• Title/Summary/Keyword: Chinese Investment Treaty

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A Study on the Resolution Mechanism for Dispute between Investor and State in China (중국의 투자자-국가 간 분쟁 해결제도에 관한 연구)

  • Ha, Hyun-Soo
    • Journal of Arbitration Studies
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    • v.23 no.4
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    • pp.29-53
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    • 2013
  • Chinese ISD has been changed a lot since the reformation policy in 1978 and it is expected that China will present a changed attitude toward its advantage as its industrialization continues to advance. This study generally examines the ISD in BIT and also considers not only the attitude of China with regard to ISD but also the changes on the Chinese side. Moreover, this study determines the areas on which the Chinese government focuses. In order to conduct this study, the author attempts to classify the attitudes on ISD into chronical change and treaty powers based on the analysis of BIT. In addition, the paper examines the main contents of ISD in BIT which previously involved an agreement such as arbitral institution, arbitral range, counter-measures of local country, standard for admitting the nationality of corporate investors, and recognition and enforcement of arbitral award. Based on analysis, this paper mentions matters that require attention and caution in the Korea-China FTA as regards investment negotiation, and also suggests instructions for investors who may face dispute with the Chinese government.

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A Study on the Availability of Chinese Internal Arbitration Institution by the Company invested from Korea (중국 투자기업의 중국 국내중재기구 이용 가능성에 관한 연구)

  • Yoon, Jin-Ki
    • Journal of Arbitration Studies
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    • v.24 no.4
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    • pp.49-97
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    • 2014
  • This study is about the availability of Chinese internal arbitration institutions by Korean invested companies. Generally, Chinese internal arbitration institutions lack independence from government. However, because parties seeking an arbitration award have ways to get neutrality from internal arbitration institutions that guarantee party autonomy, these Korean companies can use Chinese internal arbitration institutions to resolve disputes in China. Special attention should be given to the following. First, because Korean companies invested in China are legally in the same position as Chinese companies, unless foreign-related factors intervene, when disputes occur with Chinese companies or individuals, the disputes correspond to internal dispute, and when it comes to choosing the arbitration institution, these Korean companies must choose either a Chinese internal arbitration institution or foreign-related arbitration institution. Second, most Chinese internal arbitration institutions still lack independence from government, which can influence the fairness of arbitration in the future. Therefore, Korean companies invested in China should think about alternative ways to get a minimum impartiality in arbitration cases. Third, the parties are allowed to choose arbitration rules freely in Beijing, Xian, Chongqing, Guangzhou, and Hangzhou arbitration commissions. Therefore, in arbitration cases, the parties can get impartiality by choosing arbitrators according to the arbitration rules which they agree on, or by choosing partially modified arbitration rules of those arbitration commissions. Fourth, in order to get an impartial arbitration award from Chinese internal arbitration institutions in China, it is important for Korean lawyers or arbitration experts -- fluent in Chinese -- to be registered in the List of Arbitrators of Chinese internal arbitration institution by way of signing a MOU between the Korean Commercial Arbitration Board, or the Korean Association of Arbitration Studies and arbitration commissions such as those of Beijing, Xian, Chongqing, Guangzhou, and Hangzhou which comparatively do guarantee party autonomy. Fifth, because application of the preservation of property before application of arbitration is not approved in China, in practice, in order to preserve property before application of arbitration, it is best to file another suit in China based on other legal issue (e.g., tort) independent from the contract which an arbitration agreement is applied to. Sixth, in arbitration commissions which allow different agreement regarding arbitration procedures or arbitration rules, it is possible to choose a neutral arbitrator from a third country as a presiding arbitrator via UNCITRAL arbitration rules or ICC arbitration rules. Seventh, in the case of Chinese internal arbitral award, because the court reviews the substantive matters to decide the refusal of compulsory execution, the execution rate could be relatively lower than that of foreign-related cases. Therefore, when Korean companies invested in China use Chinese internal arbitration institution, they should endure low rate of execution. Eighth, considering the operational experiences of public policy on foreign-related arbitration awards so far, in cases of Chinese internal arbitration award, the possibility of cancellation of arbitral award or the possibility to refuse to execute the award due to public policy is thought to be higher than that of foreign arbitral awards. Ninth, even though a treaty on judicial assistance in civil and commercial matters has been signed between Korea and China, and it includes a provision on acknowledgement and enforcement of arbitral award, when trying to resolve disputes through Chinese internal arbitration institution, the treaty would not be a big help to resolve the disputes, because the disputes between Korean companies invested in China and the party in China are not subject to the treaty. Tenth, considering recent tendency of conciliation by the arbitral tribunal in China and the voluntary execution rate of the parties, the system of conciliation by the arbitral tribunal is expected to affect as a positive factor the Korean companies that use Chinese internal arbitration institution. Finally, when using online arbitration, arbitration fees can be reduced, and if the arbitration commissions guaranteeing party autonomy have online arbitration system, the possibility of getting impartial arbitration award through them is higher. Therefore, the use of online arbitration system is recommended.

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The Present Condition of Korea, China and Japan in Automobile Industry & the Economic Cooperation (한.중.일 자동차 산업의 현황 및 경제협력)

  • 김동기;신용하
    • Journal of Korean Society of Industrial and Systems Engineering
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    • v.26 no.3
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    • pp.10-17
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    • 2003
  • Under the sudden change of competitive environment, the economic cooperation as a part of survival strategy is being a big issue among countries. There was much discussion based on the geological adjacency as well as cultural homogeneity regarding the economic cooperation of three countries, Korea, China, Japan. It has been also known that major trade countries of the world concluded the treaty of region trade, then extended the number of export, and drew a success in foreign direct investment. It can be considered that Korea will play a major role in the three countries' automobile industry based on Japanese demonstrated technology, Chinese resources, market and experience with their economic cooperation. Therefore it is expected that a big result will be achieved throughout such a role play of each country. This paper has a purpose to light up the distinctive quality and the present condition of each country in automobile industry, and to promote the foundation of three countries' economic cooperation. It is convinced that the economic cooperation of three countries, Korea, China and Japan in automobile industry, will play a great role in the world automobile market.

The Economic Cooperation of Korea, China and Japan & the Advance to China in Automobile industry. (한중일 경제협력과 자동차 산업의 중국 진출방향)

  • Kim dong-ki;Shin yong ha
    • Proceedings of the Society of Korea Industrial and System Engineering Conference
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    • 2002.05a
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    • pp.217-226
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    • 2002
  • Under the sudden change of competitive environment, the economic cooperation as a part of survival strategy is being a big issue among countries. There was much discussion based on the geological adjacency as well as cultural homogeneity regarding the economic cooperation of three countries, Korea, China, Japan. It has been also known that major trade countries of the world concluded the treaty of region trade, then extended the number of export, and drew a success in foreign direct investment. Resent automobile industry is being ran by the center of America, Europe and Japan. Korea only has a successful experience of restoration of automobile industry in the half of a century after his beginning. It is true that China is trying to do best to raise his automobile industry. Also Japan is a leading automobile country guiding automobile industry all over the world. It can be considered that Korea will play a major role in the three countries' automobile industry based on Japanese demonstrated technology, Chinese resources, market and experience with their economic cooperation. Therefore it is expected that a big result will be achieved throughout such a role play of each country. This paper has a purpose to light up the distinctive quality and the present condition of each country in automobile Industry, and to promote the foundation of three countries' economic cooperation. It is convinced that the economic cooperation of three countries, Korea, China and Japan in automobile industry, will play a great role in the world automobile market.

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