• Journal of Arbitration Studies
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• v.19 no.2
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• pp.95-126
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• 2009

One of the controversial issues in investor-state investment arbitration is the interpretation of "umbrella clause" that is found in most BIT and FTAs. This treaty clause requires on Contracting State of treaty to observe all investment obligations entered into with foreign investors from the other Contracting State. This clause did not receive in-depth attention until SGS v. Pakistan and SGS v. Philippines cases produced starkly different conclusions on the relations about treaty-based jurisdiction and contract-based jurisdiction. More recent decisions by other arbitral tribunals continue to show different approaches in their interpretation of umbrella clauses. Following the SGS v. Philippines decision, some recent decisions understand that all contracts are covered by umbrella clause, for example, in Siemens A.G. v. Argentina, LG&E Energy Corp. v. Argentina, Sempra Energy Int'l v. Argentina and Enron Corp. V. Argentina. However, other recent decisions have found a different approach that only certain kinds of public contracts are covered by umbrella clauses, for example, in El Paso Energy Int'l Co. v. Argentina, Pan American Energy LLC v. Argentina and CMS Gas Transmission Co. v. Argentina. With relation to the exhaustion of domestic remedies, most of tribunals have the position that the contractual remedy should not affect the jurisdiction of BIT tribunal. Even some tribunals considered that there is no need to exhaust contract remedies before bringing BIT arbitration, provoking suspicion of the validity of sanctity of contract in front of treaty obligation. The decision of the Annulment Committee In CMS case in 2007 was an extraordinarily surprising one and poured oil on the debate. The Committee composed of the three respected international lawyers, Gilbert Guillaume and Nabil Elaraby, both from the ICJ, and professor James Crawford, the Rapportuer of the International Law Commission on the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, observed that the arbitral tribunal made critical errors of law, however, noting that it has limited power to review and overturn the award. The position of the Committee was a direct attack on ICSID system showing as an internal recognition of ICSID itself that the current system of investor-state arbitration is problematic. States are coming to limit the scope of umbrella clauses. For example, the 2004 U.S. Model BIT detailed definition of the type of contracts for which breach of contract claims may be submitted to arbitration, to increase certainty and predictability. Latin American countries, in particular, Argentina, are feeling collectively victims of these pro-investor interpretations of the ICSID tribunals. In fact, BIT between developed and developing countries are negotiated to protect foreign investment from developing countries. This general characteristic of BIT reflects naturally on the provisions making them extremely protective for foreign investors. Naturally, developing countries seek to interpret restrictively BIT provisions, whereas developed countries try to interpret more expansively. As most of cases arising out of alleged violation of BIT are administered in the ICSID, a forum under the auspices of the World Bank, these Latin American countries have been raising the legitimacy deficit of the ICSID. The Argentine cases have been provoking many legal issues of international law, predicting crisis almost coming in actual investor-state arbitration system. Some Latin American countries, such as Bolivia, Venezuela, Ecuador, Argentina, already showed their dissatisfaction with the ICSID system considering withdrawing from it to minimize the eventual investor-state dispute. Thus the disagreement over umbrella clauses in their interpretation is becoming interpreted as an historical reflection on the continued tension between developing and developed countries on foreign investment. There is an academic and political discussion on the possible return of the Calvo Doctrine in Latin America. The paper will comment on these problems related to the interpretation of umbrella clause. The paper analyses ICSID cases involving principally Latin American countries to identify the critical legal issues arising between developing and developed countries. And the paper discusses alternatives in improving actual investor-State investment arbitration; inter alia, the introduction of an appellate system and treaty interpretation rules.

• The Korean Journal of Air & Space Law and Policy
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• v.29 no.2
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• pp.239-272
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• 2014

The rights and obligations of the Member States of ITU in the domain of international frequency management of the spectrum/orbit resource are incorporated in the Constitution and Convention of the ITU and in the Radio Regulations that complement them. These instruments contain the main principles and lay down the specific regulations governing the major elements such as rights and obligations of member administrations in obtaining access to the spectrum/orbit resource, as well as international recognition of these rights by recording frequency assignments and, as appropriate, any associated orbits, including the geostationary-satellite orbits used or intended to be used in the Master International Frequency Register (MIFR) Coordination is a further step in the process leading up to notification of the frequency assignments for recording in the MIFR. This procedure is a formal regulatory obligation both for an administration seeking to assign a frequency in its network and for an administration whose existing or planned services may be affected by that assignment. Regulatory problem lies in allowing administrations to fulfill their "bringing into use" duty for preserving his filing simply putting any satellites, whatever nationlity or technical specification may be, into filed orbit. This sort of regulatory lack may result in the emergence of the secondary market for satellite orbit. Within satellite orbit secondary market, the object of transaction may be the satellite itself, or the regulatory rights in rem, or the orbit registered in the MIFR. Recent case of selling the Koreasat belongs to the typical example of orbit transaction between private companies, the legality of which remains doubtedly controversial from the perspective of international space law as well as international transaction law. It must be noted, however, that the fact is the Koreasat 3 and its filed orbit is for sale.

• Korean Journal of Occupational Health Nursing
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• v.6 no.1
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• pp.23-43
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• 1997

The work-related diseases due to continuous overwork are mainly cerebro- and cardio-vascular ones, which is commonly called 'Karoshi', death from overwork. Many factors are capable for Karoshi : occupational stress in relation to technological renovation and industrial rationalization, competitive social structure, and accumulated fatigue accured to long time or irregular working. And its occurence is on the rise. The World Labor Report 1993 released by ILO, pointed out the diseases related to overwork and stress as one of the most important occupational health problem. In Korea, social awareness of Karoshi is at an infant stage, and reliable statistics for its occurence are not compiled in a convenient manner. Despite the rising Karoshi, there are no reliable clauses in workmen's compensation enough to settle down the disputes. Therefore, it is not uncommon that the Labour Ministry and Civil Court find difficulties in reaching an agreement. This study was intended to provide proper compensation and prevention program for workers by suggesting reasonable compensation clauses for the death from overwork. This study consists of two comparative reviews on the compensaton clauses for the death from overwork. One is to review legal standards of Karoshi among three countries, such as Korea, Japan and Taiwan. The other is to investigate the cases of Karoshi in Korea, 121 cases identified at the Labor Welfare Corperation and the Labour Ministrial process of examination and reexamination, and 73 leading cases at the High Court of Justice. The main findings of the study are as follows : 1. Comparisons of comperative review on compensation clauses for the death from overwork among three countries. 1) All of three countries have the same kinds of disease for compensation, which were cerebro-and cardiao-vascular diseases, while for cardiac disease group, Korea has the smaller number of diseases for compensation than Japan. 2) As for the definition of overwork, the three countries share equally that overload for one week prior to collapse is considered as an important factor, but accumulated chronic fatigue is disregarded. 3) As the basis of overwork, in Japan, there is a tendency to move from the conditions of an ordinary healthy adult to those of the individual concerned in Japan, whereas there is no such concern yet in Korea. 4) All the three countries use a common standard of medical judgement in demonstrating causal relationship between a job and a disease. However, Korea is progressive in the sense that in the case of CVA at worksite, the worker himself has no obligation to prove the cause. 2. The results of a comparative review on excutive decisions by Labor Ministry and judicial decisions by the Court in Korea : A judicial decision is based on the legalistic probability, but a excutive decision is not. Therefore, excutive decisions have such restrictions that : 1) TIA (transitory ischemic cerebral attack) and myocarditis are excluded from compensation, and there is little consistency of decision in the case of cause-unknown death. 2) There is a tendency not to compensate for the death from overwork since the work terms such as repeated long-time working, shift work or night-shift work are not considered as overloading. 3) There is a tendency to regard the conditions of a ordinary healthy adult rather than those of the individual concerned(age, existing diseases, health state, etc.) as the comparative basis of overload. 4) There remains a tendency not to compensate for the death from overwork in the case of collapse occuring out of workplace, on the ground of 'on the course of working' and 'in the cause of accident'. Through the study, the fact manifests itself that Korea's compensation clauses for work-related diseases due to overwork are very restrictive. So, it is necessary to extend the Labor Ministry's clauses of compensation for the death from overwork following to the recent changes of other countries and internal judicial decisions. This is very important in the perspective of occupational health that aims at health promotion of workers including prevention of the Karoshi.

• Ocean and Polar Research
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• v.37 no.4
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• pp.341-356
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• 2015

A nation has a sovereign right to develop and use its natural resources according to its policies with regard to development and the relevant environment. A nation also has an obligation not to harm other countries or damage environments of neighboring countries as consequences of such actions of developments or use of natural resources. However, international precedents induce a nation to take additional actions not to cause more damages from the specific acts causing environmental damages beyond national borders, when such acts have economic and social importance. That is to say that there is a tendency to resolve such issues in a way to promote the balance between the mutual interests by allowing such actions to continue. A solution to China's Three Gorges Dam dilemma based on a soft law approach is more credible than relying on a good faith approach of national responsibilities and international legal proceedings since the construction and operation of the dam falls within the category of exercising national sovereign rights. If a large scale construction project such as the Three Gorges Dam or operation of a nuclear power plant causes or may cause environmental damage beyond the border of a nation engaged in such an undertaking, countries affected by this undertaking should jointly monitor the environmental effects in a spirit of cooperation rather than trying to stop the construction and should seek cooperative solutions of mutual understanding to establish measures to prevent further damages. If China's Three Gorges Dam construction and operation cause or contain the possibility of causing serious damages to marine environment, China cannot set aside its national responsibility to meet international obligations if China is aware of or knows about the damage that has occurred or may occur but fail to prevent, minimize, reverse or eliminate additional chances of such damages, or fails to put in place measures in order to prevent the recurrence of such damages. However, Korea must be able to prove a causal relationship between the relevant actions and resulting damages if it is to raise objections to the construction or request certain damage-prevention actions against crucial adverse effects on the marine environment out of respect for China's right to develop resources and acts of use thereof. Therefore, it is essential to cumulate continuous monitoring and evaluations information pertaining to marine environmental changes and impacts or responses of affected waters as well as acquisition of scientific baseline data with observed changes in such baseline. As China has adopted a somewhat nonchalant attitude toward taking adequate actions to protect against marine pollution risks or adverse effects caused by the construction and operation of China's Three Gorges Dam, there is a need to persuade China to adopt a more active stance and become involved in the monitoring and co-investigation of the Yellow Sea in order to protect the marine environment. Moreover, there is a need to build a regular environmental monitoring system that includes the evaluation of environmental effects beyond borders. The Espoo Convention can serve as a mechanism to ease potential conflicts of national interest in the Northeast Asian waters where political and historical sensitivities are acute. Especially, the recent diplomatic policy advanced by Korea and China can be implemented as an important example of gentle cooperation as the policy tool of choice is based on regional cooperation or cooperation between different regions.

• Asia pacific journal of information systems
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• v.17 no.2
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• pp.49-81
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• 2007

Research in the IS (Information Systems) outsourcing has focused on the importance of legal contracts and partnerships between vendors and clients. Without detailed legal contracts, there is no guarantee that an outsourcing vendor would not indulge in self-serving behavior. In addition, partnerships can supplement legal contracts in managing the relationship between clients and vendors legal contracts by itself cannot deal with all the complexity and ambiguity involved with IS outsourcing relationships. In this paper, we introduce a psychological contract (between client and vendor) as an important variable for IS outsourcing success. A psychological contract refers to individual's mental beliefs about his or her mutual obligations in a contractual relationship (Rousseau, 1995). A psychological contract emerges when one party believes that a promise of future returns has been made, a contribution has been given, and thus, an obligation has been created to provide future benefits (Rousseau, 1989). An employmentpsychological contract, which is a widespread concept in psychology, refers to employer and employee expectations of the employment relationship, i.e. mutual obligations, values, expectations and aspirations that operate over and above the formal contract of employment (Smithson and Lewis, 2003). Similar to the psychological contract between an employer and employee, IS outsourcing involves a contract and a set of mutual obligations between client and vendor (Ho et al., 2003). Given the lack of prior research on psychological contracts in the IS outsourcing context, we extend such studies and give insights through investigating the role of psychological contracts between client and vendor. Psychological contract theory offers highly relevant and sound theoretical lens for studying IS outsourcing management because of its six distinctive principles: (1) it focuses on mutual (rather than one-sided) obligations between contractual parties, (2) it's more comprehensive than the concept of legal contract, (3) it's an individual-level construct, (4) it changes over time, (5) it affects organizational behaviors, and (6) it's susceptible to organizational factors (Koh et al., 2004; Rousseau, 1996; Coyle-Shapiro, 2000). The aim of this paper is to put the concept, psychological contract commitment (PCC), under the spotlight, by finding out its mediating effects between legal contracts/partnerships and IS outsourcing success. Our interest is in the psychological contract commitment (PCC) or commitment to psychological contracts, which is the extent to which a partner consistently and deeply concerns with what the counter-party believes as obligations during the IS project. The basic premise for the hypothesized relationship between PCC and success is that for outsourcing success, client and vendor should continually commit to mutual obligations in which both parties believe, rather than to only explicit obligations. The psychological contract commitment playsa pivotal role in evaluating a counter-party because it reflects what one party really expects from the other. If one party consistently shows high commitment to psychological contracts, the other party would evaluate it positively. This will increase positive reciprocation efforts of the other party, thus leading to successful outsourcing outcomes (McNeeley and Meglino, 1994). We have used matched sample data for this research. We have collected three responses from each set of a client and a vendor firm: a project manager of the client firm, a project member from the vendor firm with whom the project manager cooperated, and an end-user of the client company who actually used the outsourced information systems. Special caution was given to the data collection process to avoid any bias in responses. We first sent three types of questionnaires (A, Band C) to each project manager of the client firm, asking him/her to answer the first type of questionnaires (A).

• Journal of Korean Society of Transportation
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• v.23 no.3 s.81
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• pp.21-34
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• 2005

To control the obstacles surrounding aerodrome is significant for preventing air accident and ensuring the long sustaining of aerodromes. On the other hand, within a scope of ensuring safe flight operations, the application of Shielding is one of the issues to be importantly considered to manage efficiently the obstacles limitation around aerodromes, to dissolute the private asset privilege limitation from regulation on aerodrome circumference, and to decrease the pains to manage the obstacles, in terms of not only operating safely but also utilizing efficiently the airspace around aerodromes. The ICAO and other aviation-advanced states mitigate the construction limitation or exempt the obligation of obstacle sign by applying the shielding theory that the obstacles are not regarded as obstacles where are below the shadow surface. The Republic of Korea inserted the new regulation including the applying shielding similar to ICAO on Aviation Act and regulations. It is, however, hard to manage the aviation obstacles around aerodrome efficiently with these new regulation. Particularly, there exists much rooms to dispute because it cannot suggest the specific standard which is necessary to apply shielding theory at airspace of aerodromes. Therefore, in this study, the international standards on aviation obstacles were reviewed, analyzed and compared with those of domestic status. The direction of which guideline for control of aeronautical obstacles applicable within domestic circumstances as well as correspondent with international standard was suggested. Particularly, as far as the disputable application of shielding theory is concerned, the alternatives for aviation safety and efficient airspace operation by suggesting the clear standards alternatives were suggested.

• Journal of Hospice and Palliative Care
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• v.5 no.1
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• pp.17-23
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• 2002

Purpose : The prevalence of symptoms in patients with terminal cancer varies considerably and these symptoms are very difficult to control. However, patients can spend their last days or hours of life without suffering pain with appropriate care. One of the major concerns during last days of life is to predict the time of death. We would like to investigate symptom prevalence during terminal cancer patients' last 48 hours in Korea, and therefore contribute to predict the time of death and to help to determine appropriate treatments. Methods : The data for this study was recorded from 92 of 132 patients who died with terminal cancer at the hospital between February 1 and October 31, 2000. We investigated the symptom prevalence during the last 48 hours through medical obligation record and analyzed the changes of symptom prevalence at the admission, $48{\sim}24$ hours and $24{\sim}0$ hours before death. Results : The predominant symptom prevalence was pain (57.6%), followed by confusion (55.4%), dyspnea (48.9%), voiding difficulty (42.4%) in the last 48 hours before death. From the statistical analysis for the changes of symptom prevalence in time, pain, nausea and vomiting were decreased but noisy and moist breathing, sweating, groan, restlessness and agitation, and loss of consciousness were increased (P<0.05). Conclusion : The results from this study show the tendency to increase of prevalence of noisy and moist breathing, sweating, groan, restlessness and agitation as well as loss of consciousness in 48 hours before death. Therefore the symptoms above can be used for the important indicators to predict the imminent death.

• Archives of design research
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• v.12 no.1
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• pp.145-154
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• 1999

With the introduction of digital technology since the late 1970s, we have been shifting from the industrial era into the information age. New communication systems have changed our concept of reality. Korea has a wealthy communication heritage with its own language and alphabet. However, Korean typography today has struggled to keep its originality, and does not hold up well to international standards. Korean contemporary typography is not efficient for communicating. It is not orderly, organised and simple. It has currently become complicated and decorative. Moreover, many young designers are attracted by imitations of western trends. It is now time for Korea to reveal its own identity. How can it develop a new typographic language that is more sympathetic to Korean tradition\ulcorner How will Korean information design produce a contemporary style with international relevance that contributes to world culture\ulcorner This thesis will be developed a new Korean typographic language that relies more on Korean traditions. Simultaneously, in this thesis will be examined Swiss typography as a relevant style for a new Korean typography to incorporate. Swiss typography maintained a similar philosophy to Korean tradition with its emphasis on clarity and simplicity. This study will be explored the potential of creating a contemporary Korean typographic solution which combines the traditions of Korea with the clarity of Swiss typography. The first attitude of the new typographic language should focus on legibility. The second condition of the new typographic philosophy based on the ability of designers is interpretation of context. The third concept of the new language is founded on an objective, rational design attitude. The final mental attitude of the new typographic language should feel a deep obligation to traditions. It is crucial time for Korean alphabet to establish a relevant standard rather than goes uncritically with the international current. Korea has had worthy traditions. It is suggested that the answers to 'good design' lie in the study of Korea's own history. Simultaneously, the research of Swiss design which is a

• The Korean Journal of Air & Space Law and Policy
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• v.30 no.2
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• pp.249-277
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• 2015

Regulation (EC) No 261/2004 ("Regulation") is a common rule on compensation and assistance to passengers in the event of denied boarding and of cancellation or long delay of flights. In some recent cases of European nations, passengers sued the air carrier in order to obtain monetary compensation under Article 7(1) of the Regulation. Some courts dismissed the actions on the grounds that, unlike denied boarding or cancellation of the flight, the Regulation provides no compensation in relation to delayed flights. However, Court of Justice of the European Union(CJEU) ruled that Regulation 261/2004 must be interpreted to mean that passengers whose flights are delayed have a right to compensation in cases when the loss of time is equivalent to, or is in excess of three hours - where the passengers eventually reached their final destination three hours or more later than the originally scheduled arrival time. It is true that a strict interpretation of the regulation would suggest that passengers whose flight has merely been delayed are not entitled to compensation. They should only be offered assistance in accordance with the Articles 6 and 9. Nevertheless, the Court recognized the same right to the same compensation for passengers of flights delayed by more than three hours as that explicitly provided for passengers of cancelled flights. On the one hand, the Court bases this ruling on the recitals of the Regulation, in which the legislature links the question of compensation to that of a long delay, while indicating that the Regulations seek to ensure a high level of protection for passengers regardless of whether they are denied boarding or their flight is cancelled or delayed. On the other hand, the Court interprets the relevant provisions of the Regulation in light of the general principle of equal treatment. Furthermore, the Court delivered a ruling that the loss of time inherent in a flight delay, which constitutes an inconvenience within the intention of Regulation No 261/2004 and which cannot be categorized as 'damage occasioned by delay' within the meaning of Article 19 of the Montreal Convention, cannot come within the scope of Article 29 of that convention. Consequently, under this view, the obligation under Regulation No 261/2004 intended to compensate passengers whose flights are subject to a long delay is in line with Article 29 of the Montreal Convention. Although the above interpretation of the Court can be a analogical interpretation, the progressive attitude of the Regulation and the view of Court forward to protect passengers' interest is a leading role in the area of international air passenger transportation. Hopefully, after the model of the positive support in Europe, Korea can establish a concrete rule for protecting passengers' right and interest.

• The Korean Journal of Air & Space Law and Policy
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• v.33 no.1
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• pp.227-260
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• 2018

Recently, as the use of drones increases, the risk of drone accidents and third-party property damage is also increasing. In Korea, due to the recent increase in drone use, accidents have been frequently reported in the media. The number of reports from citizens, and military and police calls regarding illegal or inappropriate drone use has also been increasing. Drone operators may be responsible for paying damages to third parties due to drone accidents, and are liable for paying settlements due to illegal video recording. Therefore, it is necessary to study the idea of providing drone insurance, which can mitigate the liability and risk caused by drone accidents. In the US, comprehensive housing insurance covers damages caused by recreational drones around the property. In the UK, when a drone accident occurs, the drone owner or operator bears strict liability. Also, in the UK, drone insurance joining obligation depends on the weight of the drones and their intended use. In Germany, in the event of personal or material damage, drone owner bears strict liability as long as their drone is registered as an aircraft. Germany also requires by law that all drone owners carry liability insurance. In Korea, insurance is required only for "ultra-light aircraft use businesses, airplane rental companies and leisure sports businesses," where the aircraft is "paid for according to the demand of others." Therefore, it can be difficult to file claims for third party damages caused by unmanned aerial vehicles in personal use. Foreign insurance companies are selling drone insurance that covers a variety of damages that can occur during drone accidents. Some insurance companies in Korea also have developed and sell drone insurance. However, the premiums are very high. In addition, drone insurance that addresses specific problems related to drone accidents is also lacking. In order for drone insurance to be viable, it is first necessary to reduce the insurance premiums or rates. In order to trim the excess cost of drone insurance premiums, drone flight data should be accessible to the insurance company, possibly provided by the drone pilot project. Finally, in order to facilitate claims by third parties, it is necessary to study how to establish specific policy language that addresses drone weight, location, and flight frequency.