• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.36
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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.

• Journal of Arbitration Studies
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• v.24 no.1
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• pp.25-44
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• 2014

Conflict between transnational environmental issues and foreign investment in capital-importing states can be commonly found. Actually, several investor-state dispute arbitration cases like Bilcon v. Canada, S.D. Myers v. Canada, and Metalclad v. Mexico concerned environmental matters. States are worried about their measures for securing the environment might be deemed to go against international investment agreements and foreign investors also are anxious because of excessive regulations. Against this backdrop, stakeholders attempt to strike a balance between securing foreign investment and preserving the environment. This article argues that the investment chapter of the Korea-US FTA tries to solve environment-investment collision in investor-state disputes. Before analyzing the provisions of the investment chapter most relevant to environmental issues, this article points out the most typical types of environmental clauses included in international investment agreements. The investment chapter of the Korea-US FTA has provisions which effectively prevent measures from becoming useless when those measures are legitimate measures relevant to environmental matters. This does not mean that the Korea-US FTA completely solves the conflict between environmental issues and the protection of foreign investment, but still it paves the way for a prudent solution which would hash out this thorny problem.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.201-216
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• 2018

After the adoption of the Lisbon Treaty, the European Union's Common Commercial Policy now belongs to the exclusive competence area of the EU, including the foreign direct investment (FDI) policy. Regarding the bilateral investment protection treaties (BITs) between the EU Member States, the European Commission is of the view that such BITs should be discarded. On March 6, 2018, the Court of Justice of the European Union (CJEU) held in the Achmea BV v. Slovakia case that a BIT between the EU Member States, as well as arbitral awards based on that BIT, is not subject to request for preliminary rulings under the Treaty on the Functioning of the European Union (TFEU), and thus they are not compatible with the EU law. However, the judgment did not silence the controversy. Instead, many people questioned the legal reasoning and the legitimacy of judgment, and therefore the problem is still ongoing.

• Knowledge Management Research
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• v.24 no.3
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• pp.73-94
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• 2023

With the virtual asset market's rapid growth, government regulations on listing and trading procedures are expected. However, specific measures are currently lacking. To ensure stable inclusion in the institutional framework, precise regulations are needed for market development and investor protection. This study compares self-regulatory guidelines of the top domestic virtual asset exchanges with Korea Exchange's Preliminary Listing Examination Standards (2022) to enhance timeliness and relevance. It defines IEO, IPO, and ICO concepts and addresses conflicts of interest in IEO. Analyzing delisted virtual assets, it categorizes issues and classifies listing examination guidelines into formal and qualitative requirements. The study examines self-regulatory guidelines based on continuity, transparency, stability, corporate characteristics, and investor protection criteria, along with five special requirements for virtual assets. Improvement measures include regular disclosures of governance structure, circulation volume, and the establishment of independent audit institutions. This research further analyzes delisting cases, classifies issues, and proposes solutions. Considering stock market similarities, it offers measures based on the institutional framework.

• Journal of Arbitration Studies
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• v.24 no.2
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• pp.33-52
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• 2014

Although climate change is a global scale question, some concerns have been raised that principles of investment arbitration may not adequately address the domestic implementation of climate change measures. A recent ICSID investment arbitration of Vattenfall v. Germany with regard to the investor's alleged damages from the phase-out of nuclear plants is a salient climate change case. The 2005 Kyoto Protocol was made to reduce greenhouse gas emissions and it provides a number of flexible mechanisms such as Joint Implementation (JI) and Clean Development Mechanism (CDM). Implementation of the Kyoto Protocol allows dispute settlement through investor-state arbitration. Any initiation of stricter emission standards can violate the prohibition on expropriations in investment agreements, regardless of the measures created to reduce greenhouse gas emissions. The effect-based expropriation doctrine can charge changes to existing emission standards as interference with the use of property that goes against the legitimate expectation of a foreign investor. In regulatory chill, threat of investor claims against the host state may preclude the strengthening of climate change measures. Stabilization clauses also have a freezing effect on the hosting state's regulation and a new law applicable to the investment. In the fair and equitable standard, basic expectations of investors when entering into earlier carbon-intensive operations can be affected by a regulation seeking to change into a low-carbon approach. As seen in the Methanex tribunal, a non-discriminatory and public purpose of environmental protection measures should be considered as non-expropriation in the arbitral tribunal unless its decision would intentionally impede a foreign investor's investment.

• Journal of Distribution Science
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• v.12 no.10
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• pp.5-9
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• 2014

Purpose - This paper aims to critically examine capital market developments in India before and after liberalization. Research design, data, and methodology - The paper examines the Indian capital market from its inception to the latest developments related to both primary and secondary markets, and also discusses recent initiatives of capital markets to enhance the expected level of services to the investor community. It also sheds light on the regulatory framework for investor protection. Results - The study further highlights the future roadmap for the radical development of the Indian capital market. The paper identifies the various initial obstacles and intricacies that affect the smooth functioning of the Indian capital markets. Hence, the paper articulates that these concerns should be addressed by the regulatory authorities and at the policy level at the earliest for further strengthening the capital markets in the interests of the economy in general and retail investors in particular. Conclusion - This is a topic of utmost contemporary importance to worldwide national economies, and calls for novel methods and techniques in dealing effectively with the menace facing capital markets.

• Smart Media Journal
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• v.11 no.5
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• pp.63-74
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• 2022

Initial public offering (IPO) has a legal framework for investor protection, and because there are various quantitative evaluation factors, objective analysis is possible, and various studies have been conducted. In addition, crowdfunding also has several devices to prevent indiscriminate funding as the legal system for investor protection. On the other hand, the blockchain-based cryptocurrency white paper (ICO), which has recently been in the spotlight, has ambiguous legal means and standards to protect investors and lacks quantitative evaluation methods to evaluate ICOs objectively. Therefore, this study collects online-published ICO white papers to detect fraud in ICOs, performs ICO fraud predictions based on BERT, a text embedding technique, and compares them with existing Random Forest machine learning techniques, and shows the possibility on fraud detection. Finally, this study is expected to contribute to the study of ICO fraud detection based on quantitative methods by presenting the possibility of using a quantitative approach using unstructured data to identify frauds in ICOs.

• Journal of Korea Trade
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• v.23 no.7
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• pp.83-95
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• 2019

Purpose - This study analyzed the effect of the Trump Government's protectionist trade policies on foreign ownership. Specifically, this study empirically analyzes the hypothesis that foreign ownership will decrease after the Trump Government rather than before the Trump Government. Design/methodology - The hypothesis of this study is based on the expectation that US protection trade policy will negatively affect the profitability of Korean companies. The dependent variable in this study is the foreign ownership ratio, and the independent variable is a dummy variable representing before and after the Trump Government. Multiple regression analysis was performed, including the control variables suggested in previous studies related to foreign ownership. Findings - As a result, foreign ownership increased after the Trump Government rather than before the Trump Government. This study further analyzes whether the main variables affecting foreign investor's decision-making are differences before and after Trump Government. The export ratio, profitability and dividends did not differ before and after Trump Government. However, the level of information asymmetry decreased after the Trump Government than before the Trump Government. This suggests that US protection trade policies do not adversely affect the profitability of Korean companies. However, Korean firms are improving their information environment because US protectionist trade policies can lower profitability and negatively impact capital raising. In this regard, the foreign ownership ratio seems to differ before and after the Trump Government. Originality/value - This study contributes in that it presents data that US protectionist policies can affect Korean corporate governance. This study has implications from the short-term analysis of US protection trade policy.

• Journal of Arbitration Studies
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• v.23 no.3
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• pp.127-147
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• 2013

Korea is, after China, the Asian country with the largest number of concluded investment treaties. One of the protections that Korean investment treaties frequently afford to foreign investors and their investment is the so-called "umbrella clause," which requires the host state of the investment to observe the commitments that it has undertaken toward the foreign investor or its investment. This is a potentially very powerful protection. Umbrella clauses, however, have proven to be amongst the most controversial provisions in investment treaties, giving rise to diverging interpretations by tribunals and commentators that are still not reconciled today.

• 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.