• Journal of Arbitration Studies
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• v.29 no.2
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• pp.35-63
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• 2019

Since imposing Performance Requirements (PRs) on investors have been conducted as a means to protect a host state's domestic industry in the short run, with its effect on improving the international balance of payments, it has been implemented mostly in developing countries. From the viewpoint of investors, however, PRs hinder free competition and investment activities and have the effect of distorting international trade activities; therefore, they are expected to bring detrimental effects on the host state's economic development in the long run. PRs provided by International Investment Agreements (IIAs) and WTO-TRIMs, too, included many abstract regulations which are grounded on the host state's economic efficiency in the past; however, those PRs are gradually being more concretely specified, shifting to a form of prohibition with the goals of increasing the protection on investors and realizing investment liberalization. Accordingly, when Korea freshly concludes IIAs or revises them afterwards, one should focus more on following the points regarding PRs. First, to protect Korean companies' investment activities, it is advantageous to list the contents of prohibited PRs extensively and concretely and create a stipulation. Second, it is necessary to list the contents of the PRs prohibited and add the phrases for prohibiting "any other similar requirements" explicitly, as well so as to cover the PRs that can appear newly. Third, as in the cases associated with PRs, issuable matters are mostly either the range of applying PRs or the conditions of applying them (relevance or detrimental effects); therefore, it is necessary to classify the cases accumulated by issues and analyze them thoroughly. In conclusion, as this study has analyzed the theoretical characteristics of PRs provided in IIAs and related cases and suggests exquisite theory regarding PRs, it not only lays fundamental grounds for follow-up research but also gives useful and practical guidelines for the parties concerned and the arbitrators according to the ISDS procedure.

• Journal of Arbitration Studies
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• v.24 no.2
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• pp.3-31
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• 2014

As all aspects of international activity have kept growing in good transaction, transnational investments, joint ventures, and the licensing of intellectual property, it is inevitable for disputes to increase across national frontiers. International disputes can be settled by arbitration and ADR. In the situation presented in the paper, any dispute shall be finalized by arbitration and conciliation in the Gaeseong Industrial Complex. Inter-Korean Commercial Arbitration in the Gaeseong Industrial Complex has become the principal method of resolving disputes in trade, commerce, and investment in accordance with the "Agreement on South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). But the follow-up measures of the said agreements have not been fulfilled. Some prerequisite measures of the Inter-Korean commercial arbitration must be satisfied. In order to proceed with arbitration and conciliation in the Gaeseong Industrial Complex, we need to ask the following: Does the status of an arbitrational matter? Should an agreement to arbitrate contain a choice of law clause? Should one provide for one arbitrator or three? How should the arbitrators be selected? What is the relation between party-appointed arbitrators and the presiding arbitrator (neutral arbitrator)? Do arbitrators compromise more than the litigation? Can conciliation be combined with arbitration? To execute the enactment of arbitration regulations, the contents of the Arbitration Rules of the Korean Commercial Arbitration Board (South) and the Korea International Trade Arbitration Committee (North), together with the Korean Arbitration Act and External Arbitration Act of North Korea and the UNCITRAL Model Arbitration Law and UNCITRAL l Arbitration Rules are reflected in the Rules. There are many aspects of the Inter-Korean Commercial Arbitration. It is essential to understand key elements; namely, the arbitration agreement, appointment of arbitrator, arbitral proceeding and arbitral award, and enforcement and setting aside of arbitral award. This research deals with five chapters. Chapter 1 provides the introduction. Chapter 2 deals with trade volume between South and North Korea and the kinds of dispute in Gaeseong. Chapter 3 addresses contents and follow-up measures of the agreement on the "South-North Commercial Dispute Settlement Procedures," "Agreement on Organization and Operation of Inter-Korean Commercial Arbitration Committee," and the Annexed Agreement on "Organization and Operation of Inter-Korean Commercial Arbitration Committee" (2013). Chapter 4 features the problems and tasks of the pertinent agreements. Chapter 5 gives the conclusion. Enabling parties to find an amicable solution to the dispute in the Gaeseong Industrial Complex can lead to a useful and appropriate framework either through direct negotiation or by resorting to conciliation or mediation in accordance with pertinent agreements and follow-up measures contained in the agreements.

• The Journal of Fisheries Business Administration
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• v.30 no.2
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• pp.1-23
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• 1999

In the Northeast Asian region fisheries agreements of the past regarding high seas as an agreement area were transformed or new agreements were introduced in order to conform to the EEZ regime. However, the existing joint regulatory zone which “open” status is somewhat similar to the high sea not only disappear, but also two new systems were established. To begin with, parties of the agreement claimed their EEZs to be from the territorial sea baselines to the extent set forth, problem of the fishery access of the other party under the agreement is to be solved on the principle of reciprocity and on recognizing of the catch results achieved in the past. In regards to the overlapping zones like neutral zone of the East Sea of Korea(Sea of Japan) and neutral zone to the south of the Cheju Island, provisional measures zones in the Yellow Sea and in the East China Sea, and transitional zone of the Yellow Sea special fisheries management systems reflecting the legal character of the zone involved are applied. Moreover, as fisheries agreements defining open sea as an agreement zone are not able to conform to the EEZ regime, so new fisheries agreements must be taken out from old systems and conceptions, and must be understood and enforced from the new point view. Therefore, countermeasures needed to do so should be developed, and their basic structure is as follows. Firstly, the basic concept of the EEZ regime requires that the coastal states have sovereign rights on their sea zones' natural resources and bear responsibilities appropriate to their allowed jurisdiction. Each Northeast Asian state should adjust the structure of fishing industries and employ advanced fisheries management system, and should make efforts toward such issues of the state policy as increasing fishery resources and preserving ocean environment. Secondly, measures should be developed to solve the international fisheries disputes which are to occur under enforcement of the new fisheries agreements system. In regards to the acts of violation the fisheries laws in the foreign EEZ the principle of jail sentence prohibition is established by the UN Convention on the Law of the Sea, and every fisheries agreement reflects this principle. Therefore, the present question is to consider concrete measures to enable the easy release of the seamen, who violated fisheries laws slightly and well-intently, through establishment and management of the guarantee fund needed to make collateral reasonable. Thirdly, Korean-Russian and Russian-Japanese fisheries relations were formed on the basis of the EEZ regime, since 1992 and 1977 respectively, and are expected to maintain mutually beneficial cooperative character. As for Korean-Chinese-Japanese fisheries relations, the operational problems of overlapping zones, and problem of the permits for EEZ mutual access should be solved on the basis of the principle of reciprocity and equity rather than unilaterally from any side.

• The Journal of Fisheries Business Administration
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• v.40 no.2
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• pp.71-103
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• 2009

This study is designed to propose the ways of the multilateral cooperation system for effective management of fisheries resources in the various overlapping zones established by bilateral fisheries agreements between Korea, China and Japan in North East Asia as semi-enclosed sea. It is necessary to build multilateral fisheries cooperation between Korea, China and Japan in North East Asia because conservation & management of transboundary fish stocks could not be guaranted effectively by the management of fisheries resources in the area where piled up the current-fishing-pattern zone, as white zone and the various grey zone as middle zone, and the interim measures zone of bilateral fisheries agreements between Korea, China and Japan are piled up. Fisheries management in Korea, China and Japan by the bilateral fisheries agreements in North East Asia is faced with difficulties manage fisheries resources. International relationship on fisheries is maintained by bilateral fisheries agreements based on UNCLOS. However fisheries resources are over-exploited and the recovery of the fisheries resources is very slow because proper conservation and management of transboundary fish stocks which article 63(1) of UNCLOS defines have not prepared yet. Thus close cooperation among the coastal States for a proper conservation and management of transboundary fish stocks is necessary. Since the transboundary fish migrate within the EEZs of two or more coastal States, there is a need to manage the fish stocks in the region between Korea, China and Japan through a multi-lateral mechanism at ccircumference area of the current-fishing-pattern zone as white zone. Coastal States must guarantee sustainable maintenance of transboundary fish stocks through the regional cooperation for a proper conservation & management because one coastal State alone could not guarantee conservation and management of fish stocks. Thus there is a need to build multilateral fisheries cooperation between Korea, China and Japan in North East Asia. There are many successful instances including the Barents' sea for a proper conservation & management of transboundary fish stocks. The Barents' sea is one of the best research object to study the regional cooperation for a conservation & management of transboundary fish stocks in North East Asia. In conclusion, it is necessary to build a multilateral fisheries cooperation system between Korea, China and Japan in North East Asia to conserve and manage transboundary fish stocks effectively. It seems desirable that the range of the area to conserve and manage fish stocks should may be any partial area in the current-fishing-pattern zone and interim measures zone between Korea and China, Jeju middle zone between Korea and Japan, interim measures zone of bilateral fisheries agreements between China and Japan.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.43
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• pp.481-507
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• 2009

Along with continuous increase in international investments encouraged by wide spread bilateral investment treaties (BIT) including free trade agreements (FTA), international investment disputes have been also increasing. This means that a host State, an importer of foreign investments, and a investor who exports its investment to foreign State, need to take measures to prevent international disputes arising from international investment or to prepare for the arbitration for resolving the disputes. Under these circumstances, this paper compares ICSID arbitration rules and UNCITRAL arbitration rules in respect of (i) the institution of arbitration, (ii) the appointment of arbitrators and the composition of arbitral tribunal, and (iii) the procedures for, and the form of, arbitral awards. On base of this comparison, this paper further suggests certain practical issues that the host State's government and the foreign investors should be aware of in order to be ready for the resolutions of disputes by ICSID or UNCITRAL arbitrations.

• Journal of Arbitration Studies
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• v.22 no.3
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• pp.165-185
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• 2012

Franchising has proved over many years to be a successful commercial vehicle for the international distribution of products and services. However, there has long been missing a user-friendly model contract that would reflect the diversity of international franchising contracts. Because the ICC has drafted a model form of international franchising contracts, taking into account the most commonly encountered clauses in franchising agreements, their model could be used as a checklist of the core obligations of a cross-border franchise contract. Because there is no internationally agreed-upon uniform legislation on franchising, parties must rely on national laws and regulations applicable to the international franchise (when such laws and regulations exist) and should therefore very carefully draft stipulations for the legal status of the contract. This study has been intended to cite some provisions for striking a fair balance between the interests of the franchisor and those of the franchisee and for avoiding unfair trade acts in international franchising contracts.

• International Commerce and Information Review
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• v.9 no.3
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• pp.323-341
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• 2007

International trade conflict has been increased since WTO has appeared. Like this, the cause that the number of international trade conflict has been increased is by means of enlargement of agreements range. But some new facts have been added. They are Anti-dumping, subsidy, Countervailing duty, Safeguard, the norm of intellectual property right, the procedure of permitting importing products, Technical Barriers, agricultural products, and the area of textile. Since Japanese government has decided to give lavor import quarters to China without permission of Korea, Korean government formally presented the system of lavor import quarter to WTO DSB due to WTO agreement disobedience of Japan. Accordingly, this paper has the following purpose; to analyze situation on fiber dispute of Japan. Some methods about trade barrier against Japan need to be solved from another viewpoint owing to lavor IQ dispute.

• Journal of Korea Trade
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• v.24 no.6
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• pp.82-100
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• 2020

Purpose - This paper attempts to compare five free trade agreements with gender chapters ratified by Chile and Canada and derives lessons for Korea in terms of gender-aware trade policy. While Chile and Canada have three and two FTAs with gender chapter respectively, Korea has none so far, although it has already ratified an FTA with the two countries. Design/methodology - This study first investigates all the gender-provisions with the gender chapters, conducts a comparative analysis on the five chapters as well as a case study of one target FTA's implementation and achievements, and finally suggests policy implications for Korea's trade administration as well as trade-related agencies. Findings - According to the analysis, there are three phases in terms of advancement in gender-related trade policy. As Chile is in phase two and Canada is in phase three, Korea remains in phase one. It has a ministry related to gender within the government, but not within the OMT. It has statistics on female business, but not of women traders. It has a few gender-related provisions in its FTAs, but not a gender chapter. In this sense, new mandates related to gender-aware trade policy for OMT, KITA, and KOTRA should be provided to realize the concrete economic benefits resulting from empowering women traders and policies promoting them. Originality/value - Existing studies only focus on introducing gender-related international commitments and Korea's participation in them. This paper is the first attempt to compare actual gender chapters of five FTAs ratified by two countries with the most advanced gender chapters in the world. To gain benefits from the positive gender impact of trade agreements, negotiating and signing gender responsive FTA with future partners is one of the most efficient, as well as inclusive, trade policies urgently needed for Korea.

• Journal of Arbitration Studies
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• v.17 no.1
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• pp.77-95
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• 2007

This article focuses on the history and evolution of the US court's attitude towards unilateral arbitration and dispute resolution clauses, but also considers the practical approach of national courts to theses clauses. It goes on to consider some potential pitfalls in the operation of unilateral clauses, which should be borne in mind when developing a strategy for bringing or defending a claim which falls within the scope of a unilateral clause. There can be few objections to the general validity of unilateral arbitration clauses. The principle of party autonomy is the driving force behind international arbitration and, provided it is tolerably clear that the parties intended the arbitration clause to operate unilaterally, courts should be reluctant to interfere with the parties' agreement. There are also no persuasive public policy reasons why such clauses should not be upheld in commercial agreements. In addition to the issue of whether such unilateral clauses are permissible under certain law, it is important to be aware of how they should properly operate in practice, that is, useful guidance on the subject of the proper operation and effect of such clauses where they are intended to be used to enable a party to decide whether, and in what circumstances, a claim should be referred to court or to arbitration.

• The Journal of Fisheries Business Administration
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• v.48 no.4
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• pp.45-66
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• 2017

Although the main objective of Free Trade Agreements (FTA) is market integration among member countries, there are limited studies supporting this impact. Our study explores whether FTA has enhanced market integration between South Korea and its FTA partners, focusing on South Korea's fishery product import market. We investigate two research questions concerning FTA impacts: first, whether trade costs declined when South Korea imported fishery products from its FTA partners after the FTA; second, if the speed of the convergence of South Korea-its FTA partners'price differential of imported fishery products on trade costs result to occur more quickly after the FTA. To determine these outcomes, we utilize a Threshold Autoregressive Model covering the sample periods from January 2002 to April 2017. Our findings demonstrate the effects of FTA on market integration are different among FTA partners. FTA has enhanced the market integration between South Korea and Norway, Vietnam, and Spain, respectively, but not for others. Therefore, we find positive evidence of FTA on fishery import market integration between South Korea and Norway, Vietnam and Spain, respectively.