• Journal of Arbitration Studies
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• v.21 no.2
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• pp.47-64
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• 2011

The China International Economic and Trade Arbitration Commission(CIETAC) released online arbitration rules which apply the resolution of disputes over electronic commerce transactions, as well as other economic and trade disputes in which the parties agree to do. The evidence submitted by the parties may be electronic evidence created, sent, received or stored by electronic, optical or magnetic means. Electronic evidence with a reliable electronic signature shall carry the same effect and probative force as a document with a hand-written signature. Where a case is tried in a tribunal, the arbitration tribunal shall conduct an online trial hearing using internet video conference or other electronic or computer communication means. Unless the parties have another agreement, summary procedure shall apply to cases where the amount in dispute exceeds RMB 100,000 but no more than RMB 1 million, or where the amount in dispute exceeds RMB 1 million and a party submits a written application for summary procedure after obtaining the written consent of the other party. Unless the parties have agreed otherwise, fast-track procedure shall apply to cases where the amount in dispute does not exceed RMB 100,000 or where the amount in dispute exceeds RMB 100,000 and a party submits a written application for fast-track procedure after obtaining the written consent of the other party. Notable features of the Online Rules are as follows; first, there is not detailed consideration for online arbitration. Second, communications between the parties and the tribunal are allowed only through the Secretariat. Third, elaborate provisions regarding the electronic submission and transmission of documents is provided for. Forth, various factors must be considered by the tribunal in deciding the evidence's reliability. Fifth, reasonable endeavours is levied on CIETAC to keep data communications secure and encrypted. Sixth, the tribunal has the right to investigate and collect relevant evidence. And finally different procedures are provided for in consideration of the various types of E-commerce.

• 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.20 no.1
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• pp.109-131
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• 2010

Investment Agreement is to be a part of FTA, as negotiating together both trade and investment. For example, it has a separate chapter about investment in KORUS FTA contract and is more detailed and inclusive than BIT contents which are traditional investment provisions. It is called to the investment norm of FT A. The investment agreement lures a foreign investment by providing the environment which is stable to the foreign investors. Hence, it plans in goal for the economic development of the home country. In international investment, the arbitration award cases are coming out to be divided into two parts applying MFN provisions in investor protective principles and dispute resolution process; the tendency of broad interpretation and the tendency of limited interpretation. In the case of RosInvest Co UK Ltd v. the Russian Federation awarded in 2007, the arbitration tribunal interprets that the application scope of MFN provisions contain the more lucrative dispute provision than other BITs without limitations in entity right of the investor. This judgment is the same view as arbitration tribunal position of Maffezini case. The arbitration tribunal of Plama case has kept out an assertion magnifying the arbitration tribunal's jurisdiction. That is, for applying more inclusive investor-nation resolution method from different treaty, tribunal mentioned that MFN provision had to see clearly a point of applying the investor-nation dispute resolution method. Dispute resolution process providing inclusive MFN provision has both the tendency of broad interpretation and the tendency of limited interpretation. It needs ceaselessly to do the monitoring about cases of arbitration award. In conclusion, the point where MFN provisions are applied conclusively is recognized, but it is still controversial whether or not to magnify the jurisdiction of arbitration tribunal applying MFN provisions. Therefore, it does not exist clear principle in the theory or in the award eases about the application scope for entity protection provision of MFN. Hence, The Korean government of Korea and local autonomous entities needs to keep their eyes on the trend of the international arbitration award cases in relation to the investment dispute for the future. Also, Korean government or local self-governing group must consider MFN provisions when they make a contract of international investment treaty such as writing concretely the application of MFN provisions from KORUS FTA.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.41-65
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• 2010

It is a matter for debate that which types of dispute may be resolved by arbitration. This problem is concerning the arbitrability of the subject-matter of a dispute. National laws establish the domain of arbitration. Each state decides which matters may or may not be resolved by arbitration in accordance with its own political, social and economic policy. In response to complexity and diversity of a social phenomenon, the dispute also is various, therefore can not be settled efficiently by means of court adjudication to which applies a law strictly. To overcome such problems we are going to seek to make use of arbitration. According to Korean Arbitration Act Art. 3 (1), any dispute in private laws would be the object of arbitral proceedings. For the promotion of fair and free competition, it is increasingly wide-ranging antitrust legislation across the world. It is matter for debate what can an arbitral tribunal do when confronted with an allegation that the contract under which the arbitration is brought is itself an illegal restraint of trade or in some other way a breach of antitrust law. The underlying question is how to accommodate the conflicting congressional policies favoring resolution of private controversies by arbitration and encouraging private suits to protect the public interests served by the antitrust laws. It is necessary to inquire into the arbitrability of antitrust issues on case-by-case basis, because the types of them are quite diverse. If antitrust issues are the dispute in private laws and the contracting parties agreed to submit to arbitration disputes which have arisen or which may arise between them in the antitrust issues, the antitrust disputes are arbitrable. Not only international antitrust disputes but also domestic antitrust disputes are capable of being resolved by arbitration. When the public interests in the enforcement of antitrust legislation are asserted, it is possible to justify the annulment or the refusal of the recognition or the enforcement of an arbitral award that ignores public policy as a matter of it.

• Journal of Arbitration Studies
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• v.8 no.1
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• pp.353-375
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• 1998

This study is focused on the rules for resolving documentary credits disputes. First, International Chamber of Commerce published Documentary Credit Dispute Expertise Rules on October 1, 1997. The DOCDEX Rules are the International Chamber of Commerce(ICC) response to a clear call from the international banking community for a rapid, cost effective, expert-based dispute resolution mechanism for documentary credit practice, including bank-to-bank reimbursement issues. Next, The International Center for Letter of Credit Arbitration was established in September 1996. The Center was founded as a result of an initiative from within the letter of credit community and has been co-sponsored by the United States Council on International Banking(USCIB) and the Institute of International Banking Law and Practice Inc. In September, ICLOCA adopted its "Rules of Arbitration for Letter of Credit Disputes." Therefore, parties to letter of credit disputes should choose a appropriate dispute resolution mechanism under the circumstances in the future.

• International Commerce and Information Review
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• v.18 no.4
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• pp.221-262
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• 2016

This study examines the dispute resolution culture and negotiation strategy in Vietnam. We adopt area studies methodology in order to analyze dispute resolution and negotiation strategy in Vietnam, since the dispute resolution and negotiation strategy are keenly connected with the culture, law, institution, and economic system of the society. Our findings are as follows. First, Vietnamese society has the culture that has the characteristics of maternal society and patrilineal society. Vietnamese women has traditionally participated in the economic activity. Second, Vietnamese people showed loyalty to the nation. Third, Vietnamese society is shown to belong to the culture of collectivism. In addition, we investigate the multi-faced characteristics of Vietnamese dispute resolution culture and negotiation strategy. Our findings are as follows. First, Vietnamese people utilize middlemen in implementing dispute resolution and negotiation. Second, Vietnamese people prefer long-term negotiation style. Third, Vietnamese people is accustomed to face-saving culture. Fourth, Vietnamese people prefer the indirect communication style. Fifth, Vietnamese people prefer written document instead of oral agreement in contract. Sixth, Vietnamese people and firms prefer ADR to formal law.

• Journal of Arbitration Studies
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• v.14 no.2
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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.

• 중국학논총
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• no.72
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• pp.101-122
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• 2021

Over the past 20 years, labor standards have been widely used in free trade agreements. The U.S., the European Union and China have all aggressively signed free trade agreements with their trading partners, developing different styles on labor standards. According to the study, the implementation of the KOREa-EU FREE trade agreement has been hampered by ongoing disputes over the terms of the FREE trade agreement and the ILO since the korea-EU free trade agreement was signed. Because in order to break this deadlock, relevant scholars have done a lot of research, but mainly focused on the economic and trade field. Therefore, this paper for the first time systematically studies the substantive focus of disputes over FTA and ILO clauses, and carefully analyzes the domestic law amended by South Korea, and provides suggestions and inspirations for China by drawing lessons from the revision model of South Korea's domestic law. This is from a newperspective: the essence of the korea-EU FTA and ILO disputes is the conflict between international law and domestic law, and the conflict between free trade agreements and human rights protection. It holds that the essence of disputes should be sorted out from the perspective of legal principles and human rights protection, and the free trade and human rights protection should be actively coordinated. In order to make China more actively integrate into the international economy, China should adopt a positive attitude to revise and perfect its own laws, so as to realize the purpose of common development of international trade and human rights protection.

• Environmental and Resource Economics Review
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• v.13 no.3
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• pp.519-547
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• 2004

This paper analyze problems about scope of specific trade obligations(STOs), principle of dispute settlement procedure, and non-parties in context of the Cartagena Protocol on Biosafety(POB), which based on sub-paragraph 31(i) of DDA WTO Ministrial Declaration. The implications based on result of this study are as follows. First, to accept the wider scope of STOs under POB in Korea, importing country, won't be harmful to LMOs and Bioindustry. Instead, it will ensure a high level of biosafety concerning the import of LMOs. Exporters can take different kinds of trade measures to countervail adverse effect on the export of LMOs in this case. Therefore importer will endure the aftereffect. However, if korea were in exporter's place, to accept the wider scope STOs under POB will not have a good influence on the export of LMOs. Korea, therefore, should devise scheme for responding to debate about the STOs in MEAs, which have to be based on cost-benefit analysis and scenarios taking into account of speed and level in biotechology progress, status and trend of LMOs R&D and production, and condition of other industries. Second, it is not easy to agree with applying to what's rule between the POB and WTO for settlement dispute. Because there is the incompatibility between the POB characterized according to social rationality and WTO's rules for safety and environmental protection characterized according to scientific rationality. This issue have to be discussed for long period due to gap like that. Accordingly Korea, one of major LMOs importing countries, should suggest continuously that the effort is needed to ensure an adequate level of protection in transboundary movements of LMOs and scientific, environmental and socio-economic study. Third, in case of dispute between party and non-party of the POB, the duties under the WTO of non-party of the POB(if WTO member country) is valid. The country, therefore, will try to settle dispute based on WTO's rules. However, international society have to ensure for sound and safe use of LMOs in the field of transboundary movements. Accordingly Korea should devise scheme for preventing the possibility of dispute between party and non-party of the POB(if WTO member country), which is supported by policy options under the POB.

• 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.