• 한국중재학회지:중재연구
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• 제31권4호
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• pp.99-117
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• 2021

In this study, the effect of reducing and increasing factors in relationship conflict on the relationship exit between auto parts suppliers and buyers was analyzed based on transaction cost theory and relational exchange theory. As a result of the hypothesis test, Hypothesis 1, which states that relationship commitment will hurt relationship exit, and Hypothesis 3 that replacement will harm relationship exit were supported. In addition, Hypothesis 2 which states that transaction-specific investment will positively affect relationship exit was not supported. The theoretical and practical implications of this study are as follows. This study has identified the antecedents of relationship exit by comprehensively applying the transaction cost theory and relational exchange theory. In addition, this study can identify what a company should manage specifically to lower conflict and relationship exit by identifying the antecedents of relationship exit. The limitations of this study and the directions for future studies are as follows. First, not all of the antecedents of relationship exits between auto parts suppliers and buyers have been extensively investigated in the viewpoint of the transaction cost theory and relational exchange theory. In the future, it is necessary to identify additional factors. Second, the study was conducted only from the supplier's viewpoint. In future studies, it is expected that more accurate research results can be obtained by simultaneously examining the supplier's point of view and the buyer's point of view.

• 한국중재학회지:중재연구
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• 제27권4호
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• pp.179-198
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• 2017

The OECD Guidelines for Multinational Enterprises (The Guidelines) was initially promulgated in 1976 as a form of annex to the OECD Declaration on International Investment and Multinational Enterprises. The Guidelines aims at accomplishing the implementation and dissemination of the Responsible Business Conduct. The latest version of The Guidelines, as revised in 2011, directed 47 adhering countries to The Guidelines to set up their respective National Contact Points (NCPs). NCPs are The Guidelines' dispute resolution mechanism for specific instances arising from breach by multinational enterprises of The Guidelines. Korea to date has its own NCP performing its role to offer good offices and facilitates settlement between the parties to the specific instances regarding The Guidelines. However, there has been strong criticism from NGOs and civil society that Korea NCP has not performed well due to lack of transparency and impartiality, especially in the context of the governance of Korea NCP. Under this circumstance, this paper ⅰ) examines current status and problems of Korea NCP, ⅱ) evaluates the core criteria for function and governance of NCPs through a comparative overseas cases study, and ⅲ) suggests improvement plans for Korea NCP.

• 무역상무연구
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• 제67권
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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.

• 한국중재학회지:중재연구
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• 제21권2호
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• pp.157-183
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• 2011

본 연구는 한국의 다국적 기업이 세계 여러 지역(유럽, 아프리카, 아시아, 아메리카)에서 글로벌 경제 활동과 사업을 범세계적으로 수행하고 있으며. 범세계적인 글로벌 사업수행에서 지역별 경제변화가 지역적으로 다양하면서, 복잡하게 전개되는 것에 대해서 글로벌기업이 지역별 특성에 적합하게 사업을 영위하면서 글로벌하게 현지시장 접근 방법을 어떠한 기준으로 우선 접근하는지에 대한 방법을 통계처리를 하였으며 향후 어떠한 방법을 수용하여 전략적 방법과 모델을 개발하여 자연스럽게 글로벌화 추이를 알아보고자 연구과제들을 실증 분석 하였음. 그리고 글로벌화 하는 TNC's 기업의 지식과 정보의 습득이 중요하며, 변화와 혁신을 통해서 자신의 분야에서는 세계적 선도 기업이 되고자 하는 TNC's 기업이라면 선진국 TNCs 기업보다는 더 적극적인 전략과 사업 모델을 모색해야 한다는 전제하에 실증모형을 설정하고 연구과제들을 정리하였음. 1. TNC's에 의하여 세계경제 활동에 중요한 변수들을 여러 가지 측면에서 검토하고 지리적요인과 경제적 요소들을 고려하여 기술과 자원의 아웃소싱의 글로벌화 방법을 고려하여 세계경제체제의 변화와 향상에 많은 투자내용들이 지리적인 여건과 글로벌화를 고려하여 투자가 진행되어지는가의 추이를 분석하였음. 2. TNC's의 역량에 따라 사업경영에서 현지국가의 경영관리와 산업의 변화에 까지 영향을 주었고 향후에도 글로벌화 경제의 발달과 향상에 협력하는 기업, 자국의 경제 발달과 향상에 협력하는 기업에까지 긍정적인 협조가 이루어지는 투자형태의 글로벌화 지수의 내용을 실증분석 하였음.

• 한국중재학회지:중재연구
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• 제19권2호
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• pp.229-243
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• 2009

The content industries environment has been undergoing significant changes due to rapid technological innovation and content market expansion. Interest in the industry is growing fast both in Asia and Europe. However, in Japan content industries are showing almost zero growth with no increase in overseas expansion. Until now, Japanese content industries have been able to grow based on domestic demands. Many different factors contributed to today's zero growth in Japanese content industries. Two main reasons are: 1) Their lack of interest in overseas expansion and 2) Insufficient investment in domestic human resources development. Considerable amounts of Japanese contents including films, music, games, and animations have been distributed in many Asian countries and today piracy problems in the region are at a serious level. According to 2004 records pirated editions accounted for 85%, 16%, 19%, and 36% in China, Korea, Hong Kong, and Taiwan respectively. Pirated editions bring economic losses to Japanese copyright profits. Making it worse, they weaken the motivation to create content and make it hard to activate cultural exchanges. Losses from copyright violations in Japanese content industries are expected to keep increasing in the future. In order to make Japan competitive and grow it is crucial to take proper measures to protect copyright infringements. This study considers the current situation of the Japanese content market, infringement issues in content which is causing many problems in Asian countries, including China, and facts about losses caused by this problem.

• 한국중재학회지:중재연구
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• 제26권2호
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• pp.27-44
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• 2016

The use of program formats has slowly but surely developed into an important component of the television industry. This article examines the surprising gap between the constantly growing, multi-billion-dollar trade of program formats and their unclear and contradictory legal treatment. From both the social and commercial standpoints, television formats are valuable creations. Understanding the two products, the paper and program stages, of a television format and their respective markets, is fundamental to discussions of its legal protection. Interestingly, under current law, the less-developed stages of the process (program ideas and paper formats) are awarded more protection than the aired program format, which accumulates higher levels of investment, creativity, and expression. Internal industry mechanisms, such as vertical integration, damage to reputation, and industry institutions, exist in both markets and are still able to control and influence members' behavior to some extent. However, while the influence of internal industry mechanisms is still strong in the paper format market, in the program format market, which continues to grow, such mechanisms have weakened, amplifying the importance of a clear legal system. The absence of protection will certainly not completely eliminate the production of new program formats. However, these factors do not add up to a case against protection. The changes in the program format market in the last two decades support the theory that the overall effect of providing legal protection for TV formats would promote beneficial competition and encourage more original creations. The underlying question for television formats should not be whether to protect but rather how.

• 아태비즈니스연구
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• 제10권1호
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• pp.117-133
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• 2019

This paper examines the most-favored-nation treatment clause on the BITs concluded by China and examines the attitudes of China on the application of the most-favored-nation treatment clause to the ISDs by period as the scope of arbitration increases. Moreover, this study pointed out the problems that would be exposed if the most-favored-nation treatment clause applies to ISDs and then also suggested solutions. The conclusions of this study are as follows; if the Chinese government strictly restricts the applicable expansion of the most-favored-nation treatment clause to the dispute settlement procedure by considering only the position of the capital importing country, it implies a contradiction against the development trend of the arbitration system related to international investment disputes. Of course, in order to protect the rights of Chinese investors investing abroad, expanding the applicability of the most-favored-nation treatment clause to the ISDs procedure unconditionally may have a negative impact under China's dual status of being a capital-importing country and a capital-exporting country. Therefore, China should clearly define the scope of application of the most-favored-nation treatment clause, the completion of the local remedy for the host country in cases of BIT to be concluded in the future or amended, and also clearly define that the most-favored-nation treatment clause should not be retroactively applied into BITs already concluded as an exception of applicability of the most-favored-nation treatment.

• 무역상무연구
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• 제71권
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• pp.195-216
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• 2016

In determining the content of the FET standard, the tribunals stated protection of investor's legitimate expectations, due process and denial of justice, transparency, discrimination and arbitrariness, good faith, etc. The most major elements of the FET standard is the protection of the investor's legitimate and reasonable expectations. It is necessary to consider whether it is possible to what the expectations of investors are protected as legitimate and it is formed under any circumstances. If host state frustrate investor's legitimate expectations, it found a breach of the FET. The host state's specific assurance may reinforce investor's expectations, but such explicit statement is not always necessary. The host state must preserve a stable environment for investments. However, It must not be understood as the inalterability of the host state's legal framework. It implies that the host state's subsequent changes should be made consistently and predictably. The host state is entitled to exercise a reasonable regulatory authority to respond to changing circumstances in the public purpose. Therefore, whether the violation FET shall be determined through a balanced against the investor's legitimate expectations and the host state's reasonable regulatory exercise in the public interest. And investor should keep in mind that the principle of proportionality is applied unless host state provides stabilization clause or similar commitments to investor. Also host state should establish the basis of an argument about reasonable regulatory authority for public interest.

• 무역상무연구
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• 제62권
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• pp.87-109
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• 2014

This article examines the regime for the recognition, enforcement and execution of arbitral awards rendered under the auspices of the International Centre for Settlement of Investment Disputes(ICSID). The effectiveness of international arbitration depends on the degree of finality of the award and the ease with which the award may be enforced by the prevailing part. The ICSID Convention provides for rigorous finality and seeks to establish optimal preconditions for the enforcement of awards in manner that distinguishes ICSID from other international arbitral regimes. As with other classes of disputes subject to judical or arbitral jurisdiction, most ICSID cases settle. In the cases that do proceed to award, participants must understand what will happen if the losing party fails to comply with the award voluntarily and the prevailing party takes the award through phases known as "recognition", "enforcement" and "execution". Investors should assess possible execution before finalizing investments and certainly before they initiate collection proceedings on ICSID awards. An investor with a monetary award in hand should attempt to locate assets of the losing State and then obtain comparative law advice to identify jurisdictions that allow attachment of at least certain categories of sovereign assets.

• 무역상무연구
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• 제36권
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• pp.87-109
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• 2007

This Comment explores the ICSID case of CMS Gas Transmission Company v. Argentine Republic, awarded on May 12, 2005. The Part II of this Comment first describes the relevant facts of the case including the some background for readers' understanding and the Part III summaries the claimant's requests and the decisions rendered by the Arbitral Tribunal in the Award. At Part IV, the Comment addresses the issue of determinating laws applicable to the merits of dispute in case that the parties of the case have not chosen a governing law, and at Part V, takes a close look into three main issues of (i) the indirect expropriation of the investment, (ii) the breach of fair and equitable treatment and (iii) the protections under umbrella clauses. In this CMS case, we see first that while the Tribunal affirmed that any indirect expropriation can occur from incidental interference depriving the foreign investor of the use or reasonable-to-be-expected economic benefit even if not necessarily to the obvious benefit of the host State, the Tribunal denied the occurrence of indirect expropriation in this case by holding that the Government of Argentina has not breached the standard of protection laid down in the Treaty. Secondly, however, regarding the issue of fair and equitable treatment, we see that the Tribunal, finding Argentina's breach of obligations, affirmed that the foreign investor can expect the host State to act in a consistent manner, free from ambiguity and totally transparently in its relations with the foreign investor, which can give the foreign investor certain degree of foreseeability. Thirdly and finally, we see that, on base of the effect of the umbrella clause, the Tribunal recognized the obligation of the host State undertaken not to freeze the tariff regime or subject it to price controls and not to alter the basic rules governing contracts between the foreign investor and the host State without the first's written consent. However, the protection under the umbrella clause is available only when there is a specific breach of rights and obligations under BIT or a violation of contract rights protected under BIT.