• 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.

• 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.

• International Journal of Contents
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• v.8 no.2
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• pp.75-81
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• 2012

This study explores the important causal relationship between the public (domestic) and trade (international) disputes of South Korea and China. To understand the relations between the domestic and international disputes, Putnam's study of the two-level game theory has been conducted in order to analyze the effect of complicated social and political frameworks on international trade disputes. Due to the social and political differences between South Korea and China, this study provides three findings based on negotiation, policy, and strategic approaches.

• Journal of Arbitration Studies
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• v.25 no.1
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• pp.65-86
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• 2015

Under current international investment law clear criteria to determine standards of indirect expropriation are absent. Arbitral tribunals determine on a case-by-case whether an indirect expropriation has occurred by conducting a fact-based inquiry. However, three common determination standards can be inferred by analyzing prior arbitration cases. The appropriate analytical framework that can be applied to determine whether a state's measure constitutes an indirect expropriation is as follows. i) the degree of economic invasion of the state's action into the foreign investor's property rights and durability of the period, ii) interference with the foreign investor's distinct and reasonable investment-backed expectations, and iii) the nature, purpose and character of the state's measure. Therefore, it is necessary to fully acknowledge and to utilize strategically this determination standard. However, derived standards cannot be applied to all disputes en masse. So, it is desirable to exclude ambiguity and to clearly define the determination standard of indirect expropriation in investment agreements, since arbitral tribunals can apply different determination standards on a case-by-case basis. And, based on the discussions until now, more developed standards and direction in response to demand should be established through consistent analysis and review of precedents related to indirect expropriation. Lastly, This study is expected to be a useful guideline to prepare a necessary countermeasure to prevent dispute related to indirect expropriation beforehand or in case of dispute occurrence.

• Journal of Arbitration Studies
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• v.20 no.1
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• pp.109-131
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• 2010

Investment Agreement is to be a part of FTA, as negotiating together both trade and investment. For example, it has a separate chapter about investment in KORUS FTA contract and is more detailed and inclusive than BIT contents which are traditional investment provisions. It is called to the investment norm of FT A. The investment agreement lures a foreign investment by providing the environment which is stable to the foreign investors. Hence, it plans in goal for the economic development of the home country. In international investment, the arbitration award cases are coming out to be divided into two parts applying MFN provisions in investor protective principles and dispute resolution process; the tendency of broad interpretation and the tendency of limited interpretation. In the case of RosInvest Co UK Ltd v. the Russian Federation awarded in 2007, the arbitration tribunal interprets that the application scope of MFN provisions contain the more lucrative dispute provision than other BITs without limitations in entity right of the investor. This judgment is the same view as arbitration tribunal position of Maffezini case. The arbitration tribunal of Plama case has kept out an assertion magnifying the arbitration tribunal's jurisdiction. That is, for applying more inclusive investor-nation resolution method from different treaty, tribunal mentioned that MFN provision had to see clearly a point of applying the investor-nation dispute resolution method. Dispute resolution process providing inclusive MFN provision has both the tendency of broad interpretation and the tendency of limited interpretation. It needs ceaselessly to do the monitoring about cases of arbitration award. In conclusion, the point where MFN provisions are applied conclusively is recognized, but it is still controversial whether or not to magnify the jurisdiction of arbitration tribunal applying MFN provisions. Therefore, it does not exist clear principle in the theory or in the award eases about the application scope for entity protection provision of MFN. Hence, The Korean government of Korea and local autonomous entities needs to keep their eyes on the trend of the international arbitration award cases in relation to the investment dispute for the future. Also, Korean government or local self-governing group must consider MFN provisions when they make a contract of international investment treaty such as writing concretely the application of MFN provisions from KORUS FTA.

• Management & Information Systems Review
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• v.9
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• pp.165-177
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• 2002

The purpose of this comparative study is to compare and evaluate international arbitration and forum selection agreements. Recent decades have seen an unparalleled expansion of global trade and investment. Business enterprises of every description ann find themselves entangled in legal proceedings with foreign companies or government entities. Thus, the costs of these proceedings and the consequences of losing are often substantial. Almost, every international commercial controversy poses a critical preliminary question - 'where, and by whom, will this dispute be decided?' the answer to this question often decisively affects a dispute's eventual outcome. It can mean the difference between winning and losing. between de minimis damages and a multimillion dollar award. The same dispute can have materially different outcomes in different forums. Because of the importance of forum selection, parties to international contracts often include contractual dispute resolution provisions in their agreements. These provisions significantly reduce the uncertainties inherent in international commercial disputes, and can offer a substantial measure of partisan advantage. as a consequence, it is almost always advisable to include a contractual dispute resolution provision in any international contract. These provisions typically take the form of : (1) forum selection clauses, or (2) arbitration agreements.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.60
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• pp.79-106
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• 2013

The world is significant increasing investment volume into developing countries from foreign investors. Foreign financial capital is searching in interesting place among the emerging market. However foreign investors put still their experience in the economical and social crisis with political risks in the host countries. MIGA entered into the political risks insurance market which has one of the basic matter of sponsored the private investment guarantee programs. They put guarantee or covering risks of currency inconvertibility, expropriation, breach of contract and political violence. In the case contracts of guarantee concluded between investor and MIGA which are disputes in relation to such MIGA service contract, it should be settled by negotiation, conciliation and arbitration under the convention establishing the Multilateral Investment Guarantee Agency(MIGA). All disputes within the scope to states and investor of MIGA members shall be settled in accordance with the procedure set out in the convention. Recently, MIGA is opening the office in Seoul to strengthen joint efforts between MIGA and Korea. It will be a good chance to consider sustainable improvement and dispute solutions for emerging countries in foreign investment to the korean investors.

• International Commerce and Information Review
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• v.10 no.1
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• pp.375-393
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• 2008

The purpose of this study is to investigate the Chinese investment environment and analyze the actual investment condition of Korean enterprises in China and examine the points at issue. In general, the investment environment in China shows satisfactory progress. China has a multiple and regional extension policy in investment. And the environment for investment changes to insufficiency of company profit, extension of service market, maintenance of legislative system, and insufficiency of preference about foreign company. There are situations of inclining to manufacturing, inclining of region, preference of independence investment, small-sized investment by small and medium enterprises, difficulty of financial assistance, excess of logistic cost, delay of logistic term, difficulty of settlement of legal dispute and difficulty of taking a relative information in investment of Korean enterprise in China. The results of the study indicate mostly that the investment of Korean enterprise into China needs turnover of service trade-tertiary industry, portfolio of investment territory, cooperation with Chinese enterprise through joint venture investment and a large-scale investment for extension of Chinese domestic market.

• Journal of Arbitration Studies
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• v.15 no.2
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• pp.61-91
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• 2005

It is well recognized that the availability of prompt, effective and economical means of dispute resolution is an important element in the orderly growth and encouragement of international trade and investment. Increasingly, ADR(Alternative Dispute Resolution) including arbitration and mediation, instead of litigation in national courts, has become the preferred means of resolving private international commercial disputes. Under the situation, efforts for settlement of trade and investment disputes by ADR have been made between Korea and China through trade and investment agreements and arbitration agreement. Judging from the importance of economic exchange between Korea and Qingdao including Shandong Province, The Korean Commercial Arbitration Board(KCAB) and The Qingdao Arbitration Commission(QAC) should strengthen mutual cooperation to develop efficient methods of resolving commercial disputes arising between the two countries and to assist parties in solving those disputes through conclusion of arbitral agreement. Recently, efforts for conclusion of a Korea-China-Japan Free Trade Agreement(FTA) received strong support at Korea-Japan and Korea-China Summit Meeting held on June and July, 2003 respectively. If the conclusion of FTA among the three countries would be realized, it would promote regional trade and investment, contributing to economic growth in the Northeast Asian region. Under the circumstances, the key arbitral institutions including KCAB and QAC should consider to take the initiative in setting up tentatively called ${\ulcorner}$Joint Arbitration Center for Northeast Asia${\lrcorner}$ for which the CAMCA of NAFTA will be the good example.

• Journal of Arbitration Studies
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• v.32 no.2
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• pp.85-114
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• 2022

When human rights disputes are related to the cross-border investments treaties, the investment arbitral tribunals are confronted with the question of how to adjudicate connected human rights violations. The traditional structure restricts arbitration proceedings to the parties named within an investment treaty, i.e., Investor-Claimant and State-Respondent. If human rights issues occur, States must act as proxies for citizens with human rights claims. This effectively excludes individuals or groups with human rights concerns and contradicts the premise of international human rights law that seeks to empower human rights-holders to pursue claims directly and on an international stage. The methods for intorducing human rights issues in the context of investment arbitration proceedings are suggested as follows: First, human rights arguments can be introduced into ISDS by the usual initiator of investment disputes: the investor as the complainant. Especially, if the jurisdictional and applicable law clauses of the respective international investment agreements are sufficiently broad to include human rights violations, adjudicating a pure human rights claim could be possible. Second, the host state may rely on human rights argumentation as a respondent of an investor claim. Human rights have played a role as a justification for state measures undertaken to comply with human rights laws. Third, third party interventions by NGOs and civil society groups as amici curiae may act as advocates for affected populations or communities in response to the reluctance of governments to introduce their own human rights duties into the investment dispute. Finally, arbitrators have also referred to human rights ex officio, i.e., without having a dispute party referring to the specific argument. This was mainly the case in the context of determining the scope of property rights and the existence of an expropriation. As all U.N. member states have human rights obligations, international investment laws must be presumed to be in conformity with the relevant human rights obligations.