light on the proposing of the unified an arm's length price of transfer pricing for thin capitalization and Blockchain system to prevent the income shifting. This propose provide implication for policymakers on current system of thin capitalization and arm's length principles.

• Journal of Arbitration Studies
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• v.27 no.2
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• pp.37-57
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• 2017

On 9 March 2017, a Tribunal constituted under the ICSID Convention issued its ruling in the case of Ansung Housing v. People's Republic of China, dismissing with prejudice all claims made by the Claimant, Ansung Housing Co., Ltd., in its Request for Arbitration, pursuant to ICSID Arbitration Rule 41(5). Ansung Housing v. PRC has drawn attention since it is the first case where an investor with Korean nationality initiated an ICSID arbitration on the basis of the Korea-China Bilateral Investment Treaty (BIT) as amended in 2007 between the Republic of Korea and the People's Republic of China. The Tribunal finds that its ruling is about a lack of jurisdiction of the ICSID and of its own competence as well as regarding manifest lack of legal merit due to a lack of temporal jurisdiction, since a Respondent's Rule 41(5) objection is concerned with the three-year limitation period in Article 9(7) of the Korea-China BIT. The Tribunal held that, under Article 9(7) of the Korea-China BIT, the limitation period begins with an investor's first knowledge of the fact that it has incurred loss or damage, not with the date on which it gains knowledge of the quantum of that loss or damage. Finally, the Tribunal held that Ansung submitted its dispute to ICSID and made its claim for purposes of Article 9(3) and (7) of the BIT after more than three years had elapsed from the date on which Ansung first acquired knowledge of loss or damage and that the claim is time-barred and, as such, is manifestly without legal merit. It remains to be seen whether the aggrieved Claimant initiates annulment proceedings before an ad hoc committee under the ICSID Convention. It is quite interesting to see whether the decisions by the Tribunal should be reversed on the basis of the Claimant's arguments as to the start date as well as the end date of the limitation period under the Korea-China BIT.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.38
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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.