• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• 제44권
• /
• pp.239-255
• /
• 2009

The purpose of this article is to examine the Utilization of Umbrella Clauses in Investor-State Contract Disputes. To accomplish the purpose, this article analyzes the ICSID case of SGS v. Pakistan and SGS v. Philippines. Umbrella clauses have become a regular feature of international investment agreements and have been included to provide additional protection to investors by covering the contractual obligations in investment agreements between host countries and foreign investors. In particular, two recent ICSID decisions, SGS v. Pakistan and SGS v. Philippines, have brought to the forefront the question of whether the umbrella clause applies to obligations arising under otherwise independent investment contracts between the investor and the host State. In focusing on the SGS decisions, this article will give some useful guidelines to Government and Academia under currently prevailing environment of the Free Trade Agreement("FTA") in Korea.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• 제27권
• /
• pp.3-28
• /
• 2005

It is common that several kind of claims between the parties are arising in carrying out international construction works. Therefore, it is very important for them to settle the claims effectively in order to get expected profits and purposes in international construction works. In this article, the author have studied on the procedures and contents on the settlement of claims between the parties based on the FIDIC contracts for major works which are newly prepared in 1999 by FIDIC. Especially, the arbitration clause in the FIDIC contracts for major works attempts to deal with a number of complex contractual and legal matters, sometimes in a very harsh way, e.g. by cutting off a party's rights. It has never been an easy clause to understand or to observe. Nevertheless, the author hopes he has been able in this article to clarify for the reader some of the issues raised by it. I'd like to suggest that our overseas construction companies refer to the FIDIC contracts for major works(especially article 20 : claims, disputes and arbitration) directly or indirectly for their contract of international construction works with overseas employers.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• 제63권
• /
• pp.89-110
• /
• 2014

Since the CISG came into force in 1 January 1988 in China, many cases as well as arbitral awards have been decided under the CISG during the period of about 30 years of its application in China. After the CISG entered into force and before the handovers of HK in 1997, the China courts or CIETAC applied CISG to the disputes between China party and HK party in many cases, even PRC reserved CISG article 95. On the Contrary, after the handovers of HK in 1997, the China courts or CIETAC did not apply CISG to the disputes between them in many cases with the reason that China filed an CISG article 95 declaration and HK is not a contracting unit. The matter is the China's contract law and civil law have convinced that the CISG is highly applicable as "International Practice" under the China law in appropriate circumstances, so sometimes China courts or CIETAC applied CISG based on the China law not CISG itself. As a result, some interpretation made by the China court or CIETAC might not comply with the international character of the CISG and to some extent even impaired the uniform application of the CISG. So the author expects more and more valuable cases to be reported which will be good for its further development.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• 제45권
• /
• pp.111-136
• /
• 2010

Bill of lading means the transport document ("marine", "ocean" or "port-to-port" or similar), however named, covering sea shipment only. Data in a bill of lading, when read in context with the credit, the document itself and international standard banking practice, need not be identical to, but must not conflict with, data in that document, any other stipulated document or the credit, according to UCP 600 and ISBP. This article has provided the general guideline of the discrepancies on the basis of UCP 600, ISBP 681 and the ICC Banking Commission Opinions, for the solution of the unpaid problems of the credit transactions. I have studied especially the ICC Banking Commission Opinions and the DOCDEX Decisions on the bill of lading after UCP 600, the international standard banking practice (ISBP 681), and the recent Korean cases. As such, this article would fill a need gap in the market between the general principles in the UCP provisions and the daily job of the practitioner. The credit practitioners are suggested to this resulting guidance whenever doubts arise as to how to check the credit documents in daily practice.

• Korea Trade Review
• /
• 제44권6호
• /
• pp.119-134
• /
• 2019

This study focuses on a recent WTO SPS dispute related to Korea Import Bans and Testing and Certification Requirements for Radionuclides (DS495) in order to learn from the case and take proactive measures to prevent potential import restrictions by Japan on Korean seafood. Korean-Radionuclides (Japan) emphasizes the importance of sufficient scientific evidence, especially scientific information from relevant international organizations, in an effort to take preventive measures towards Japan's restrictions on Korean seafood imports. Japan claims that a novel parasite, Kudoa septempuctata, in Korean flatfish causes food poisoning. As food poisoning is a serious concern, there is a low possibility that Japan's enhanced monitoring measures would be more trade restrictive than required as prescribed in Article 5.6 of the WTO SPS Agreement. In addition, Korea is the biggest exporter of olive flounder to Japan. Hence, the possibility that similar conditions could be established is low in relation to non-discriminatory principles under the WTO SPS Agreement. Accordingly, we should collect relevant scientific evidence, improve domestic sanitary management of fishery products, and seek export diversification so that we prepare for potential import restrictions by Japan and minimize implications.

• Journal of Korea Game Society
• /
• 제21권4호
• /
• pp.13-24
• /
• 2021

Recently, amendments to the e-Sports Act have been proposed in the Korea National Assembly. To evaluate the amendments, this study provided five factors of the e-sports industry: the high accessibility, the instability of the game, the difficulty of professional e-sports players, the fierce competition, and the lack of government policy. Based on these factors, this study suggested improvement in which the e-Sports Act should proceed for professional e-sports players, e-sports teams, and e-sports establishments.

• Journal of Arbitration Studies
• /
• 제34권2호
• /
• pp.27-44
• /
• 2024

The lack of consistency and predictability of arbitral awards in the Investor-State Dispute Settlement ("ISDS") mechanism has long been a subject of criticism. In international investment disputes, arbitral tribunals have frequently come up with different interpretations and results on similar investment agreement provisions. The arbitral tribunal's inconsistent decisions raised concerns not only among the parties to the investment dispute but also amongthe arbitral tribunals in other cases, which ultimately led to legal inconsistencies in international investment law. Arbitration awards may have some degree of disagreement in interpretation. However, the systemic inconsistencies that pervade ISDS risk undermining the purpose of the investment agreement system, which is to provide a predictable and stable framework to protect andpromote foreign investment while maintaining a balance with host state regulations. Therefore, this study proposes a plan to resolve this discrepancy and review standards for practical application. Reform of the ISDS mechanism could be a viable option to reduce, to some extent, the inconsistencies in interpretation, if not completely eliminate them. Reforms such as establishingguidelines, promoting cooperation between arbitral tribunals, and codifying the norms of the agreement can provide a means of reducing interpretive inconsistencies and strengthening the legitimacy of the ISDS mechanism. Reforming the ISDS mechanism will require all stakeholders to carefully consider the issues and the scope, nature, and feasibility of eachpotential reform.

• Journal of the Korean Solar Energy Society
• /
• 제39권6호
• /
• pp.1-13
• /
• 2019

With the adoption of the Paris Agreement, a new climate regime is intensifying the global interest in reducing greenhouse gas emissions. In the meantime, Korea is preparing to introduce a new renewable energy carbon certification system in order to activate the use of renewable energy and to reduce carbon emissions in the entire life cycle of manufacturing and disposal of renewable energy facilities. Therefore, this study aims to identify the implications for the introduction of the carbon certification system and to establish a theoretical basis for the system design by examining the status of overseas carbon certification, international trade norms and trade disputes. As a result, carbon emissions certification is being implemented in developed countries such as EU, UK, France, USA and Japan, but only France, Germany and EU have adopted carbon certification for renewable energy sector. The analysis of the WTO TBT Agreement and GATT also confirmed the possibility of a violation of the international trade rules of the carbon certification system and derived nine international technical standards related to carbon certification. Finally, by examining the case of trade disputes related to environmental labeling, the minimum requirements to be considered at the institutional design stage were drawn to eliminate the possibility of trade disputes.

• Korea Trade Review
• /
• 제43권3호
• /
• pp.199-218
• /
• 2018

The force majeure in the international sale of goods has been widely used regarding liability and settlement of disputes in the event of breach of contract due to circumstances beyond the control of the parties. The purpose of this study is to examine the judgment criteria and cases concerning on force majeure in the application of FTA preferential tariffs. In order to achieve this purpose, this paper uses a literature review and case analysis on exceptional circumstances under the Korea·ASEAN FTA and the Korea·EU FTA. This study, this paper provides several implications for companies seeking preferential tariffs regarding the Korea·ASEAN FTA and the Korea·EU FTA. Korean companies are subject to the following: confirm the denial article of FTA preferential tariffs stipulated in the Korea·ASEAN FTA and the Korea·EU FTA, consider the judgment criteria on exceptional circumstances of customs authorities, confirm the extension criteria on the validity period of certificate of origin, confirm the reply criteria of verification result of the customs authorities of the exporting country, and confirm the violation of the principle of good faith for unrequested action on reply of verification result of customs authorities.

• Korea Trade Review
• /
• 제48권4호
• /
• pp.169-188
• /
• 2023

The increase in assertive and unilateral measures represents a key feature of the recent global trade environment. Against this backdrop, the EU is pushing to introduce the so-called "anti-coercion instrument(the instrument)," which aims to allow unilateral countermeasures in the event of economic coercion or threats from third countries. This paper examines the recent assertive trade environment and the legislative background of the instrument. It evaluated the necessity of and concerns arising from the instrument by comparing the existing EU trade policy, i.e., Trade Barrier Regulation (TBR). In addition, the paper aims to analyze the permissibility of the instrument under the WTO system, especially in the context of the principle of "strengthening of the multilateral system." Finally, the paper draws implications of the instrument in terms of our domestic policies that can effectively address economic threats or trade friction in the growing geopolitical crisis.