• 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.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.

• 한국벤처창업학회:학술대회논문집
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• 2023.04a
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• pp.39-44
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• 2023

우리나라에서는 벤처생태계의 구성이 태생적으로 정부 주도로 법제화된 정부자금의 지원이 기초가 되어 이루어지면서 공적 자금의 정책적 목적에 따라 운영되어왔다. 따라서 벤처투자기구에 대해서 이해상충 가능성 배제, 고도의 윤리성, 공정성 및 투명성 등을 요구하는 등 강한 규제가 반영되게 되었다. 이러한 공적규제가 일면 타당성이 있을 수 있으나, 공적규제 위주의 관리감독 체계는 규제의 영향을 크게 받는 한국 벤처투자 시장의 성격상 민간자금의 유입을 제한할 수 있다. 민간 중심의 벤처투자 시장으로 전환하기 위해서는 공적규제를 강화하기보다는 자율규제 영역을 확대하여 업계의 전문성과 효율성에 친화적인 규제 환경을 조성할 필요가 있다. 따라서 본 연구에서는 벤처투자 시장의 자율규제 가능 영역을 살펴보고, 벤처투자기구의 운용사 관점에서의 자율규제 방안을 제시하였다. 구체적 방안 중 하나로는 출자자 사이의 자치적 규범이라고 할 수 있는 규약의 표준이 참여자의 전문적인 식견을 최대한 반영하여 마련된 것이므로, 펀드 결성 이후 출자자 사이의 규약을 둘러싼 분쟁이 발생하는 경우 이를 자율적으로 해결할 수 있는 1차적인 분쟁 조정 절차를 마련해 볼 수 있다.

• Journal of Arbitration Studies
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• v.7 no.1
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• pp.447-469
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• 1997

• International Commerce and Information Review
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• v.14 no.3
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• pp.49-73
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• 2012

India is a gigantic market with a population of 1.2 billion and an economy that is growing at the second-fastest pace in the world. The volume of trade between India and Korea has been sharply increased with the increase of dispute since 2000. Although avoidance of disputes is always a priority, it is also important to prepare methods of dispute resolution which are efficient and economical. So, understanding of Indian dispute resolution system is a necessary requirement for successful business operation with Indian companies. This article analyzed and compared with the various ways of Indian ADR such as negotiation, mediation, conciliation, Lok Adalat and arbitration in order to help the Korean traders who enter into business with the Indian companies to settle their disputes efficiently. In conclusion, this article suggests the following ways to overcome problems of dispute with Indian companies: First, the Korean companies should recognize the characteristics of Indian ADR Ways respectively. Second, the Korean companies should utilize the conciliation or the mediation in small claim but arbitration in large claim. Third, Write a contract and insert the KCAB's standard arbitration clause in their contract.

• 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.

• 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.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.71
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• pp.195-216
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• 2016

In determining the content of the FET standard, the tribunals stated protection of investor's legitimate expectations, due process and denial of justice, transparency, discrimination and arbitrariness, good faith, etc. The most major elements of the FET standard is the protection of the investor's legitimate and reasonable expectations. It is necessary to consider whether it is possible to what the expectations of investors are protected as legitimate and it is formed under any circumstances. If host state frustrate investor's legitimate expectations, it found a breach of the FET. The host state's specific assurance may reinforce investor's expectations, but such explicit statement is not always necessary. The host state must preserve a stable environment for investments. However, It must not be understood as the inalterability of the host state's legal framework. It implies that the host state's subsequent changes should be made consistently and predictably. The host state is entitled to exercise a reasonable regulatory authority to respond to changing circumstances in the public purpose. Therefore, whether the violation FET shall be determined through a balanced against the investor's legitimate expectations and the host state's reasonable regulatory exercise in the public interest. And investor should keep in mind that the principle of proportionality is applied unless host state provides stabilization clause or similar commitments to investor. Also host state should establish the basis of an argument about reasonable regulatory authority for public interest.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.59
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• pp.59-78
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• 2013

The interpretation and application of investment treaties takes place mostly by ad hoc tribunals. Their composition varies from case to case. But in interpreting and applying investment treaties are bound to exist on a ground rule and coherent criteria. Given summarizing contents of this study, those are as follows. When interpreting investment treaties, (i) most tribunals is based on Article 31 and 32 of the VCLT, (ii) tribunals rely on previous decisions, (iii) tribunals resort to travaux pr$\acute{e}$paratoires, (iv) tribunals consider the interpretative statement. When applying investment treaties, (i) treaties apply only in relation to acts or events that occurred after their entry into force, (ii) tribunals have applied different inter-temporal rules to jurisdictional clauses and substantive provisions in treaties, (iii) the relevant date for purposes of jurisdiction is the date of the institution of proceedings, (iv) Under the ICSID convention, the host state and investor's nationality must be a party to the convention on the date the proceedings are instituted. This study is expected to possibly become guideline in the interpretation and application standards of investment treaties. So future disputes can be prevented and prepared in advance.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.68
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• pp.123-148
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• 2015

Central Asian Countries had been independent in 1991 from USSR. Since then it have been increasing foreign trade and investment amount with outside countries including China, Japan, EU and South Korea. Korean enterprises and entities have endeavored to secure plentiful natural resources, oil and gas energy and expand the market share to exporting the consuming and industrial competitive goods and services for those countries. In the case of disputes of commercial transactions and investment, arbitration is regarded as a dispute resolution system which has been preferred in international transactions and investments by the business world. Since the collapse of the USSR, Central Asian Countries have worked to modernize its arbitration law and procedure to conform with international standard rules. Arbitral legislation in Central Asian countries is based on the Model Law as adopted in 1985. However, CIS's legislation systems of arbitration are not satisfied with the international standard in national laws and practices. That is the reason to consider for the specific parliament about arbitration for the dispute resolutions in the commercial transaction and investment between Korean enterprises and CIS. In this article, it is discuss problems and its alternatives in the dispute resolution about the commercial transaction and investment into Central Asian countries including the tendency to the increasing the trade volumes of goods and investment between South Korea and CIS. According to this article, South Korea consider the long term strategy followed the preferred economic relative partnership for business success on commercial transaction and investment with the Central Asian Countries.