• Journal of Arbitration Studies
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• v.27 no.3
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• pp.95-107
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• 2017

Mongolian government enacted the Foreign Trade Arbitration Law to modernize the practice of commercial arbitration. Nevertheless, the Foreign Trade Arbitration Trade Law fell short on a number of fronts and arbitration itself remained a distant second option to litigation within Mongolia. Law on Arbitration of 2003 aimed to modernize the Mongolian arbitration framework so that it would mirror the UNCITRAL Model Law on International Commercial Arbitration. At the same time, the Law on Arbitration 2003 made a conscious decision to deviate from international norms with respect to certain aspects in order to accommodate for the unique circumstances and characteristics of Mongolia. For example, unlike its UNCITRAL counterpart, the Law on Arbitration of 2003 did not include an exhaustive list of grounds for refusing the recognition and enforcement of arbitral awards. In that sense, the Law on Arbitration of 2003 was a resounding success and a drastic improvement on the Foreign Trade Arbitration Law. These factors convinced the Mongolian government to once again revise its arbitration law. This process, which started in 2008 with the help of foreign law firms and institutions, ultimately culminated in the Law of Arbitration of 2017. The chief objective of the Law of Arbitration of 2017 was to more closely adhere to preexisting international norms on arbitration such as the Model Law on International Commercial Arbitration, and there is no question that Mongolia has succeeded in doing so. This article thus concludes by explaining some of the noteworthy improvements made by the 2017 revisions, and by noting that Mongolia is now equipped with a truly international legal framework for arbitration.

• Korea Trade Review
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• v.43 no.1
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• pp.153-176
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• 2018

Since entering into force on June 1st, 2007, the Korea·ASEAN FTA has had great strategic importance as it represents a massive export market for Korea. For more than 10 years since its implementation, the trade in both goods and services have greatly increased, and ASEAN has become the second largest export market for Korea. However, Korea's FTA utilization rate for exports is approximately 46%, which is far lower than the average rate of 72% for all FTAs, despite several revisions. In this study, we investigate the problems causing this low rate of FTA utilization for export by analyzing import clearance disputes faced by the counterpart. Our recommended countermeasures for such disputes are : Since form requirements for C/O (certificate of origin) are important considerations for ASEAN countries, C/O needs to be written accurately. Understanding of the administrative system and regulative procedures of ASEAN countries is also necessary. Accurate HS code of importing countries must be obtained. Korean government authorities should make diplomatic effort to ease the import clearance procedures in counterpart countries and contact customs offices to facilitate communication.

• International Area Studies Review
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• v.13 no.1
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• pp.417-444
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• 2009

In October 2005, the Russian government started an investigation if safeguard measures against the importation of Korean sodium cyanide products could be taken. With Russia being a non-WTO member country, the Korean side found themselves in different situation from previous negotiation cases with developed or WTO member countries. Although several elements of trade negotiation theories such as goal setting, bargaining power, and relationship could apply, new constraints of limited information access and uncertainty of administrative procedures should be overcome. Combination of the governmental negotiation, assistance of the Russian consumer group, and the application of related laws led the Russian authority to dismiss the case. I suggest that there be some built-in channels for gathering information of non-WTO member countries.

• The Journal of the Korea Contents Association
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• v.13 no.12
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• pp.702-714
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• 2013

South Korea, China and Japan is struggling for a new economic growth and facing new challenges and difficulties in foreign investment. In this paper, I Studied on the Legal System and Limits or Rules on the Investment Between Korea, China and Japan. First, FTA between Korea, Chin. The trade and economic relations and the investment flows between the three countries were examined. Based on the background of the three countries, it has been studied on the Legal System and Rules in the foreign investment Between Korea, China and Japan. Based on this, and the following were examined. What are the major limits in the foreign investment Between Korea, China and Japan? In the future, what should be included on the FTA investment chapter in FTA between Korea, China and Japan in order to facilitate more investment? FTA between Korea, China and Japan would be an effective means to strengthen the protection of investors and investment facilitation, and investment flows between the three countries will be activated. In the future, FTA between Korea, China and Japan is expected to further promote investment among the three countries. In this regard, in the future, the FTA investment chapter in FTA between Korea, China and Japan should include NT(National Treatment), MFN(Most-Favoured-Nation (Treatment)), Prohibition of the implementation of specific measures, the nationality requirements of management or the board of directors, movement of funds, safeguard measures, expropriation and compensation, compensation for loss, fair and equitable treatment, the settlement of disputes between foreign investors and investment promotion country(Investor-State Dispute Settlement), and other agreement between the three countries.

• Journal of Arbitration Studies
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• v.28 no.2
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• pp.111-135
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• 2018

As the disputes in the investment and civil/commercial sectors of China and Taiwan have increased due to active cross-strait economic exchanges, the Chinese government is addressing cross-strait disputes through various dispute resolution methods. In recent years, the Arbitration Center Across the Straits (ACAS) has been established to resolve disputes between cross-strait parties, while ACAS Arbitration Rules have been enacted and enforced. ACAS Arbitration Rules are prepared by referring to the Arbitration Act of China and Taiwan, the relevant provisions and practices of the China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules and the cross-strait practical affairs of the China International Economic and Trade Arbitration Commission, and the cross-strait practical affairs giving consideration to the specificity of the cross-strait relationship and the characteristics of economic and trade disputes. Therefore, this paper has compared the features and main contents of the ACAS Arbitration Rules with those of the CIETAC Arbitration Rules. This refers to arbitration proceedings such as form and effect of arbitration agreement, decision of place of arbitration, and organization of arbitral tribunal; the provision of consolidation of multiple contracts and arbitration, and the provision of joinder of arbitration parties, which are implementing the "principle of party autonomy" with streamlining arbitration proceedings and reducing costs; "common, simple, and small sum arbitration proceedings which require shorter arbitration proceedings depending on the size of the arbitration object; and regulations on the "interconnection of mediation and conciliation" which is characteristic of China's arbitration system. Based on the above-mentioned main contents of the ACAS Arbitration Rules in China, there are some implications to be considered in the establishment of the Arbitration Rules of the South-North Commercial Arbitration Commission which will be applied to solve commercial and investment disputes arising from the Inter-Korean Economic Cooperation process, suggesting implications such as the need for the rapid composition and operation of the South-North Commercial Arbitration Commission, requirements for selecting arbitrators, expansion of the object of arbitration, specification of concreteness in deciding the place of arbitration, need to create a variety of arbitration proceedings, and application plan of the International Center for Settlement of Investment Dispute (ICSID) or Third Power Arbitration Agency.

• The Journal of the Korea Contents Association
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• v.21 no.1
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• pp.12-23
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• 2021

Due to high proportion of exports, Korea has a higher dependence on the global value chain (GVC) than other major developed countries. This reason, Korea has a structure that is sensitive to GVC changes. This is because Korean exports are concentrated on specific countries and items, and most of the materials for export tend to depend on imports. Currently, export restrictions resulting from trade disputes with Japan can affect the industry of Korea as a whole due to the supply of core materials. Therefore, in order to minimize economic damage caused by export regulations in the current situation, it is necessary to reorganize the GVC, through efforts to rapidly diversify imports and localize imports that depend on Japan. To this end, it is necessary to derive and classify imported goods that depend on Japan, and to localize items that are difficult to diversify imports, and prompt R&D investment is required for this. This study aims to support R&D investment policy through quantitative analysis based on big data rather than a decision-making method based on expert-centered qualitative analysis.

• Korea Trade Review
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• v.42 no.2
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• pp.205-225
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• 2017

The study attempts to verify the case related to the notice of payment refusal by issuing bank regarding discrepancy in transport document under L/C(Letter of Credit) transaction. Considering the high portion of trade between Korea and China, Korean companies and banks in L/C transaction should be careful about many unpredictable situations. The case of this study is that Chinese seller(beneficiary) initiated a civil suit against Industrial Bank of Korea to Chinese court and Chinese courts in the first and second trials judged that the notice of payment refusal by Industrial bank of Korea doesn't satisfy Article 16, (c) (ii) (iii) in UCP 600. However, Industrial Bank of Korea implements the judgement even though the judgement is highly biased to Chinese seller. Considering the judgement by Chinese courts, the study suggests some countermeasures to Korean companies and banks which opened L/C. First, the issuing bank should describe the contents of discrepancy specifically based on Article 16, (c) in UCP 600. Second, it is necessary to insert a clause regarding governing law in the L/C contract like sales contract. Third, considering the biased judgement by Chinese court and difficulty in execution of foreign judgement in China, it is recommended to using arbitration as a method of dispute resolution such as ICLOCA and DOCDEX Rules which are international system operated by international instruments because it has legal effects to parties in L/C contracts if the issuing bank inserts arbitration clause in L/C.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.91-113
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• 2017

UN Convention on International Sale of Goods (CISG) and International Commercial Arbitration aim at the promotion and facilitation of international trade. Both of them share similar general principles; i.e., party autonomy and pacta sunt servanda. Also they are often applied concurrently in the case of the international commercial trade. The purpose of this article is to investigate whether the CISG could apply the formation of the arbitration clause that is included in the main contract governed by CISG. Sellers and buyers have freedom of designating choice of law that is applied to their contracts. An international arbitration agreement is presumed to be separable from the contract in which it is found. However, arbitration clauses commonly form part of a general contract. Thus, the CISG is intended to be applied to dispute resolution clauses, including arbitration clause even if it is not completely suitable. Notably, there is a fundamental distinction between the CISG and arbitration. The CISG abolished the formalities of contract. New York convention requires Contracting States' Courts to enforce written international agreements to arbitrate.

• THE INTERNATIONAL COMMERCE & LAW REVIEW
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• v.58
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• pp.313-328
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• 2013

Today FTA extends over the world and Korea as a main member of international trade is no exception. In the past Korea, as the developing countries, has made endlessly effort to induce foreign investment from foreign enterprise and/or government to be a truly OECD countries today and made it. Korea's trade economy was reached 1 trillion dollars in 2012. Now we have to find a new way to produce, process, procure goods from foreign investment and also need to protect our profit and/or rights within foreign judicial territory. There are two method to protect foreign enterprise or government. First they rely on general principles in WTO or Bilateral Investment Treaty that the principle of equality, national treatment, and most-favored-nation treatment, you can create a predictable environment to protect foreign enterprise and/or government. Second they need to incorporate contractual clauses in their agreement such as stabilization clause, force majeure, arbitration, governing law or sovereign immunity. Of course there are many things left behind to consider I hope it will be helpful to those who prepare foreign investment contract.

• Korea Trade Review
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• v.43 no.6
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• pp.139-160
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• 2018

The purpose of this paper is to analyze how governments determine interim measures based on relevant case studies. In most countries, the arbitral tribunal will recognize the interim measures, but china still recognizes the court's own authority. This is inconsistent with international trend. Although the Arbitration Act and the Civil Procedure Act were amended in 2017, but there is no consistency between these laws and arbitration rules for interim measures. Therefore, this paper analyzes the attitude of the Chinese government to interim measures and suggests practical implications for international arbitration dispute resolutions. Understanding the advantages and disadvantages of temporary measures and timely use in China can play an important role in protecting the rights of Korean companies in commercial arbitration.