• Journal of Arbitration Studies
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• v.29 no.4
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• pp.33-55
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• 2019

This study is aimed at drawing up improvement measures in connection with the resolution of claims, one of the major constraints in revitalizing South-North Korean economic cooperation. To that end, we first looked at the structure of South-North Korean economic cooperation and the institutional status related to resolving the claims. Also we analyzed the current status of the claims in the process of promoting South-North Korean economic cooperation by companies and the provisions of the claims between the parties in order to derive any problems. Through these research results, we were able to identify directions and implications for efficient improvement of the causes of several South-North Korean economic cooperation claims. First, at the corporate level, there is a need to create specific details of a contract for resolving disputes and to add additional third-party coordination functions in the relevant clause of the contract in preparation for the occurrence of a dispute. In addition, it is necessary to seek ways to advance jointly with corporations in China and other third countries in order to secure stability. Second, the government should continue to discuss ways of promoting South-North Korean commercial arbitration with North Korea so that follow-up measures can be completed as soon as possible. In addition, a two-track strategy is suggested to provide a practical negotiation channel at the private level. Also it is necessary to be active in persuading North Korea to join the international arbitration treaty in preparation for the activation of full-fledged economic exchanges.

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

• Journal of Arbitration Studies
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• v.19 no.2
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• pp.49-72
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• 2009

Korea Fair Trade Commission (KFTC), one of the Government agencies, has been preparing a standard model form of Exclusive Contract for Entertainment Management (hereinafter referred to as "Exclusive Contract") to eliminate some types of unfairness that placed entertainers at disadvantage such as forced PR activities or activities without payment, excessive privacy infringement, and exemption of payment after the termination of the exclusive contract. The said Exclusive Contract was drafted by The Korean Commercial Arbitration Board (the "KCAB") in association with the Korean Entertainment Law Society (the "KELS") and KCAB has persistently persuaded Corea Entertainment Management Association (the "CEMA"; mainly actors management) and Korea Entertainment Producers' Association (the "KEPA"; mainly singers management) to adopt the above-mentioned Exclusive Contract, respectively, and especially arbitration clause instead of litigation. After KCAB's tens of meetings and persuasion, they finally decided to accept KCAB's offer and they have submitted the Exclusive Contract drafted by KCAB and KELS to KFTC on April 17, 2009. The arbitration clause drafted by KCAB was already accepted by unfair contract examination division and unfair contract advisory committee and the final standard model contract was supposed to be publicly announced on June 30, 2009 after final examination of unfair contract standing committee, but the announcement has been delayed owing to severe controversies between the concerned parties, such as CEMA, KAU (Korea Artists' Union), KEPA and KSA (Korea Singers' Association) related to delicate issues like contract period and ownership of intellectual properties, etc. But it is expected the announcement will be made very soon by which the contract will include the originally drafted arbitration clause by KCAB. Therefore, it is very timely to examine the various legal issues which can be arisen out of disputes, and arbitration appropriateness with Exclusive Contract of Entertainment Management on this paper.

• Journal of Arbitration Studies
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• v.31 no.3
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• pp.3-23
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• 2021

England is a significant base for international trade in Europe, and dispute resolution through arbitration is active. Therefore, due to the geographical relationship with the European continent, the settlement of trade transactions and disputes with European countries is one of the most essential tasks. In this regard, arbitration procedures in England have been actively used for a long time. In England, dispute resolution methods through arbitration have been developed centered on merchant groups such as guilds from the 16th century and have been actively used until today. However, the arbitration procedure also had the characteristics of the common law because there was no legislation related to arbitration. Therefore, arbitration based on common law was carried out until the first half of the 19th century. In the 'Arbitration Act 1889', two types of arbitration systems, 'common law arbitration' and 'statutory arbitration' coexisted. However, in the arbitration procedure, according to the newly enacted 'Arbitration Act 1889', the arbitration agreement was binding from the time the arbitration agreement was reached. There was a way to select an arbitrator even if it was not explicitly stipulated in the arbitration agreement, and the arbitration award was quickly enforced. Arbitration under contract was preferred over common law arbitration, where withdrawal and revocation of awards were possible. However, in response to these provisions, the England courts considered the arbitration system to deprive the courts of jurisdiction, while a strengthened judicial review of arbitration procedures was done. In particular, England unified the arbitration-related laws, which had been scattered for a long time, adopted the model law, and enacted the 'Arbitration Act 1996'. Under the recognition and enforcement of arbitral awards in 'Arbitration Act 1996', Section 66 deals with the recognition and enforcement of arbitral awards and foreign arbitral awards. Section 2 of the 'Arbitration Act 1950' is inherited and used as it is. Second, it deals with the execution of arbitral awards under the New York Convention: Article 100 (New York Convention), Section 101 (Approval and Enforcement of Awards), Section 102 (Evidence Presented by a Party Seeking Recognition and Enforcement), and Section 103 (Provides Matters Concerning Rejection Recognition and Enforcement).

• Asia-Pacific Journal of Business
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• v.10 no.1
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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.

• Journal of Korea Trade
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• v.25 no.2
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• pp.46-57
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• 2021

Purpose - In terms of human resource management, many Korean enterprises in China have experienced problems such as frequent resignations of Chinese employees and labor disputes. This can be mainly attributed to the fact that Chinese employees are not consistent with Korean vertical management methods, which is closely related to the national culture theory proposed by Hofstede, specifically the dimension of power distance and long- versus short-term orientation (LTO). Therefore, this research aims to investigate cultural differences between Korea and China from these two dimensions, and the impact on the human resource management of Korean-invested enterprises in China. Design/methodology - This research first utilizes the latest data (Wave 7) of the World Values Survey (WVS) to verify the difference in power distance and long- versus short-term orientation between Korean and Chinese cultures using responses from Korea and China, and then uses case analysis to analyze the impact of this cultural difference on the human resource management of Korean enterprises in China. Findings - Our main findings can be summarized as follows. Korea and China have significant differences in power distance and long- versus short-term orientation. In terms of power distance, Korean respondents show higher power distance compared to Chinese respondents. In the dimension of long- versus short-term orientation, it was found that Chinese respondents showed a shorter-term orientation, whereas Korean respondents showed a longer-term orientation. Originality/value - Previous studies put focus on the power distance and individualism-collectivism dimensions to explain cultural differences between Korea and China, and generated contradictory results. This research further confirms the cultural differences between Korea and China from the dimensions of power distance and long-versus short-term orientation using secondary data. The comparative studies from this perspective have long been underexplored and lack empirical confirmation.

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

• Korea Trade Review
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• v.43 no.6
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• pp.25-50
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• 2018

It is an undeniable fact that the counter-guarantees are always exposed to wrongful or fraudulent demands for payment due to its institutional hallmarks and simplicity. Generally counter-guarantees are payable by presenting a written statement indicating that the local guarantor was in receipt of the beneficiary's statement that the principal was in breach of the underlying contract without any proof of any default. No proof of actual payment of guarantee is required. These matters may lead to numerous disputes or conflicts between the parties concerned. These problems raise may legal issues such as a guarantor(or a counter-guarantor)'s dishonor, the wrongful or fraudulent demands for payment, and the fraudulent conspiracy or the acquiescence of the local guarantor in the course of the procedural demand for payment. On the other hand, the guarantor's dishonor or an injunction are sometimes misused as dispute resolution method between parties involved. Therefore, this research analyzed the guarantor's wrongful dishonor and related issues such as an injunction, fraud exception, and others under the counter-guarantee regime focusing on the relevant cases. This paper also suggested practical implications and countermeasures from a business point of view.

• Korea Trade Review
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• v.43 no.3
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• pp.199-218
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• 2018

The force majeure in the international sale of goods has been widely used regarding liability and settlement of disputes in the event of breach of contract due to circumstances beyond the control of the parties. The purpose of this study is to examine the judgment criteria and cases concerning on force majeure in the application of FTA preferential tariffs. In order to achieve this purpose, this paper uses a literature review and case analysis on exceptional circumstances under the Korea·ASEAN FTA and the Korea·EU FTA. This study, this paper provides several implications for companies seeking preferential tariffs regarding the Korea·ASEAN FTA and the Korea·EU FTA. Korean companies are subject to the following: confirm the denial article of FTA preferential tariffs stipulated in the Korea·ASEAN FTA and the Korea·EU FTA, consider the judgment criteria on exceptional circumstances of customs authorities, confirm the extension criteria on the validity period of certificate of origin, confirm the reply criteria of verification result of the customs authorities of the exporting country, and confirm the violation of the principle of good faith for unrequested action on reply of verification result of customs authorities.

• Korea Trade Review
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• v.48 no.4
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• pp.67-92
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• 2023

In international commercial arbitration, interim measures play a crucial role in enforcing arbitral awards by prohibiting a party from hiding assets or destroying any evidence which are critical during arbitral proceedings before the arbitral tribunal renders a final award. While Chinese commercial arbitration system acknowledges interim measures, it has faced criticism for perceived deviations from the evolving international arbitration trends. Nevertheless, recent developments indicate that China is actively aligning itself with the global trend in promoting international commercial arbitration, leading to notable changes in interim measures. This paper aims to examine the prevailing international trends of interim measures in commercial arbitration and conduct an analysis of the current status of interim measures in Chinese commercial arbitration by analysing some relevant cases and regulations. By doing so, it can provide practical insights to Korean companies on how to effectively utilize interim measures when they settle their disputes by arbitration with Chinese counterparts.