• 통상정보연구
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• 제19권1호
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• pp.155-187
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• 2017

WTO에서는 GATT체제에서 나타났던 분쟁해결에 따른 문제점을 해결하기 위해 복잡한 절차를 분쟁해결양해(DSU)로 통일하였으며, 분쟁해결을 담당하는 상설기관으로 DSB와 상소기관(the Appellate Body)을 설치하였다. 또한 패널보고서의 신속한 의사결정을 위해 역총의제(reverse consensus system)를 도입하고, 사법적 기능을 크게 강화하는 등 절차에서 많은 개선이 이루어졌다. 그러나 미국은 아직도 자국법인 통상법 제301조를 통하여 일방적으로 분쟁해결을 시도하고 있다. 이와 같은 301조에 의한 일방적 보복조치는 공정한 분쟁해결을 저해하는 WTO협정위반에 해당한다. 따라서 본 논문에서는 DSU의 특성과 최근 동향을 검토하고, WTO에서 합법적으로 인정하고 있는 대항조치와 미국의 일방적 보복조치를 비교하였다. 또한 일방적 보복조치에 따른 대표적인 US-Japan Automobiles (DS6) 사건과 EC-Bananas III (DS27) 사건을 법제적으로 분석하였다. 결과적으로 이러한 사건들은 WTO의 정합성(WTO-consistency)에 맞지 않는 것으로 미국의 일방적 보복조치가 국제적으로 인정되기 어렵다는 점을 시사점으로 제시하였다.

• 한국중재학회지:중재연구
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• 제20권1호
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• pp.87-107
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• 2010

This paper reviews the distinctive characteristics between e-Trade and e-Commerce in view of commercial arbitration in Korea and explores several improvements for the role of commercial arbitration. As the volume of e-Trade and e-Commerce has expanded day by day, there will be more disputes between traders no matter where the commerce may occur. But despite increasing of the disputes relating to e-Commerce transaction, it seems that the role of commercial arbitration has been shrunk instead. Korea needs to improve the role of commercial arbitration in order to meet and lead the age of u-Trade Hub(u-TH) service and to adopt an offensive or active attitude when arbitration used. Moreover, it is suggested that the competence of arbitration should not only be intensified more precisely but also be redesigned more systematically. Korea should take advantage of arbitration resources actively such as arbitrators as human resource and experiences as knowledge assets and also prepare the policy for sharing those arbitration resources between arbitrators more effectively.

• 한국중재학회지:중재연구
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• 제30권4호
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• pp.3-29
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• 2020

The WTO's dispute settlement system has played a significant role in settling trade disputes between countries, and its function and role have been expanded by handling about 596 disputes since its establishment in 1995. This shows that the WTO's dispute settlement system is gaining enormous trust among member countries that it recognizes as a fair, effective, and efficient system for resolving trade disputes. The U.S. remains uncooperative in the WTO dispute settlement system, citing disregard for the 90-day deadline for appeals, continued service by persons who are no longer A.B. members, issuing advisory opinions on issues not necessary to resolve a dispute, A.B. review of facts, and review of a member's domestic law de novo. The A.B. claims its reports are entitled to be treated as a precedent. These problems should be gradually improved through various discussions and agreements by establishing a multilateral forum for resolving disputes and gradually ending the problems through reform of the DSU.

• 한국중재학회지:중재연구
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• 제30권3호
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• pp.3-19
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• 2020

With the advent of the Free Trade Agreement between Korea and the U.S. and an increase in trade volume between the two countries, the possibility of commercial disputes has escalated among international merchants. It has been well-known that arbitration as an alternative dispute resolution is an efficient way to resolve international commercial disputes. When arbitral awards are enforced in the judicial system, the court will inevitably have to be involved with the enforcement procedures. The court is a typical legal entity to confirm arbitral awards. Through a confirmation process, the winning party obtains the same legal status of final judgment rendered by the court. However, a winning party in arbitration will have to overcome a legal hurdle in the enforcement process of arbitral awards. This article aims to investigate how the courts control the arbitration practices and what the basic legal issues in the enforcement of arbitral awards are. The US Federal Arbitration Act is investigated, while relevant cases are reviewed and updated for legal analysis.

• 한국중재학회지:중재연구
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• 제18권3호
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• pp.71-89
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• 2008

International technology transfer(ITT) or technology trade is a very comprehensive term covering various mechanisms and channels for shifting technologies across borders. Thus, it refers to numerous complex processes, ranging from innovation and international marketing of technology to its absorption and imitation. It includes technology, trade, and investment. Markets for exchanging technologies are inherently subject to failure due to appropriability problems, spillovers, asymmetric information, and market power. Thus, there is strong justification for public intervention. Technology developers are interested in reducing the costs and uncertainty of making transfers, along with protecting their rights to profit from such transfers. On the other hand, technology importers are interested in acquiring knowledge at minimal costs, asking for restricting sharply the exclusive rights of foreign firms to exploit technology. The purpose of this paper is to review the characteristics, risks, legal issues and contractual check points of ITT, focusing on the avoidance of commercial disputes during the very complex processes of ITT.

• 무역학회지
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• 제44권1호
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• pp.129-142
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• 2019

This paper draws implications on the ship finance of the Korean ECAs for shipbuilding industry from the perspective of WTO ASCM through studying the trade disputes on export credits. In consideration of the underwriting practice on the case-by-case basis, the ECAs' law regimes and their ship finance programs as such would be judged not conferring a benefit. The ship finance of international commercial banks could be treated as a market benchmark for the purpose of determining the existence of benefit in the ECA ship finance. The ECAs share securities with international commercial banks for the same exposure to the risks in a syndicate. Therefore, WTO DSB would rule that the ECA ship finance confers no benefit for individual transactions. The items (j) and (k-1) of ASCM Annex I are not allowed to interpret a contrario.

• 분석과 대안
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• 제2권1호
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• pp.31-69
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• 2018

This study examines the role of science in resolving trade disputes. After the Great East Japan Earthquake of 11 March 2011 that not only jeopardized the people of Japan, but also put the safety of an entire region at risk, the Republic of Korea (Korea) has imposed import bans as well as increased testing and certification requirements for radioactive material on Japanese food products. Japan has challenged these restrictions at the World Trade Organizations Dispute Settlement Body (DSB). This study aims to explain how international trade agreements and previous DSB rulings have dealt with different scientific viewpoints provided by confronting parties. In doing so, it will contrast the viewpoints espoused by Korean and Japanese representatives, and then analyzes the most similar case studies previously ruled on by the DSB, including the case of beef hormones and the case of genetically modified crops including biotech corn, both between the United States and the European Communities (EC). This study finds that science is largely subordinate to national interests in the case of state decision-making within the dispute settlement processes, and science has largely been relegated to a supportive role. Due to the ambiguity and lack of truly decisive decisions in the Appellate Body in science-based trade disputes, this study concludes that the Appellate Body avoids taking a firm scientific position in cases where science is still inconclusive in any capacity. Due to the panel's unwillingness to establish expert review boards as it has the power to do, instead favoring an individual-based system so that all viewpoints can be heard, it has also developed a system with its own unique weaknesses. Similar to any court of law in which each opposing party defends its own interests, each side brings whatever scientific evidence it can to defend its position, incentivizing them to disregard scientific conclusions unfavorable to their position. With so many questions that can arise, combined with the problems of evolving science, questions of risk, and social concerns in democratic society, it is no wonder that the panel views scientific information provided by the experts as secondary to the legal and procedural issues. Despite being ruled against the EC on legal issues in two previous cases, the EC essentially won both times because the panel did not address whether its science was correct or not. This failure to conclusively resolve a debate over whose science is more scientific enabled the EC to simply fix the procedural issues, while continuing to enforce trade restrictions based on their scientific evidence. Based on the analysis of the two cases of disputes, Korea may also find itself guilty of imposing an unwarranted moratorium on Japan's fish exports, only to subsequently pass new restrictions on labelling and certification requirements because Japan may have much scientific evidence at its disposal. However, Korea might be able to create enough uncertainty in the panel to force them to rule exclusively on the legal issues of the case. This will then equip Korea, like the EC in the past, with a way of working around the ruling, by changing whatever legal procedure they need to while maintaining some, if not most, of its restrictions when the panel fails to address its case on scientific grounds.

• 아태비즈니스연구
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• 제13권2호
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• pp.183-195
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• 2022

Purpose - The study attempted to analyze how the U.S.-China trade dispute affects a highly trade-dependent South Korea. Currently, major domestic and international institutions have issued a number of conflicting predictions that the trade dispute between China and the United States will have a positive and negative impact on South Korea. Accordingly, the present study attempted to analyze using actual data. Design/methodology/approach - The analysis was conducted using actual import and export data from the United States and China and actual import and export data from the United States and China from South Korea. The analysis measured the number and amount of imports and exports by year and month, and the rate of increase and decrease. We also looked at trade dispute days, import and export outcomes and what the impact was. In addition, as a result of the US-China trade dispute, the amount of change in Korea's imports and exports was analyzed. Findings - Empirical analysis shows that South Korea's exports to the United States and China have increased. The analysis results are as follows. First, exports to the United States increased by 5.65% in 2018 and 6.45% in 2019 compared to 2017. Second, exports to China surged 12.34% in 2018 compared to 2017. This increase in South Korea's exports to the United States and its mass exports to the United States shows that South Korea has benefited from the trade dispute between the United States and China. Research implications or Originality - South Korea, which is highly trade-dependent, has been heavily affected by the U.S.-China trade dispute. Various predictions are made about this. The analysis showed that South Korea's export volume has increased. In the end, the effect of the trade transition to the 3rd country did not occur. Rather, the U.S.-China trade dispute appears to have helped South Korea.

• 한국중재학회지:중재연구
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• 제20권2호
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• pp.27-47
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• 2010

It is well recognized that the availability of prompt, effective and economical means of dispute resolution is an important element in the orderly growth and encouragement of international trade and investment. Increasingly, arbitration, instead of litigation in national courts, has become the preferred means of resolving private international commercial disputes. Under the situation, it will be important thing for arbitral institutions to reach an agreement to promote the dispute settlement of the commercial disputes, for which efforts have been made between the Korean Commercial Arbitral Board(KCAB) and principal arbitration institutions of the foreign countries. Since 1973, the KCAB has entered into many arbitration agreements with well-known foreign institutions of arbitration. If the place of arbitration is not so designated by the parties, it, as a general rule, shall be the country of the respondent(s) under the Korea-Japanese Arbitration Agreement. On the other hand, the U.S.-Korean Commercial Arbitration Agreement maintains 'Joint Arbitration Committee which finally decide the place of arbitration. In 1996, the Korea-Austria Agreement of Cooperation was concluded for the prompt and equitable settlement on an amicable basis of commercial disputes. Under this Agreement, arbitral institutions between Korea and Austria agreed to act as an appointing authority in accordance with the UNCITRAL Arbitration Rules. It is also very important for Korea and China including North Korea to cooperate each other for the settlement of the commercial disputes within the Pan Yellow Sea Economic Bloc(PYSEB). The PYSEB is quickly becoming a distinctive and crucial region in the world sharing geographical proximity, many common historical experiences, and similar cultural norms and values although they have disparities in stages of development, trade and economic policies, and financial and legal frameworks. Finally, it should be considered to establish a central common system for settlement promotion of the commercial disputes within the PYSEB through the arbitration agreement. Such a dispute resolution system was already introduced and established within the area of the NAFTA, and it is called the Commercial Arbitration and Mediation Center for the Americas(CAMCA).

• 한국중재학회지:중재연구
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• 제31권3호
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• pp.69-89
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• 2021

General lawsuits can be chosen as a method of resolving patent disputes. However, a significant amount of time and money is wasted on litigation until the dispute is resolved. The Intellectual Property Framework Act in Korea requires the government to simplify litigation procedures and improve litigation systems to resolve intellectual property disputes quickly and fairly. As a result, accurate and timely resolution of patent disputes is given importance by the Korean government. Interest in arbitration as an alternative method of dispute resolution is growing. Although dispute resolution through arbitration is effective, the issue of resolving patent disputes through arbitration can lead to the arbitrability of patent disputes. It is therefore necessary to examine arbitrability of patent contracts and validity disputes. Korea has made efforts to reflect the model arbitration law of the United Nations Commission on International Trade Law for quick judicial resolution of patent disputes. Korea has also strengthened related systems for alternative resolutions. However, improving the arbitration system will necessitate a thorough examination of the systems and practices of the United States which is the country in the forefront of intellectual property. This paper examines the arbitrability of Korea's patent dispute and makes recommendations for more efficient dispute resolution system changes.