• The Journal of the Institute of Internet, Broadcasting and Communication
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• v.22 no.3
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• pp.151-161
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• 2022

As Internet traffic surges due to global CPs, a request to share network investment costs has emerged in the industry. This has significantly changed the issue of the principle of network neutrality from accessibility to network fee. Some of the academic researchers had a negative view to network fees in the Internet space. However, in the industry, a number of disputes have occurred and some have escalated into court battles, and attention has been focused on the court's decision. The courts began to accept fee-for-service under network neutrality, and the government responded quickly by revising regulations. However, it still focuses on service stability, and there is no regulation that directly stipulates payment of network fee. In the study, changes in network neutrality were verified by analyzing cases of disputes between operators, court judgments, and improvement of regulations. And referring to the tragedy of the commons, the restoration of the correct price signal based on the principle of beneficiary pays was suggested as the most important solution. The payment of network fee by CP is one of the solutions.

• Korea Trade Review
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• v.41 no.3
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• pp.135-156
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• 2016

This study, with reference to data on economic conditions in Shandong Province, China, looked into trade and investment activities in Korea and major cities of Shandong - Qingdao, Yantai, Weihai and Jinan - and investigated claim cases between the two countries by type. In addition, we investigated the matter empirically by conducting a survey administered to 300 Korean companies investing in Shandong Province and, based on the data, tested hypotheses for inferential analysis. The findings are as follows: i) while hypotheses in which the size of a firm, represented by import and export volume, has a positive relation with the frequency of trade claim filings (H1) and with the financial value of the trade claims (H2) were quoted, company size proved to have a significantly negative relation with the time required to obtain a claim decision, which rejects the third hypothesis (H3) in which the relation was thought to be positive: ii) while products, as represented by the type of business, showed a clearly significant difference with the frequency of trade claim filings (H4) and with methods of preventing and responding to claims (H6), they did not show a significant link to the type of trade claim (H5). This study is a theoretical and empirical overview of Korean companies based in Shandong Province of China, and can be used to address the practical needs of the Korean companies looking to start business in Shandong Province.

• International Commerce and Information Review
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• v.14 no.4
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• pp.409-431
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• 2012

This article deals with the nature of ISDS along with the admissibility thereof, for the settlement of investment disputes between states and nationals of other states. ICSID as an organization of World Bank Group, has been established in 1966 and as of May in 2011, 157 nations ratified its convention. As for the Republic of Korea(ROK) it has been involved in the problematic situation with regard to ISDS of the KORUS FTA in negotiation with the United States. The ruling Grand National Party is pushing the FTA for ratification including ISDS. However, the opposition party, the Unified Democratic Party rejected the ISDS with a view to a toxin infringing on its judiciary sovereignty. The ROK has invested in the US 3.5 times more than the US did in Korea up to now. As a result, it seems that the ROK is more concerned about ISDS than the US is, considering that exhausting local remedy through the US local courts, applying even a municipal ordinance in their decisions which will be unsatisfactory toward the ROK side. The ROK is now struggling with the ISDS as a political issue between the ruling party and the opposition party mostly based on sovereignty with a reference on AUSFTA which excluded the ISDS. Australian model about ISDS has been impacted by the experience from the NAFTA which allowes direct claims against each other(the US against Canada and Canada against the US). It seems not to be much sympathy for developed countries because it has long been held to standards for pressing on developing countries. Australia is also struggling with ISDS from the political point of view likewise the ROK. And the ISDS is destined to the political situations established within the domestic countries among the political parties in relation with the acceptance or rejection of thereof.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.68
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• pp.89-121
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• 2015

Investor-State Dispute Settlement(ISDS) grants a foreign investor the right to access an international arbitrator, if he believes actions taken by a host government are in breach of commitments made in an investment agreement or an investment treaty. The arbitration procedure of ICSID is made specifically to resolve investment disputes, so most of investment disputes have been settled in accordance with the procedure. Owing to limitation of dispute settlements through the ICSID arbitration procedure, several investment dispute conciliation schemes have been emerged as alternatives. In the case of a conciliation, the conciliation procedure will be in progress based on arbitrary agreement between parties, and if both parties agree on a conciliation program, then the arbitrary execution rate is relatively higher than that of arbitration procedures. In addition, it is evaluated that the time duration of conducting a conciliation procedure is in general rather short in 8 to 24months, and its incumbent cost is also rather inexpensive. Most of all, through amicable settlement of a dispute between a foreign investor and a host state, the foreign investor may continue his investment activities without a hitch, while the host state may invite more investment without any risk of losing its external credibility. In conclusion, it is desirable to lead any investment dispute between a foreign investor and a host state settle in accordance with the dispute settlement procedure as specified in the relevant investment agreement. In addition, to make the foreign investor continue his investment activities, it will be necessary to provide a separate investment dispute conciliation system aside from such arbitration procedures to cope any unexpected incident flexibly.

• Journal of Arbitration Studies
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• v.17 no.2
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• pp.141-165
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• 2007

This study aims to make a contribution to the promotion of trade and economic development of South Korea, and, at the same time, call attention to the increasing trend of investment agreements concluded within Free Trade Agreements (FTA) by examining theoretically FTAs and dispute resolution and investigating systematically the conclusion procedure of agreements, and the system, institutions, and jurisdiction of dispute resolution, and presenting these findings to the government and investors involved. The most problematic aspect in the legal process of arbitration involving disputes over investment is that of arguments concerning the right of jurisdiction. When a dispute arises, even though an investor files for arbitration at an ICSID institution, the parties become involved in another energy-consuming argument even before proceeding to the hearing and decision of the original plan in cases in which the respondent of the dispute files an objection to the decision rights of the arbitral tribunal. As the main basis for this type of plea, the point of non-existence of jurisdiction is first raised where the applicable dispute does not fall under the range of investments defined in individual investment contracts or investment agreements such as a Bilateral Investment Treaty (BIT). To avoid an open-ended definition of investment for the range of investments, articles concerning investments in the FTA and NAFTA between Canada and the USA adopt the limited closed-list method. Article 96 of the FTA between Japan and Mexico applied the same abovementioned method of limited form of definition regarding range of investments and concluded BITs between member countries of APEC applied a similar method as well. Instead of employing the previously used inclusive definition, the BITs concluded between countries of Latin America and the USA are equipped with limited characteristics of an investment. Furthermore, to correspond with this necessary condition the three following requirements are needed : 1) fixed investment funding; 2) expected profits resulting from such investments; 3) and the existence of fixed risk bearing.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.123-156
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• 2004

Settlement of investment disputes is quite different from that of commercial disputes arising from ordinary commercial transactions in view of disputing parties, applicable laws and rules, etc.. Therefore, it is very important to consider the Convention on the Settlement of Investment Disputes between States and Nationals of Other States(Washington Convention) of 1965. The creation of the International Centre for Settlement of Investment Disputes(ICSID), which was established under the Washington Convention, was the belief that an institution specially designed to facilitate the settlement of investment disputes between governments and foreign investors could help to promote increased flows of international investment. Pursuant to the Washington Convention, ICSID provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. Recourse to ICSID conciliation and arbitration is entirely voluntary. However, once the parties have consented to arbitration under the Washington Convention, neither can unilaterally withdraw its consent. Moreover, all Contracting States of the Washington Convention are required by the Convention to recognize and enforce ICSID arbitral awards. Provisions on ICSID arbitration are commonly found in investment contracts between governments of member countries and investors from other member countries. Advance consents by governments to submit investment disputes to ICSID arbitration can also be found in many bilateral investment treaties including the Korea-China Agreement on the Encouragement and Reciprocal Protection of Investments(1992), the Korea-Japan Agreement for the Liberalization, Promotion and Protection of Investment(2003) and the Korea-Chile FTA, the latter was signed as of February 15, 2003 and is still pending in the National Assembly for its ratification. Arbitration under the auspices of ICSID is similarly one of the main mechanism for the settlement of investment disputes under the bilateral treaties on investment. Therefore, it is a problem of vital importance that Korean parties interested in investment to foreign countries should understand and cope with the settlement mechanism of investment disputes under the Washington Convention and bilateral investment treaties.

• Journal of Arbitration Studies
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• v.25 no.2
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• pp.71-96
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• 2015

This paper deals with the annulment of the ICSID(International Centre for Settlement of Investment Disputes) arbitral award. The annulment of the ICSID is characterized by the fact that it can be made possible through the special committee of ICSID only. The annulment of the ICSID was constructed on the premise that it is not an appeal procedure. However in the initial period, it was strongly criticized as it allowed new trials or duplicated many of the functions of an appeal and it broke down the boundary between the two systems. Although the trend seemed to be corrected through its 2nd and 3rd generations, it was still criticized for functioning as a new trial. It is approaching its 4th generation. On the other hand, with the activation of investment agreement arbitration based on ICSID and FTA, a certain degree of consistency is required for the ICSID arbitralaward. Also, with the emphasis on the public features of the arbitration for the investment agreement, the necessity of an appeal system is presented. The ICSID Secretariat published the "Opinion on the Appeal Procedure" in 2004 but as the system was criticized as too early due to the cost allocation problem and others, its adoption of an appeal procedure has been delayed. This paper focuses on how the currently incomplete ICSID arbitration judgment annulment system shall be used. Although it is still hardto expect the quality and consistent arbitral award annulment in the ICSID, this paper suggests that the "annulment without the actual new trial" using the restricted authority of a special commission in a creative way shall be pursued rather than just the actual new trial with or without annulment, thus going back to the original concept of the ICSID arbitral award annulment.

• Journal of Arbitration Studies
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• v.24 no.4
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• pp.3-28
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• 2014

This article examines the Annulment Mechanism of arbitral awards rendered under the auspices of the International Centre for Settlement of Investment Disputes (ICSID). The primary feature in the ICSID and non-ICSID arbitration regarding the review of awards involves the unified nature of the ICSID system, as compared to the scattered and multi-layered system of review existing under arbitration rules, national legislation, and international convention. This unity can be perceived at different levels. The ICSID annulment mechanism entails only a set of rules; thus, only one set of application standards of review will be implemented, as opposed to sometimes conflicting layers of application rules, laws, and convention, as in the case of non-ICSID arbitration. However, some of the recent annulment decisions have raised serious questions about the breadth of annulment in practice, as opposed to its original design. Nonetheless, implementing a new system under the ICSID awards to be reviewed by an appellate court appears to create more problems than it solves. The potential impact of introducing that mechanism could result in a longer and more complex proceeding, with uncertain benefits.

• Journal of Arbitration Studies
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• v.28 no.1
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• pp.3-26
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• 2018

This article examines whether parties may agree to contractually waive the right to bring annulment proceedings. Alternately it looks at whether certain grounds of annulment may be waived. The ability for parties to resolve this issue contractually by waiving this element of Article 52(1)(b) ICSID offers a potentially powerful solution. For parties to agree beforehand to the circumstances where tribunals have not 'manifestly exceeded their power' could allow them to remove the unpredictability of annulment on this foundation. Even in the event that an ad hoc committee is against the validity of waiver, it may be possible for a party to frame this restriction as an interpretative agreement by the parties rather than strictly as waiver of a ground of annulment. Ultimately, the wish to enter into such an agreement would likely only be driven by a few exceptional commercial need or prior negative experience with the remedy of annulment. In that cases, and depending on the nature of the specific concern with annulment, a limited waiver or interpretative agreement on certain Article 52(1) ICSID grounds may certainly be appropriate.

• 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.