• Journal of Arbitration Studies
• /
• v.22 no.2
• /
• pp.31-52
• /
• 2012

Although political uncertainty exists between China and Taiwan, the two countries have been expanding their economic exchange since the 1980s. That economic exchange is not limited to trade, and its investment segment is constantly expanding. The investment was one-sided by Taiwan in the past, but since a change in policy by the Taiwan government in 2009, Chinese capital is able to flow into Taiwan for direct investment. These kinds of policy changes related to investment between the two countries require follow-up actions such as profit protection for investors, elimination of investment limitations, simplification of investment procedures, and establishment of an investment dispute resolution system. The main topic of this study is the resolution mechanism for investment disputes between China and Taiwan. At present, an individual investment dispute between two countries is settled according to each country's own regulations for dispute resolution. However, these two countries have not prepared dispute resolution regulations related to cases of investment disputes between Chinese or Taiwanese investors and the Chinese or Taiwanese government, or between the Chinese government and the Taiwanese government. Moreover, they do not have any agreements related to investment disputes. Therefore, in this paper, I enumerate the regulations related to investment dispute resolution between China and Taiwan, and then I point out the problems and suggest solutions for improvement. Also, through this study, I would like to contribute to establishing and implementing an investment dispute resolution mechanism between South Korea and North Korea.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.68
• /
• pp.89-121
• /
• 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.

• Journal of Arbitration Studies
• /
• v.17 no.2
• /
• pp.141-165
• /
• 2007

This study aims to make a contribution to the promotion of trade and economic development of South Korea, and, at the same time, call attention to the increasing trend of investment agreements concluded within Free Trade Agreements (FTA) by examining theoretically FTAs and dispute resolution and investigating systematically the conclusion procedure of agreements, and the system, institutions, and jurisdiction of dispute resolution, and presenting these findings to the government and investors involved. The most problematic aspect in the legal process of arbitration involving disputes over investment is that of arguments concerning the right of jurisdiction. When a dispute arises, even though an investor files for arbitration at an ICSID institution, the parties become involved in another energy-consuming argument even before proceeding to the hearing and decision of the original plan in cases in which the respondent of the dispute files an objection to the decision rights of the arbitral tribunal. As the main basis for this type of plea, the point of non-existence of jurisdiction is first raised where the applicable dispute does not fall under the range of investments defined in individual investment contracts or investment agreements such as a Bilateral Investment Treaty (BIT). To avoid an open-ended definition of investment for the range of investments, articles concerning investments in the FTA and NAFTA between Canada and the USA adopt the limited closed-list method. Article 96 of the FTA between Japan and Mexico applied the same abovementioned method of limited form of definition regarding range of investments and concluded BITs between member countries of APEC applied a similar method as well. Instead of employing the previously used inclusive definition, the BITs concluded between countries of Latin America and the USA are equipped with limited characteristics of an investment. Furthermore, to correspond with this necessary condition the three following requirements are needed : 1) fixed investment funding; 2) expected profits resulting from such investments; 3) and the existence of fixed risk bearing.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
• /
• v.68
• /
• pp.123-148
• /
• 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.

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

• Korea Trade Review
• /
• v.42 no.4
• /
• pp.139-157
• /
• 2017

Whether an investor can invoke a dispute settlement procedure stipulated in other BIT based on the MFN clause in the original BIT is an important issue. There is a difference in the interpretation of MFN clause in which the scope of the treatment stipulates the slightly different contents for each investment treaty. Therefore, this study considered ICSID arbitration cases related to the applicability of MFN clause for investment dispute settlement provisions. There are two different approaches for the applicability of MFN clause by arbitral tribunals. At first, the expanded interpretation of the MFN clause can be applied to procedural regulations, in that the purpose of the investment treaty is to protect foreign investors and to ensure their status. So, foreign investors can invoke a BIT of a third country that is advantageous to them. Second, the limited interpretation of the MFN clause can not be applied to procedural regulations. Without explicit regulation, the term treatment can not be considered to include dispute resolution provisions. And the BIT that the host state has concluded with third country is a treaty that applies only to the contracting party, so it can not be used by foreign investors of other nationality. Therefore, this study suggests concretely stipulating the scope of MFN clause under the investment treaty, highlighting that certain restrictions should be applied to the MFN clause. Furthermore, it is required continually investigating and analyzing the database of the scope of MFN clause.

• Journal of Arbitration Studies
• /
• v.25 no.1
• /
• pp.65-86
• /
• 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
• /
• v.29 no.2
• /
• pp.3-34
• /
• 2019

The resumption of economic cooperation between South and the North Korea will be a new growth engine for our economy. Many Korean companies are preparing to invest in North Korea in accordance with the progress of inter-Korean relations. However, there are many risks inherent in inter-Korean economic cooperation, as experienced in previous cases. Specifically, one should be prepared for unfair measures such as the expropriation of investment assets of South Korean enterprises by North Korea authorities. Therefore, it is essential to review the protection measures of investment in North Korea and to review the investment dispute settlement system. The South and the North have an agreement to establish the inter-Korean Commercial Arbitration Committee to resolve the disputes that may arise if one party's investments are lost due to inappropriate or unfair measures due to the other party's authority. However, the Investment Agreement, which governs the Inter-Korean Commercial Arbitration Committee, contains a number of declarative statements that are somewhat ineffective. Even today, nearly 20 years after the adoption of the Agreement, the specific detailed procedures have shown no real progress, such as in the enactment of arbitration rules. Therefore, at present, it is difficult to expect a system that can effectively address the damage of our corporations which have invested in North Korea. When the assets freeze after the suspension of Kumgang tourism and the closure of the Kaeseung Industrial Complex by North Korea, the activation of the inter-Korean Commercial Arbitration Committee is the most important prerequisite for economic cooperation with North Korea. For this purpose, the resolution of disputes through the Inter-Korean Commercial Arbitration Committee has to be made more concrete, with the effectiveness of the dispute settlement system enhanced by means of various efforts.

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

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