• Journal of Arbitration Studies
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• v.18 no.1
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• pp.147-165
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• 2008

Appointment of arbitrators is very important in arbitration. As it has been a long laps since Korean peninsula was devided into two parts, South and North, it has come to be too much gaps between South and North in the law, social system, commercial practice and etc.. South Korea is familar to international commercial practice and capitalistic legal system generalized internationally in modern times. On the other hand as North Korea was closed society for a long time, they are not familar to international commercial practice and market economy. In this connection, commercial disputes arising from the transactions between South and North will occur frequently and it will be very difficult to select governing law or commercial practice referred to the disputes. Under the circumstances, when and if an arbitrator from South or North will be appointed as presiding arbitrator in the tribunal composed by three arbitrators, the part from which the presiding arbitrator come will be a majority, and it will be advantageous to the parties came from the part of which the presiding arbitrator come from. Such being the case, sole arbitrator or presiding arbitrator needs to be appointed among foreigner. Otherwise I recommend the tribunal composed by two arbitrators and umpire system. As to arbitrator's fee, as there is a big gap in its economic aspects between South and North, I supposed to need establishing the fund made by corporation with South and North in order to compensate arbitrators from South or abroad for their fee. Finally it is more important to prevent disputes arising from transactions between South and North. In order to prevent the disputes, education for North Korean about international commercial practice and skill to make a contract of international sale of goods and investment are needed.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.121-145
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• 2009

South Korea has investment agreements such as FTAs, BITs with several countries. Up to now, no single case has been registered against the Korean government on breach of investment agreements, but it is likely that the number of such cases would increase. Therefore, an investor-state dispute settlement system, an arbitral procedure by which a foreign investor may seek compensation of damage against the host country, is gaining its importance. The provision of the ISDS has been one of the hottest issues in Korea while the Kor-US FTA was being signed. In this respect, with the growing number of regional agreements such as BITs and FTAs, a careful scrutiny on the ISDS is necessary for Korea. I have therefore studied theoretically subjects including the National Treatment(NT), the Most-Favored Nation(MFN), Fair and Equitable Treatment and Expropriation - those that have been the objects of protection on investors. And I have analyzed ICSID arbitral awards and provided implications. In the ICSID arbitral awards, the Fair and Equitable Treatment turned out to be the most recognized violation on investors by the host State in terms of investor protection. On the other hand, Indirect Expropriation - a matter of which public anxiety was shown led by civic groups - was not generally recognized in arbitral awards. This study is written for sake of governments, local autonomous entities and public enterprises that are in charge of FTAs and BITs.

• Journal of Arbitration Studies
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• v.19 no.3
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• pp.67-91
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• 2009

Nowadays, Alternative Dispute Resolution in terms of reconciliation, arbitration, and mediation is in the spotlight as a try to overcome the limits of a lawsuit as well as the judicial reform. Since many articles have studied ADR in America, Germany, Japan and the like which developed the system in advance, this article compares ADR in major Asian countries including China, Indonesia, Singapore, Thailand, Malaysia, India, and Vietnam etc. introducing ADR organizations as well. On the matter of vigorous trade and investment between Asian countries currently, it seems inevitable not to have consequential disputes through international exchange. Thus it will be very useful to know the law to resolve the conflict between the countries involved. This article is written to help to resolve the disputes in Asian countries and provide research materials to develop ADR in Korea by comparing the ones in major Asian countries. In addition, the comparative study of ADR in Asian countries should be continued to find the model which best fits in Asia as well as to nurture talent.

• Journal of Arbitration Studies
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• v.18 no.3
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• pp.71-89
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• 2008

International technology transfer(ITT) or technology trade is a very comprehensive term covering various mechanisms and channels for shifting technologies across borders. Thus, it refers to numerous complex processes, ranging from innovation and international marketing of technology to its absorption and imitation. It includes technology, trade, and investment. Markets for exchanging technologies are inherently subject to failure due to appropriability problems, spillovers, asymmetric information, and market power. Thus, there is strong justification for public intervention. Technology developers are interested in reducing the costs and uncertainty of making transfers, along with protecting their rights to profit from such transfers. On the other hand, technology importers are interested in acquiring knowledge at minimal costs, asking for restricting sharply the exclusive rights of foreign firms to exploit technology. The purpose of this paper is to review the characteristics, risks, legal issues and contractual check points of ITT, focusing on the avoidance of commercial disputes during the very complex processes of ITT.

• Journal of Arbitration Studies
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• v.19 no.1
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• pp.45-65
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• 2009

China and Taiwan had opened complete Three Linkages era December 2008, in the 59 years. The improvement of two countries' relationship is expecting to spur two countries more on the economy exchange. However the increasement of investment and trade between two countries will increase disputes to ratio. In order to settle the disputes related to economy between two countries, the most favorite way is to use arbitral system which involve less public power. After China and Taiwan recognized this point, they announced provisions which allow to solve controversies through the arbitration between parties of two countries since 1980, and prepared legal basis for dispute settlement between two countries. However, because China and Taiwan do not authorize each party as a country, the execution application made by each party based on New York Convention related to foreign arbitral awards cannot be approved. Because of these kind of reasons China and Taiwan should agree in order to guarantee mutual execution of arbitral awards which is an ultimate purpose of arbitration. However because of the political situation of two countries there are provisions related to execution for arbitral awards decided by each party. In this paper, I separated the provision related to mutual execution for arbitral awards of each party of China and Taiwan, examined exposed problems, and suggested ways to improve. It can support some of assistance and implication to establish basis of arbitral system between South Korea and North Korea and to suggest direction to derive through this kind of study.

• Journal of Arbitration Studies
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• v.16 no.1
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• pp.253-275
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• 2006

Ever since the open and reform policy in 1987, China has adopted the socialistic market economy system and has been moving forward in economic reform. This gradually expanded their market economy. The open and reform policy achieved the highest average annual GDP growth rate of 9% and helped the country maintain high growth. China's economic growth in recent years has a lot to do with the international trading and direct investment by foreign corporations. China's entry into the WTO dramatically increased their amount of capital and investments due to their aggressive investments with foreign corporations. It is quite amazing that investments in China has been constantly increasing while the direct investments worldwide is decreasing. Moreover, increase in such investments is contributing to China's job creation, as well as, the expansion of international trading. When international economic exchange started between Japan and China in the 1970s, it was in the form of aid for developing countries, hence the collection of the investment was out of the question. It was in the 1990s that Japan started the full-scale investments with China and it was mostly centered in transfer of the production base. Japanese corporations aim was to mass produce goods less expensively using abundant and cheap labor and to sell them to Japan and other countries. The amount of Japan's exports and imports compared with China is increasing every year but the trade deficit has gone into the red. The dollar amount has been decreased from $ 27 billion in 2001 to $ 18 billion in 2003. The problems and damages in the system of justice and administrative confrontation that Japanese corporations are facing are continuously at a stand-still even after China's entry into the WTO. It has been 20 years since Japan's advance in China and during that period, the Japanese corporations brought many changes ranging from exports/imports to direct investment. Although Japan's new corporations tend to be located in the mid-western part of China, rather than the coastal areas, the region itself is not the cause for the confrontation. The problem stems from the Japanese treating the Chinese as if they were Japanese because they look similar due to their Asian ancestry. In reality the Chinese have completely different ways of doing business. Here we will take a look at the international trading and direct investment of Japanese corporations in China and study the conflicts that occurred in business transactions with China through real examples.

• Journal of Arbitration Studies
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• v.25 no.4
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• pp.3-23
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• 2015

The Chevron saga including Chevron/TexPet v. Ecuador, PCA Case No. 34877(hereinafter referred to as "Chevron I") and Chevron/TexPet v. Ecuador, PCA Case No. 2009-23(hereinafter referred to as "Chevron II") started out of domestic litigations between TexPet and Ecuador in the early 1990s. In Chevron I, the Tribunal decided that Article 2(7) of the U.S.-Ecuador BIT on effective means of provision was breached because of undue delays in the seven legal proceedings TexPet had brought against Ecuador in respect to contractual obligations. In Chevron II, it was contended that through the actions and inactions of the judiciary and the executive, Ecuador breached her several obligations under the BIT. Ecuador objected to the jurisdiction of the Tribunal because TexPet's investment was terminated in 1992, and because Chevron is not a party to the 1995 Settlement Agreement and 1998 Final Release. In its Interim Award on Jurisdiction and Admissibility, the Tribunal applied a prima facie standard to the facts alleged by the Claimants but denied by the Respondent, and decided that questions in respect of the Respondent's jurisdictional objections should be joined to the merits under Article 21(4) of the UNCITRAL Arbitration Rules. In the merits phase of Chevron II, the Tribunal divided the merits of the Parties' dispute into two parts, entitled "Track 1" and "Track 2". In its Partial Award on Track 1, the Tribunal decided that Chevron is a "Releasee" under the 1995 Settlement Agreement. In a decision on "Track 1B", the Tribunal decided that the Lago Agrio complaint cannot be read as pleading "exclusively" or "only" diffuse claims, and that, to this extent, the Claimants' reliance on the 1995 Settlement Agreement as a complete bar to the Lago Agrio complaint must fail, as a matter of Ecuadorian law. The Tribunal maintained the position that the Parties' disputes on both merit and jurisdiction should be reserved for Track 2. It remains to be seen how the Tribunal addresses the Claimants' allegations of multiple denials of justice under international law against the judgments of the Respondent's Courts, together with the Respondent's jurisdictional objections in Track 2 of the arbitration.

• Journal of Arbitration Studies
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• v.30 no.2
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• pp.165-184
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• 2020

In this study, the factors affecting opportunism in the relationship between suppliers and key accounts were analyzed from the viewpoint of transaction cost theory, market power theory, and relationship marketing theory. As a result of the hypothesis test, Hypothesis 1 stating that demand volatility will have a positive effect on opportunism and Hypothesis 2 that transaction-specific investment will have a positive effect on opportunism were also supported. In addition, Hypothesis 3 stating that channel power will have a positive effect on opportunism was also supported. Lastly, Hypothesis 4 stating that relational commitment will have a negative effect on opportunism was not supported, along with Hypothesis 5 stating that transaction satisfaction will have a negative effect on opportunism. The theoretical and practical implications of this study are as follows. This study has identified the antecedents of opportunism by comprehensively applying the transaction cost theory, market power theory, and relationship marketing theory. In addition, this study can identify what a company should manage specifically to lower opportunism by identifying the antecedents of opportunism. The limitations of this study and the directions for future studies are as follows. First, not all of the antecedents of opportunism of key accounts have been extensively investigated from the viewpoint of the transaction cost theory, market power theory, and relationship marketing theory. In the future, it is necessary to identify additional factors. Second, the study was conducted only in the supplier's viewpoint. In future studies, it is expected that more accurate research results can be obtained by simultaneously examining not only the supplier's point of view but also the buyer's point of view.

• Journal of Arbitration Studies
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• v.26 no.1
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• pp.89-105
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• 2016

2008 began with the American financial crisis which gave way to the liquidity crisis (Fannie Mae and Freddie Mac) situation in which 'the withdrawal of investment initiated from the insufficiency of the U.S. subprime mortgage loan companies', 'the large size loss situation of the financial company (Bear Stearns) due to the American structured bond insufficiency' and the second half opening part national debt mortgage company. Within the American financial crisis was propagated the crisis of international derivatives. Due to this, the withdrawal of foreign investment progressed in the interior of a country with the considerable. By the end of 2007, the exchange rate fluctuation was absorbed in the domestic financial circle on the belief the potentiality of the domestic financial market had been growing drastically through the expansion of the foreign currency debt according to this and it came to the defence but while the exchange rate jumped up to the dollar shortage according to the international crisis, the small and medium companies making the banks and exchange rate-related derivatives contract were going bankrupt due to the derivatives loss. The small and medium factories establish the bank exchange rate-related derivatives has nose (KIKO), pivot (PIVOT), and snowball (Snowball) etc. at that time and the damage which it is the KIKO grasped at 6 end of the months in 2008 caused by reaches to 1 thousand billion 4 thousand hundred million dollars. Small and medium companies in which the dollar which it has to denounce among small and medium companies bearing the KIKO contract in fact with the Knock-In generation city bank exceeds the amount of sales were known to be 68 enterprises among 480 enterprises. This paper departs in this awareness of a problem and tries to look into the risk factor of the derivatives, including nose and study the essential ring risk management plan of small and medium manufacturer.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.139-161
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• 2020

In this study, the factors affecting opportunism that causes conflict in the franchise system between franchisor and franchisee were analyzed based on the transaction cost theory and power-dependency theory. Hypothesis 1 states that franchisor support will negatively affect opportunism. Hypothesis 2 expresses that franchisee transaction-specific investment on the relationship with the franchisor will positively affect opportunism. Hypothesis 3 asserts that franchisee dependency on the franchisor will positively affect opportunism. All of these were supported. However, Hypothesis 4, maintaining that franchisee competitive intensity will positively affect opportunism, was not supported. The theoretical and practical implications of this study are as follows. This study has identified the antecedents of franchisor opportunism that causes conflict in the franchise system by comprehensively applying the transaction cost theory and power-dependency theory. This study can also identify what a company should manage specifically to lower opportunism by identifying the antecedents of franchisor opportunism in the franchise system. The limitations of this study and the directions for future studies are as follows. First, not all of the antecedents of franchisor opportunism in the franchise system have been extensively investigated from the transaction cost theory's and power-dependency theory's viewpoint. In the future, it is necessary to identify additional factors. Second, the study was conducted only from the franchisee's perspective. In future studies, more accurate research results can be obtained by simultaneously examining the franchisee's point of view and the franchisor's point of view.