• The Korean Journal of Air & Space Law and Policy
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• v.25 no.1
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• pp.159-203
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• 2010

Together with the development of space science outer space law has become one of the most rapidly developing branches of international law. This reflects a general realization that these new activities must be subject to reasonable legal regulation if they are to serve the peaceful purposes of mankind without undue confusion and disorder. The exploration and use of outer space introduces many novel opportunities and dilemmas, and inspired insights are needed in the development of this new resource. In particular, the settlement of space law disputes is a relatively new discussion in international law. However, the significance of the settlement of space law disputes was acknowledged in various colloquia organized by legal academicians and practitioners around the world. Analysis of the dispute settlement provisions in space agreements plainly reveals the degree to which States persist to be mistrustful of any impingement to their sovereignty. They are reluctant to submit disputes to adjudication and binding arbitration, particularly when these provisions are negotiated between States which have dissimilar political, economic and social interests and demography. However, there is a slow but clear shift in this attitude as States realize the contemporary political, economic and technical pressures necessitating the lifting of the veil of State sovereignty. The development of an effective mechanism for the settlement of disputes arising in relation to the development of the exploration and exploitation of outer space has been the subject of global study by highly qualified publicists and international institutions. The 1972 Liability Convention is the space treaty with the most elaborate provisions for dispute settlement. However, it fails to ensure binding decisions. In this point, the 1998 Taipei Final Draft Convention may be a useful instrument for further consideration on whether an independent sectorialized dispute settlement mechanism should be established. Considering these circumstances it seemed essential to take legislative action to implement a system as comprehensive as the relevant legal framework are in the Law of the Sea and International Criminal Law mechanisms for dispute settlement and conflict avoidance from outer space activities.

• The Journal of Fisheries Business Administration
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• v.48 no.3
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• pp.15-32
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• 2017

This article's aim is to review the jurisprudence which has emerged pursuant to the international dispute settlement provisions and to provide a provisional expectation as to the future of international dispute settlement under "UNCLOS". Globally, marine fisheries play an important role in ocean biodiversity and the food security of millions of people, providing a vital source of high-quality dietary protein and supporting individuals' livelihoods and income. In the 1982 Convention, the establishment of co-operative mechanisms for effective monitoring, control, surveillance and enforcement, decision-making procedures facilitating the adoption of such measures of conservation and management, and the promotion of the peaceful settlement of disputes are called for. In this study, 'Northeast Asian Sea' means that the Yellow/East China Sea, the East Sea, the Ohotsk Sea, the Kamchaka Sea, the Alaska Sea, and the Bering Sea surrounded by Korea, China, Japan, Russia, U.S.A. and Canada including their EEZs. There are several bilateral fisheries agreements existing in Northeast Asian area, the Fisheries Agreement between Republic Korea and Japan, between Republic of Korea and China, between China and Japan, between Republic Korea and U.S.A., between Republic Korea and Russia, between Russia and Japan, And there are several regional fisheries organizations existing in Northeast Asian area, for example NPAFC(Convention for the Conservation of Anadromous Stocks in the North Pacific Ocean), CBSPC (Convention on the Central Bering Sea Pollack Conservation), PICES(North Pacific Marine Science Organization), NPFC(North Pacific Fishery Commi-ssion) etc. It analyzed the proliferation of bilateral treaties and multilateral treaties due to the adoption of the EEZ in Northeast Asia reviewed the strengthening of management rights on the high seas marine living resources and marine environment preservation of regional fisheries organizations. In view of the changes in the international fisheries mechanism this paper suggested the future direction of the country in overseas fisheries. We concluded as follows. We shall apply bilateral treaties first, regional fisheries organizations' treaties secondly, and provisions under "UNCLOS" for dispute settlement last.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.3-46
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• 2004

To realize the spirit of the South-North Joint Declaration of June 15, 2000, the competent authorities of the South and the North of Korea have reached two Agreements to settle commercial disputes as well as to set up an arbitral organization called 'South-North Commercial Arbitration Commission'. The Commission is an institutional organization for settlement of commercial disputes arising from trade and investment between south and north Korea. Under the situation, it is becoming a problem of vital importance how to manage and control the Commission for prompt and effective settlement of south-north commercial disputes. While analyzing the above two Agreements for dispute-settlement mechanism, the author proposes desirable ideas and directions in connection with the Commission as follows: 1. First of all, the Commission should become a central common system for settlement of commercial disputes which meets the demand of capitalistic market economy. 2. The Authorities of south and north Korea should recognize that the availability of prompt, effective and economical means of disputes resolution such as arbitration and conciliation to be made by the Commission would promote the orderly growth and encouragement of south-north trade and investment. 3. The Korean Commercial Arbitration Board(KCAB) should be designated as the Arbitration Commission of South Korea because the KCAB is the only authorized institution in South Korea, statutorily empowered to settle any kind of commercial disputes at home and abroad.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.181-209
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• 2004

This Study is divided into 5 separate Parts and an Abstract. Part Ⅰ, Ⅱ consist mostly of a collection of problems, current status, motives and the future of ADR. In Pert Ⅲ was described ADR as policies of judicial settlements. We must accept that a diversity of legal culture will always continue to exist. Accordingly we must learn to accommodate those differences of 'culture' around us and to harmonize conflicting laws. This recognition of our reality should in no way be confused with pessimism. In fact if one accepts this perspective of the world ,the study of law seems enriched and becomes academically more challenging. Recently, in the United States, interest in alternative settlement mechanism has increased greatly, which leads me to wonder why such a phenomenon has taken place. In the first place, I'm amazed at the extent to which conciliation or mediation-or the new word, I guess, is alternative dispute resolution, which by now has its own acronym, "A.D.R,"-have gained attention here recently. When 35 years ago, there was virtually no interest in conciliation in this country at the time. What interest there was, was no in the law schools. But looking at the situation now, we have a spate of publications on the subject; we have organizations that are established for no other reason than to promote alternative dispute settlement. We have courses in the law schools. The American Association of Law Schools and the American Bar Association also have active programs. So we have to ask ourselves why. The difference between now and 35 years are striking. On the other hand, I think the interest of the public in ADR has probably been greatly enhanced by the politics of the so-called "poverty programs." I think that many of these assistance programs for the poor-and I do think the "poor" have become a rather expansive political movement beyond simply taking care of the most marginal people of society-have generated money to explore this kind of dispute resolution.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.26
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• pp.225-253
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• 2005

Nowadays we does not hesitate to definite answer that the arbitration is the most developed dispute settlement out of court in the international commercial transaction. Online arbitration is desirable for the reasons of speed and cost effectiveness to settle the dispute about the international commercial transaction. Online arbitration is fast because it uses the communication technologies that allow information to be sent fast and efficiently. But in online arbitration too much speed and efficiency may lead to a violation of due process rights and consequently the online arbitration awards run a risk to be set aside or refused its enforcement under the international commercial arbitration mechanism. Speed and efficiency may conflict with the procedural guarantee characterizing each adversary dispute resolution process. As arbitration is exclusive of recourse to courts, a state must guarantee that arbitral proceeding should be satisfied with the claim rights requirement. The main question regarding the sources of regulation is particularly for the due process whether or not this is provided by the availability of grounds to set arbitral award aside. In other words, does it respect due process in the arbitration proceeding including information communication and technology under the online arbitration. In this paper it is discussed about how the main issue in arbitration should be implemented in online arbitration proceedings to cope with the due process requirements in national and international.

• Journal of Arbitration Studies
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• v.20 no.2
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• pp.173-198
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• 2010

The purpose of this paper is to research on the liability for the space damage and the settlement of the dispute with reference to the space activity under the international space treaty and national space law of Korea. The United Nations has adopted five treaties relating to the space activity as follows: The Outer Space Treaty of 1967, the Rescue and Return Agreement of 1968, the Liability Convention of 1972, the Registration Convention of 1974, and the Moon Treaty of 1979. All five treaties have come into force. Korea has ratified above four treaties except the Moon Treaty. Korea has enacted three national legislations relating to space development as follows: Aerospace Industry Development Promotion Act of 1987, Outer Space Development Promotion Act of 2005, Outer Space Damage Compensation Act of 2008. The Outer Space Treaty of 1967 regulates the international responsibility for national activities in outer space, the national tort liability for damage by space launching object, the national measures for dispute prevention and international consultation in the exploration and use of outer space, the joint resolution of practical questions by international inter-governmental organizations in the exploration and use of outer space. The Liability Convention of 1972 regulates the absolute liability by a launching state, the faulty liability by a launching state, the joint and several liability by a launching state, the person claiming for compensation, the claim method for compensation, the claim period of compensation, the claim for compensation and local remedy, the compensation amount for damage by a launching state, the establishment of the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea regulates the definition of space damage, the relation of the Outer Space Damage Compensation Act and the international treaty, the non-faulty liability for damage by a launching person, the concentration of liability and recourse by a launching person, the exclusion of application of the Product Liability Act, the limit amount of the liability for damage by a launching person, the cover of the liability insurance by a launching person, the measures and assistance by the government in case of occurring the space damage, the exercise period of the claim right of compensation for damage. The Liability Convention of 1972 should be improved as follows: the problem in respect of the claimer of compensation for damage, the problem in respect of the efficiency of decision by the Claims Commission. The Outer Space Damage Compensation Act of 2008 in Korea should be improved as follows: the inclusion of indirect damage into the definition of space damage, the change of currency unit of the limit amount of liability for damage, the establishment of joint and several liability and recourse right for damage by space joint launching person, the establishment of the Space Damage Compensation Review Commission. The 1998 Final Draft Convention on the Settlement of Disputes Related to Space Activities of 1998 by ILA regulates the binding procedure and non-binding settlement procedure for the disputes in respect of space activity. The non-binding procedure regulates the negotiation or the peaceful means and compromise for dispute settlement. The binding procedure regulates the choice of a means among the following means: International Space Law Court if it will be established, International Court of Justice, and Arbitration Court. The above final Draft Convention by ILA will be a model for the innovative development in respect of the peaceful settlement of disputes with reference to space activity and will be useful for establishing the frame of practicable dispute settlement. Korea has built the space center at Oinarodo, Goheung Province in June 2009. Korea has launched the first small launch vehicle KSLV-1 at the Naro Space Center in August 2009 and June 2010. In Korea, it will be the possibility to be occurred the problems relating to the international responsibility and dispute settlement, and the liability for space damage in the course of space activity. Accordingly the Korean government and launching organization should make the legal and systematic policy to cope with such problems.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.3-49
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• 2006

The purpose of this paper is to make research on the settlement mechanism of the commercial disputes between the South and the North of Korea. Also, this paper is to make research on the south-north Korea's cooperative tasks to promote the disputes settlement, including the operation and management of the South-North Arbitration Commission as well as the enactment of the South-North Arbitration Rules. To realize the spirit of the South-North Joint Declaration of June 15, 2000, the Authorities concerned of the South and the North of Korea have reached an agreement titled 'Agreement on Settlement Procedure of Commercial Disputes' on December of the same year. As the follow-up measures of the said Agreement, the South-North Authorities have signed an another agreement called 'Agreement on Organization and Administration of the South-North Arbitration Commission' on October, 2003, which is becoming vital importance for settlement of the commercial disputes between south and north Korea including the Gaeseong Industrial Complex. Gaeseong, a city surrounded by the North Korean military and a symbol of inter-Korean tensions, is now turning into a peace zone where thousands of North and South Koreans are working side by side. The Gaeseong Industrial Complex project, driven by the logic and economic necessity of cooperation, has been steadily moving forward since the North designated it as a special economic zone and has enacted related laws and regulations for its development. Under the situation, the matter of primary concern is how to organize and conduct the Arbitration Commission for the prompt and effective settlement of the south-north commercial disputes. First of all, the South-North Authorities should recognize that the availability of prompt, effective and economical means of dispute resolution such as arbitration and mediation to be made by the Arbitration Commission would promote the orderly growth and encouragement of the south-north trade and investment. In this connection, the Korean Commercial Arbitration Board(KCAB) should be designated as the arbitral institution of the south Korean side under the Agreement on Organization and Administration of the South-North Arbitration Commission. The KCAB is the only authorized arbitral organization in South Korea to settle all kinds of commercial disputes at home and abroad.

• International Commerce and Information Review
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• v.9 no.1
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• pp.451-465
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• 2007

It is true that every country which includes the developing country has planned own economic development through government subsidies. Korea also has developed their some major industry through supporting government subsidies. Under the WTO structure, however, government's specific supports for export firms come under prohibited subsidy and subsidy supporting must be based on WTO ASCM(Agreement on Subsidies and Countervailing Measures). The purpose of this paper was to study on the WTO ASCM and to analyze cases on the shipbuilding and Hynix DRAM dispute which Korean concerned major subsidy issue. Korea has been undergoing subsidy dispute with EU and U.S.A. concerned matter of shipbuilding and Hynix DRAM respectively. From this research results were as follow : First of all, the WTO ASCM introduced a definition of subsidy and divided subsidies into three categories and was legally bound through dispute settlement mechanism and implemented by all WTO members. Also, through analyzing cases, results were indicated that Korea wins a lawsuit against the matter of shipbuilding subsidy whereas losing the lawsuit against the matter of DRAM subsidy. It means that the case of shipbuilding subsidy do not violation WTO ASCM and the case of Hynix DARAM is against WTO ASCM. Additionally, as we see the dispute cases concerned Korean industry, it is necessary that government should operate subsidies which were provided for certain governmental policy as consisted with WTO ASCM.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.3-32
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• 2007

This age is called the age of global trade, and the World Trade Organization is a forerunner in promoting the global free trade through multilateral negotiations as the global level. On the other hand, regional economic cooperation such as North American Free Trade Agreement(NAFTA) is appearing, saying that promotion by WTO takes too much time. As is known to everybody, Europe is on the way of integrating member states through EU not to mention economic cooperation. Even in Asia such tendency is shown through ASEAN, Korea, China and Japan in Northeast Asia share geographical proximity, many common historical experiences, and similar cultural norms and values although they have disparities in stages of development, trade and economic policies, and financial and legal frameworks. Under the situation, efforts have been made between three countries of Korea, China and Japan for the conclusion of investment agreements including FTA. If the conclusion of the FTA between the three countries would be realized, it would promote regional trade and investment, contributing to economic growth in the Northeast Asian region. The writer in this paper reviewed the settlement of private commercial dispute including investment dispute arising from the FTA and investment agreements. The investment dispute is quite different from an ordinary commercial dispute arising from commercial transactions in view of disputing parties, applicable laws and rules, etc. Therefore it is a problem of vital importance that the parties interested in investment under the FTA as well as the relevant investment agreement should understand and cope with the settlement mechanism of investment disputes arising therefrom. The ICSID Convention provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. All contracting states of the ICSID Convention are required by the Convention to recognize and enforce the ICSID arbitral awards. The New York Convention(formally called "United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards") is also applicable for the enforcement of arbitral awards to be rendered under the FTA. As to applicable rules, the UNCITRAL Arbitration Rules may be required for the settlement of investment disputes under the FTA. This Rules has adopted by the internationally recognized arbitral organizations although it was developed primarily for use in ad hoc arbitration. The promotion of arbitral cooperation may be realized through agreements between arbitral institutions. Especially under the NAPTA system, a central common system was established to resolve jointly private commercial disputes arising from such free trades by the initiative of arbitral organizations among the member countries. It is called Commercial Arbitration and Mediation Center for the Americas(CAMCA), which may be a good example for the settlement promotion of the private commercial disputes between Korea and other relevant countries.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.37
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• pp.133-158
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• 2008

The purpose of this article is to examine the "Annulment" of ICSID Arbitration Award. Most of the international conventions provide for arbitration as the preferred method of dispute settlement. In general they either provide for ad hoc arbitration under the UNCITRAL Rules or under the rules of an acceptable arbitration institution, e.g. ICC, AAA, LCIA and in particular ICSID. The most distinctive feature of ICSID arbitration is the self-contained and exhaustive nature of its review procedures. Unlike other arbitration regimes, control is exercised by internal procedures rather than by the courts. Remedies against the award are limited to those provided for in the Convention and do not include court involvement. Especially, the annulment of the ICSID award by an ad hoc committee must be considered as jeopardizing ICSID Arbitration because it clearly depart from the current trends of international commercial arbitration which limits any kinds of judicial review and excludes any kinds of review on the merits. I wish that the future decisions of the ad hoc committees will restore a narrow scope to the ICSID procedure of annulment in order not to endanger the ICSID Arbitration mechanism.