• Asia-Pacific Journal of Business
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• v.10 no.1
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• pp.117-133
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• 2019

This paper examines the most-favored-nation treatment clause on the BITs concluded by China and examines the attitudes of China on the application of the most-favored-nation treatment clause to the ISDs by period as the scope of arbitration increases. Moreover, this study pointed out the problems that would be exposed if the most-favored-nation treatment clause applies to ISDs and then also suggested solutions. The conclusions of this study are as follows; if the Chinese government strictly restricts the applicable expansion of the most-favored-nation treatment clause to the dispute settlement procedure by considering only the position of the capital importing country, it implies a contradiction against the development trend of the arbitration system related to international investment disputes. Of course, in order to protect the rights of Chinese investors investing abroad, expanding the applicability of the most-favored-nation treatment clause to the ISDs procedure unconditionally may have a negative impact under China's dual status of being a capital-importing country and a capital-exporting country. Therefore, China should clearly define the scope of application of the most-favored-nation treatment clause, the completion of the local remedy for the host country in cases of BIT to be concluded in the future or amended, and also clearly define that the most-favored-nation treatment clause should not be retroactively applied into BITs already concluded as an exception of applicability of the most-favored-nation treatment.

• Korea Trade Review
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• v.44 no.2
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• pp.95-107
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• 2019

The ICSID arbitral tribunal shall determine the suitability of investors in accordance with the Article 25 of the ICSID convention and the investment or investor's provisions under the BIT. The eligibility of investors has an important role in establishing jurisdiction under international investment disputes. Therefore, this study draws implications on issues related to investor qualification, focusing on ICSID arbitration. The investor's nationality shall be taken into consideration in determining whether the investor is eligible. The criteria for determining the nationality of a corporate investor include the place of incorporation, main business location, and substantial ownership or control. The criterion of the place of incorporation that is used in a number of BIT have the problem of protecting investors from third countries not involved in the BIT. So, in recent years it is stipulated that the actual economic activity or the main business location as well as the place of incorporation criteria. And this problem is complemented by the denial of benefit clause. When determining whether a local corporation is controlled by foreigner in the host state it considers the shareholding rate, voting rights, and the exercise of managerial rights. There is a tendency to recognize shareholder's right to petition. Thus the same damage should not cause problems such as duplicate repayment or double reimbursement between the shareholders and the company. Unexpected problems can arise if the scope of investments and investors is broadly specified in the BIT. Therefore, it is necessary to clarify the scope of investment to be protected.

• Korea Trade Review
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• v.41 no.5
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• pp.305-323
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• 2016

The scope of umbrella clause is very important because it is possible to extend or reduce the range of protection of the investment. Umbrella clause stipulated in the majority of BIT is often controversial, since there is no established criteria for the scope. So, this study considered ICSID arbitration cases related to the scope of umbrella clause. There are two different approaches for the scope of umbrella clause by arbitral tribunals. First, all of the disputes on the investment contract elevated to the disputes on the BIT. And umbrella clause can be applied that the host state entered into investment contract not only as a sovereign but also as a merchant. Second, all of the claims on the investment contract don't elevate to the claims on the BIT. Umbrella clause can be applied only if the host state violates the protected investment contractual rights and obligation under the BIT. And umbrella clause can be applied that the host state entered into investment contract as a sovereign but not as a merchant. Therefore, this study suggests to concretely specify the scope of umbrella clause under the BIT. And it is necessary to improve predictability by establishing continual database of the scope of umbrella clause and to prepare for investment disputes related to the scope of umbrella clause.

• Korea Trade Review
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• v.42 no.4
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• pp.139-157
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• 2017

Whether an investor can invoke a dispute settlement procedure stipulated in other BIT based on the MFN clause in the original BIT is an important issue. There is a difference in the interpretation of MFN clause in which the scope of the treatment stipulates the slightly different contents for each investment treaty. Therefore, this study considered ICSID arbitration cases related to the applicability of MFN clause for investment dispute settlement provisions. There are two different approaches for the applicability of MFN clause by arbitral tribunals. At first, the expanded interpretation of the MFN clause can be applied to procedural regulations, in that the purpose of the investment treaty is to protect foreign investors and to ensure their status. So, foreign investors can invoke a BIT of a third country that is advantageous to them. Second, the limited interpretation of the MFN clause can not be applied to procedural regulations. Without explicit regulation, the term treatment can not be considered to include dispute resolution provisions. And the BIT that the host state has concluded with third country is a treaty that applies only to the contracting party, so it can not be used by foreign investors of other nationality. Therefore, this study suggests concretely stipulating the scope of MFN clause under the investment treaty, highlighting that certain restrictions should be applied to the MFN clause. Furthermore, it is required continually investigating and analyzing the database of the scope of MFN clause.

• Journal of Arbitration Studies
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• v.21 no.3
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• pp.189-211
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• 2011

This article aims at analysing the practical problems of FOB and CIF terms relating to Incoterms$^{(R)}$2010 in case of L/C transactions and presenting the defending measures against them. According to Incoterms$^{(R)}$2010, FOB and CIF terms are to be used only for sea or inland waterway transport and require the seller deliver the goods on board the vessel nominated by the buyer at named port of shipment. So if FOB and CIF terms will be used in sea transport under L/C transaction, the seller should ship the goods on the nominated vessel and present the shipping document indicating "on board vessel" to the issuing bank but the parties agree to present the received bill of lading according to special condition on L/C which is" received bill of lading are acceptable". In practical transaction, FOB and CIF terms are usually used in aircraft cargo, container cargo or multimodal transport. these facts are a violation of Incoterms. Incoterms$^{(R)}$2010 which regulated that FOB and CIF terms may not be appropriate where goods are handed over the carrier before they are on board the vessel for example goods in container. These transactions are a temporary expedient and breach of Incoterms in the international trade which must be corrected as soon as possible.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.67
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• pp.143-162
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• 2015

Russia has a huge amount of energy resources. It is an attractive factor to countries which spend loads of energy. Republic of Korea is also one of large energy consumption countries. Therefore, It will be needed to raise energy cooperation with Russia. It's companies will increase trade focusing on the energy industry in the long term. Recently, However, Foreign companies should be careful when they enter the rapidly changing Russia market. In other words, companies will need a strategic approach to prepare the early case assessment and how to solve a possible dispute as they analyze cost and profit in business. This study is analyzing several dispute cases related in Russia. It presents some strategies for Korean companies such as dispute resolution method, arbitration institution selection method and so on. In addition, it proposes the introduction of the early case assessment for reducing a waste of time and cost. Furthermore, according as the importance of OECD Guidelines for Multinational Enterprises is highlighted in international community, companies should prepare practical division to establish a system of responsible business conduct. Finally, they will have to get an advice and counseling from the Russia legal experts in the early stages of the contract.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.51
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• pp.133-158
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• 2011

The purpose of this study is to analyze one of CIETEC(China International Economic and Trade Arbitration Commission) Award on the dispute arising from Cotton Sale Contact which deals with damages and reduction of the price. Especially this case focused on the effect of reduction of the price to damages. The purpose of damages is to place the aggrieved party in as good a position as if the other party had properly performed the contract. So court costs and attorney's fee should be regarded as the loss, because these are caused by consequence of the breach which is recoverable. With the same reason, overpaid taxes should also regard as the loss. It is not impossible, however, to claim both damages and reduction of the price for same loss at the same time. It means buyer could not claim damages for the same loss, once he already claimed reduction of the price. So Korean companies should consider which remedy is proper to himself under the circumstances. He should choose reduction of the price when market price is down. In case of rising market price, he should consider follows: first, it is better to choose damages based on current price(Art.76), if upswing of non-conformity price is higher then upswing of market price. Second, it is better to choose general rule for measuring damages(Art.74), if upswing of market price is higher then upswing of non-conformity price.

• Journal of Arbitration Studies
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• v.22 no.2
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• pp.31-52
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• 2012

Although political uncertainty exists between China and Taiwan, the two countries have been expanding their economic exchange since the 1980s. That economic exchange is not limited to trade, and its investment segment is constantly expanding. The investment was one-sided by Taiwan in the past, but since a change in policy by the Taiwan government in 2009, Chinese capital is able to flow into Taiwan for direct investment. These kinds of policy changes related to investment between the two countries require follow-up actions such as profit protection for investors, elimination of investment limitations, simplification of investment procedures, and establishment of an investment dispute resolution system. The main topic of this study is the resolution mechanism for investment disputes between China and Taiwan. At present, an individual investment dispute between two countries is settled according to each country's own regulations for dispute resolution. However, these two countries have not prepared dispute resolution regulations related to cases of investment disputes between Chinese or Taiwanese investors and the Chinese or Taiwanese government, or between the Chinese government and the Taiwanese government. Moreover, they do not have any agreements related to investment disputes. Therefore, in this paper, I enumerate the regulations related to investment dispute resolution between China and Taiwan, and then I point out the problems and suggest solutions for improvement. Also, through this study, I would like to contribute to establishing and implementing an investment dispute resolution mechanism between South Korea and North Korea.

• Journal of Arbitration Studies
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• v.22 no.2
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• pp.79-101
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• 2012

In 2010, the United Nations Commission on International Trade Law (UNCITRAL) initiated work on the settlement of disputes in international e-commerce through online dispute resolution (ODR). The basic goal is to use ODR to resolve disputes with low value but high volume in international e-commerce. The background is that consumers have no way to solve their legal problems in this area. An ODR system is intended to create a new way to enforce their rights. However, the legal situations of the countries in the e-commerce sector, particularly in consumer protection, are very diverse. Thus, no reasonable model for conflict resolution is available. Some countries consider this as public policy and want absolute protection of their consumers. Other countries want to encourage freer e-commerce trading. This diversity of consumer protection policy is an obstacle to ODR. However, sooner or later, reaching an agreement is feasible because each representative is making a reasonable effort to reach the goal.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.77
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• pp.91-112
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• 2018

Mediation is one of several alternatives to litigation or arbitration. It is the most informal of the alternatives and the only one that gives the parties control over the outcome. The mediator in mediation is there to help the parties persuade each other that it is in their best interests to settle. As several advantages of mediation, it is considered as the fastest way to resolve a dispute because procedures associated with litigation are not imported into the process. In mediation, the client's resources are focused on resolving the dispute as opposed to building armaments of evidence to buttress legal and factual positions. The AAA commercial mediation rules and operations in the USA are very successful owing to professional training for mediators and simple procedures for mediation to the public. Comparison with USA mediation, KCAB mediation system has several weak points. KCAB mainly deals with administrative matters related to Foreign Trade Law. Therefore, it is necessary for KCAB to come up with more improved international commercial mediation. For example, mediation should be promoted to the public as who easily rely on litigation or arbitration. Second, Setting a rule for easy access to mediation is needed by bench marking AAA's mediation guidelines and operations. Third, professional mediators should be developed by establishing relevant ADR course in law schools. This article investigated some differences of mediation system between KCAB in Korea and AAA in USA, and present some suggestions in order to promote International commercial mediation in KCAB.