• 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.

• 정보화사회
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• s.121
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• pp.57-61
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• 1998

서비스에 대한 국제무역이 상당히 활발하다. 이것은 세계경제 자체가 옛날의 산업사회에서 고도산업사회로 넘어가고, 외국인 투자가 활발하게 이루어지고 있기 때문에 서비스에 관한 국가간의 거래에 대한 룰을 만들어서 물에 따라서 국제계획이 활발하게 되고 분쟁이 있는 경우에 일방적으로 한 국가가 독점하지 않고, 모든 국가가 의뢰할 수 있는 분쟁해결장치를 만들자는 의도를 가지고 시작된 것이 우루과이라운드 협상이었고, 그 가운데 서비스 협정이 만들어진 것이다.

• Journal of Arbitration Studies
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• v.22 no.3
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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.

• International Area Studies Review
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• v.17 no.4
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• pp.43-63
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• 2013

This paper investigates the impact of free trade agreement (FTA) on the performance of Korea's foreign direct investment (FDI) firms. We use plant- and firm-level data to examine the trends of FDI patterns of Korean firms between 2002 and 2010 by dividing firms based on their sizes - large and small firms. Analyzing firms' FDI activities worldwide, we find that small firms account for large share of investment cases especially in countries where FTA became effective with Korea during our sample period. Using these facts, we estimate the changes of productivity and performance of large and small firms and their foreign affiliates before and after FTA became effective. Our results show that FTA increases productivity of small firms and their foreign affiliates after its formation. In particular, we provide evidence that productivity improvement by small firms and their foreign affiliates may result from an increase in production and capital during FTA period.

• 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.

• Journal of Biosystems Engineering
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• v.21 no.2
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• pp.233-241
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• 1996

1) WTO 체제의 정착과 새로운 국제무역질서의 형성 1995년 1월 신 GATT체제라 할 수 있는 WTO가 정식 출범함으로써 새로운 국제무역질서의 기반을 구축하게 되었다. 즉, WTO의 출범으로 세계 경제는 하나의 교역규범 (WTO협정)과 하나의 국제기구 (WTO)를 갖게 되었으며, 이에 따라 지난 1980년대 이후 팽배해 온 세계무역의 신보호무역주의 경향은 다시금 자유무역주의로 복귀되었다. 이러한 WTO출범에 따른 세계자유무역의 확대는 기업의 해외직접투자를 증대시키고 세계경제의 안정성장에 크게 이바지할 것으로 기대된다. (중략)

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.57
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• pp.61-78
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• 2013

The purpose of this study is to clarify the standard of fair and equitable treatment. Although most international investment treaties prescribe fair and equitable treatment that is the obligation to provide fair and equitable treatment to foreign investor, there is no clear definition and specific elements of fair and equitable treatment. Through the arbitral award cases we can find that tribunals have interpreted to include six principles; Due process & Protection from denial of justice, Good faith, Reasonableness & Nondiscrimination, Compliance with contractual obligation, Full protection and security, Transparency & Protection of the investor's legitimate expectations. This study suggest that host countries and investors focus on international trends concerning investment disputes in order to avoid future disputes. So future disputes can be prevented and prepared in advance.

• Proceedings of the Korea Information Processing Society Conference
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• 2010.11a
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• pp.132-135
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• 2010

FTA(Free Trade Agreement)는 체결국들의 자유로운 물자 이동을 기반으로 무역의 활성화와 외국자본의 직접투자를 통해 경제성장을 가져오는 중요한 협정이다. 그러나 FTA 협정의 체결조건에 따라 품목별 세율 등의 정보가 달라진다. 국제통일상품분류체계(Harmonized Commodity Description and Coding System)코드도 마찬가지로 국제 공동코드 영역인 6 자리까지 동일 하나, 7 ~ 10 자리까지는 각 국가에 의해 운영관리 되어, 국가별로 품목분류 방식이 달라진다. 또한, 품목분류코드가 갱신 될 때마다 연관 정보를 사용자에게 제공하고 있다. 그러나 우리나라와 FTA 체결국간 세부품목분류 방식이 달라 품목분류방식의 의미에 따라 담당자가 한 건씩 비교하고 맵핑하여, 많은 시간과 인력이 소모된다. 따라서, 의미를 갖는 품목분류코드를 맵핑하면서 발생하는 문제들이 있다. 이를 해결하기 위해, 이 논문에서는 품목분류코드 기반의 온톨로지 모델을 제안한다.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.313-328
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• 2013

Today FTA extends over the world and Korea as a main member of international trade is no exception. In the past Korea, as the developing countries, has made endlessly effort to induce foreign investment from foreign enterprise and/or government to be a truly OECD countries today and made it. Korea's trade economy was reached 1 trillion dollars in 2012. Now we have to find a new way to produce, process, procure goods from foreign investment and also need to protect our profit and/or rights within foreign judicial territory. There are two method to protect foreign enterprise or government. First they rely on general principles in WTO or Bilateral Investment Treaty that the principle of equality, national treatment, and most-favored-nation treatment, you can create a predictable environment to protect foreign enterprise and/or government. Second they need to incorporate contractual clauses in their agreement such as stabilization clause, force majeure, arbitration, governing law or sovereign immunity. Of course there are many things left behind to consider I hope it will be helpful to those who prepare foreign investment contract.

• Journal of Arbitration Studies
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• v.29 no.2
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• pp.35-63
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• 2019

Since imposing Performance Requirements (PRs) on investors have been conducted as a means to protect a host state's domestic industry in the short run, with its effect on improving the international balance of payments, it has been implemented mostly in developing countries. From the viewpoint of investors, however, PRs hinder free competition and investment activities and have the effect of distorting international trade activities; therefore, they are expected to bring detrimental effects on the host state's economic development in the long run. PRs provided by International Investment Agreements (IIAs) and WTO-TRIMs, too, included many abstract regulations which are grounded on the host state's economic efficiency in the past; however, those PRs are gradually being more concretely specified, shifting to a form of prohibition with the goals of increasing the protection on investors and realizing investment liberalization. Accordingly, when Korea freshly concludes IIAs or revises them afterwards, one should focus more on following the points regarding PRs. First, to protect Korean companies' investment activities, it is advantageous to list the contents of prohibited PRs extensively and concretely and create a stipulation. Second, it is necessary to list the contents of the PRs prohibited and add the phrases for prohibiting "any other similar requirements" explicitly, as well so as to cover the PRs that can appear newly. Third, as in the cases associated with PRs, issuable matters are mostly either the range of applying PRs or the conditions of applying them (relevance or detrimental effects); therefore, it is necessary to classify the cases accumulated by issues and analyze them thoroughly. In conclusion, as this study has analyzed the theoretical characteristics of PRs provided in IIAs and related cases and suggests exquisite theory regarding PRs, it not only lays fundamental grounds for follow-up research but also gives useful and practical guidelines for the parties concerned and the arbitrators according to the ISDS procedure.