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

• Korean Security Journal
• /
• no.39
• /
• pp.319-353
• /
• 2014

Cyber-based technologies are now ubiquitous around the glob and are emerging as an "instrument of power" in societies, and are becoming more available to a country's opponents, who may use it to attack, degrade, and disrupt communications and the flow of information. The globe-spanning range of cyberspace and no national borders will challenge legal systems and complicate a nation's ability to deter threats and respond to contingencies. Through cyberspace, competitive powers will target industry, academia, government, as well as the military in the air, land, maritime, and space domains of our nations. Enemies in cyberspace will include both states and non-states and will range from the unsophisticated amateur to highly trained professional hackers. In much the same way that airpower transformed the battlefield of World War II, cyberspace has fractured the physical barriers that shield a nation from attacks on its commerce and communication. Cyberthreats to the infrastructure and other assets are a growing concern to policymakers. In 2013 Cyberwarfare was, for the first time, considered a larger threat than Al Qaeda or terrorism, by many U.S. intelligence officials. The new United States military strategy makes explicit that a cyberattack is casus belli just as a traditional act of war. The Economist describes cyberspace as "the fifth domain of warfare and writes that China, Russia, Israel and North Korea. Iran are boasting of having the world's second-largest cyber-army. Entities posing a significant threat to the cybersecurity of critical infrastructure assets include cyberterrorists, cyberspies, cyberthieves, cyberwarriors, and cyberhacktivists. These malefactors may access cyber-based technologies in order to deny service, steal or manipulate data, or use a device to launch an attack against itself or another piece of equipment. However because the Internet offers near-total anonymity, it is difficult to discern the identity, the motives, and the location of an intruder. The scope and enormity of the threats are not just focused to private industry but also to the country's heavily networked critical infrastructure. There are many ongoing efforts in government and industry that focus on making computers, the Internet, and related technologies more secure. As the national intelligence institution's effort, cyber counter-intelligence is measures to identify, penetrate, or neutralize foreign operations that use cyber means as the primary tradecraft methodology, as well as foreign intelligence service collection efforts that use traditional methods to gauge cyber capabilities and intentions. However one of the hardest issues in cyber counterintelligence is the problem of "Attribution". Unlike conventional warfare, figuring out who is behind an attack can be very difficult, even though the Defense Secretary Leon Panetta has claimed that the United States has the capability to trace attacks back to their sources and hold the attackers "accountable". Considering all these cyber security problems, this paper examines closely cyber security issues through the lessons from that of U.S experience. For that purpose I review the arising cyber security issues considering changing global security environments in the 21st century and their implications to the reshaping the government system. For that purpose this study mainly deals with and emphasis the cyber security issues as one of the growing national security threats. This article also reviews what our intelligence and security Agencies should do among the transforming cyber space. At any rate, despite of all hot debates about the various legality and human rights issues derived from the cyber space and intelligence service activity, the national security should be secured. Therefore, this paper suggests that one of the most important and immediate step is to understanding the legal ideology of national security and national intelligence.

• The Korean Society of Law and Medicine
• /
• v.17 no.2
• /
• pp.3-28
• /
• 2016

While product liability has been settled as a technical term in civil law, criminal law does not commonly accept technical term for it. Not like civil law, product liability in criminal law point outs individual responsibility and disability of normative order. Meaning that causation between individual's action of violation of duty and the result of danger of legal interest or infringement of legal interest must be proved. In criminal law excluding "non-result-constituted crimes (Unternehmensdelikt)", charge of injuring, accidental infliction of injury, homicide or involuntary manslaughter is problematic in product liability. Of course, it is necessary to distinguish whether the action related to the outcome is act or ommission. Also the causal relationship between the action and the result must be proved, and the intention or negligence should be recognized. In this paper, it analyzes cases that were problematic in Korea, Germany, Spain, etc. Mainly focusing on the problems revealed in the determination of causal relationship, especially recognizing criminal liability related to products. Furthermore it is followed by the view of reviewing the cause-and-effect relationship by 2 steps, dividing natural scientific causation and the normative causal relationship. In this process, to acknowledge criminal product liability in accordance with recognizing cause-and-effect relationship, there should be general risk of specific substance causing the outcome. This only premise can be meaningful to examine the casual relationship from specific cases. As it shows in some cases and theories, it is not contradicting general law of cause and effect by determining specific causal relationship by free evaluation of evidence if a general causal relationship does not exist. Also since judge's testimony does not hold a dominant position from rule of thumb, it is possible to recognize specific causal relationship. However this paper takes position that if there is no objective and reasonably undeniable cause and effect law. If there is no objective and reasonably undeniable causal law, which is the premise for recognizing concrete causal relations, judge should sentence guilty according to "in dubio pro reo" principle. In addition, it is not allowed for the defendant to burden unproven fact by free evaluation of evidence which has an effect of shift of burden of proof.

• Korean Journal of Environment and Ecology
• /
• v.35 no.1
• /
• pp.81-91
• /
• 2021

The Democratic People's Republic of Korea did not have direct legislation on natural environmental conservation until the early 1970s when the regime was still in the early stage. The Law on Land was enacted in 1977 to provide the legal basis for protecting the natural environment, including land protection, protection zones, and forest formation and protection. The enactment of the Law on Environmental Protection in 1986 made progress on environmental conservation in the DPRK. The constitutional amendment in 1992 stipulated "the preservation and creation of the natural environment as the responsibility of the state." Based on the Framework Law on Environmental Protection, subordinate statutes in various fields were enacted after the1990s. While the committee designated and managed the protected zones in the early days, the Framework Law on Environmental Protection established the ground for the designation of legally protected areas, and the Law on Protection of Scenic Spots and Natural Monuments enacted in 1995, and the Law on Environmental Protection enacted in 2009 provided the details. Furthermore, the types of nature reserves include biosphere reserves, primeval forest reserves, animal reserves, plant reserves, and scenic reserves. The 2nd National Biodiversity Strategy and Action Plan established in 2007 based on the Convention on Biological Diversity(CBD) stated 326 protected zones in the DPRK. However, the 2018 United Nations list of Protected Areas shows only 31 registered zones, indicating the need to establish basic information on protected areas in DPRK. This study can provide basic information for a better understanding of the nature conservation system in the DPRK. Considering that environmental protection activities such as protection of endangered species and recovery of environmental pollution are subject to exceptions under the current sanctions against North Korea (UN Security Council, the United States), it will be possible to contribute to identifying possible inter-Korean cooperation projects in the field of the natural environment.

• The Korean Journal of Air & Space Law and Policy
• /
• v.24 no.1
• /
• pp.35-58
• /
• 2009

A treaty that governs the compensation on damage caused by aircraft to the third parties on surface was first adopted in Rome in 1933, but without support from the international aviation community it was replaced by another convention adopted again in Rome in 1952. Despite the increase of the compensation amount and some improvements to the old version, the Rome Convention 1952 with 49 State parties as of today is not considered universally accepted. Neither is the Montreal Protocol 1978 amending the Rome Convention 1952, with only 12 State parties excluding major aviation powers like USA, Japan, UK, and Germany. Consequently, it is mostly the local laws that apply to the compensation case of surface damage caused by the aircraft, contrary to the intention of those countries and people who involved themselves in the drafting of the early conventions on surface damage. The terrorist attacks 9/11 proved that even the strongest power in the world like the USA cannot with ease bear all the damages done to the third parties by the terrorist acts involving aircraft. Accordingly as a matter of urgency, the International Civil Aviation Organization(ICAO) picked up the matter and have it considered among member States for a few years through its Legal Committee before proposing for adoption as a new treaty in the Diplomatic Conference held in Montreal, Canada 20 April to 2 May 2009. Accordingly, two treaties based on the drafts of the Legal Committee were adopted in Montreal by consensus, one on the compensation for general risk damage caused by aircraft, the other one on compensation for damage from acts of unlawful interference involving aircraft. Both Conventions improved the old Convention/Protocol in many aspects. Deleting 'surface' in defining the damage to the third parties in the title and contents of the Conventions is the first improvement because the third party damage is not necessarily limited to surface on the soil and sea of the Earth. Thus Mid-air collision is now the new scope of application. Increasing compensation limit in big gallop is another improvement, so is the inclusion of the mental injury accompanied by bodily injury as the damage to be compensated. In fact, jurisprudence in recent years for cases of passengers in aircraft accident holds aircraft operators to be liable to such mental injuries. However, "Terror Convention" involving unlawful interference of aircraft has some unique provisions of innovation and others. While establishing the International Civil Aviation Compensation Fund to supplement, when necessary, the damages that exceed the limit to be covered by aircraft operators through insurance taking is an innovation, leaving the fate of the Convention to a State Party, implying in fact the USA, is harming its universality. Furthermore, taking into account the fact that the damage incurred by the terrorist acts, where ever it takes place targeting whichever sector or industry, are the domain of the State responsibility, imposing the burden of compensation resulting from terrorist acts in the air industry on the aircraft operators and passengers/shippers is a source of serious concern for the prospect of the Convention. This is more so when the risks of terrorist acts normally aimed at a few countries because of current international political situation are spread out to many innocent countries without quid pro quo.

• Journal of Korean Society of Forest Science
• /
• v.74 no.1
• /
• pp.47-55
• /
• 1986

During the past 4 years, I have made a careful analysis of the present rotating system of hunting areas, on the one hand, by asking a group of hunters to fill out a questionnaire, and on the other hand, by referring to the written documents on the subject. And, as a result, it is concluded that this system, by varying the hunting grounds each year, contains in itself several problems as follows. 1. The hunters find it quite inconvenient to use a different hunting ground year after year and they also complain that the present hunting ground charge is more than it is worth. Therefore, it is expected that the number of hunters will explosively increase in the future with the betterment of hunting conditions. 2. The hunters have almost no information about game and they are, as a whole, lacking in the ethics of hunting. 3. The allotment of time in hunting training courses is not so sufficient that it is next to impossible to improve the quality of hunters. 4. As a rule, the population density of wildlife is so sparse that it falls short of the proper standard of it. 5. The present hunting system does not seem to contribute to the advancement of tourism. 6. It is absolutely necessary to make a general survey of the situation of wildlife for the legal protection of it. Besides, the interests of hunters are so closely tied up with those of farmers and foresters that dreastic measures should be taken to settle their conflicting differences. For the purpose of solving the above-mentioned problems and at the same time, of developing sound hunting practices in the long run, I hereby make two suggestions. 1. The Establishment of the Hunting License Test System It is desirable to issue a license to a prospective hunter after he has met a special qualification and then passed a test so that he may have bits of information needed for his hunting activities. 2. The Introduction of The Revier System The fundamental concept of this system is based on the assumption that the private landowner should reserve a right to the pursuit of game and take responsibility for wildlife management.

• KOREAN JOURNAL OF PACKAGING SCIENCE & TECHNOLOGY
• /
• v.24 no.2
• /
• pp.65-71
• /
• 2018

Paper packs, glass bottles, metal cans, and plastic materials are classified according to packaging material recycling groups that are Extended Producer Responsibility (EPR). In the case of waste paper pack, the compressed cartons are dissociated to separate polyethylene films and other foreign substance, and then these are washed, pulverized and dried to produce toilet paper. Glass bottle for recycling is provided to the bottle manufacturers after the process of collecting the waste glass bottle, removing the foreign substance, sorting by color, crushing, raw materializing process. Waste glass recycling technology of Korea is largely manual, except for removal of metal components and low specific gravity materials. Metal can is classified into iron and aluminum cans through an automatic sorting machine, compressed, and reproduced as iron and aluminum through a blast furnace. In the case of composite plastic material, the selected compressed product is crushed and then recycled through melt molding and refined products are produced through solid fuel manufacturing steps through emulsification and compression molding through pyrolysis. In the recycling process of paper packs, glass bottles, metal cans, and plastic materials, the influx of recycled materials and other substances interferes with the recycling process and increases the recycling cost and time. Therefore, the government needs to improve the legal system which is necessary to use materials and structure that are easy to recycle from the design stage of products or packaging materials.

• Journal of Korean Academy of Nursing
• /
• v.6 no.1
• /
• pp.60-71
• /
• 1976

The author reviewed the medical records of 96 typhoid fever patients who were diagnosed, admitted, and treated at Sea grave Memorial Hospital from January 1 , 1973 through August 31, 1975. Diagnosis was determined by clinical observation, aerology and bacteriology, eighty patients were treated medically, the remaining 16 patients required surgical intervention. The following results were obtained: 1) The age distribution of the patients revealed that 33.3% wert between 10 and 19 years old 21.9% were between 20 and 29, and 19.8% were between 30 and 39. The majority of patients were from these more active age groups. Male to female sex ratio was 1.3 : 1 2) Seasonal distribution was observed. Most illness occurred in the summer and autumn month 5. 3) 84. 3%of the patients came from farm families. 4) Duration between onset and admission averaged 16.0 days. The group without compilations was admitted after an average of 15. 1 days; The group with complications was ad-matted after an average of 19.4 days. 5) Methods of treatment before admission were as follows: 10.4% at medical clinics, 61, 5% at pharmacies (antibiotics 47.9%, other. drugs 13.5%), 7.3% by herb medications, 20.8% had no treatment. 6) Main clinical symptoms were as follows: fever 93.8%, headache 47.9%, abdominal pain 47.9%, chills 38.5%, cough 36.5%, general weakness 26.0%, nausea e vomiting 24.0% and generalized pain 21.9%. 7) Temperature of patients on admission: 22.9% were 39f or more, 67.6% were between 37℃ and 38℃, and 9.4% were 37℃ or less. 8) Occurrence of intensional bleeding after onset of disease averaged 9.3 days; perforation occurred at an average of 19. 1 days. 9) Interval between onset of major complication and surgical intervention averaged 2.8 days. 10) Among the 68 patients who underwent the bacteriological test the positive rate was 44.1% (30). The positive ,ales to, each separate culture method were as follows: 20.4% in the blood culture, 40.4% in the stool culture and 6.7% in the urine culture. Among these bacteriological positive patients 15 patients had a negative results or less than 160 titer of vidal reaction. 11) The initial vidal test of the total group showed a counts of 160 titer or more in 60.4% and less than 160 titer in 39.6%, 12) W. B. C. Counts in the uncomplicated group indicated that 32.5% were 6,000/㎣ or less, 47.5% were between 6,000 and 10,000, arid 20.0% were 10,000/㎣ or more. In the complicated group, 37.6% were 6,000/㎣ or less, 25,0% were 6,000-10,000/㎣ and 37.6% were 10,000/㎣ or more. 13) Duration of hospital stay of the patients averaged 6.4 days in the uncomplicated group and 12.7 days in the complicated group. 14) Subdiaphragmatic free air simple X-ray was found in 91.7% of the perforated cases. 15) Duration of antibiotic therapy until an febrile state was attained averaged 4.8 days in the uncomplicated group and 6.5 days in the complicated group. 16) Operative procedures were as follows: one layer simple closure of their perforation with or without debasement in 56.3%, drainage only in 6.3%, small bowel resection with primary anastomosis in 18.8% , externalization in 6.3%, cholecystectomy in 6.3%, The clinical findings of this study suggest the following recommendations. According to Top's report; 1% of typhoid fever patients treated with chlorarnphenicol and 2% of patients treated with other drugs become chronic carriers. Therefore, importance should be given to the strict control of these carriers. Immunization, improvement of sanitation and living standards are all needed for the prevention and treatment of disease, but a more serious problem is a lack of knowledge on the part of patients and their families. Thus it is most urgent to enlighten the citizens about the transmission and hygiene related to contagious disease. Legal restriction of sale of antibiotics at drug stores without a physician's prescription is an urgent matter for public health administrators. An even more important nursing responsibility is the reemphasis on health education both in the clinical setting and in the home.

• Journal of Arbitration Studies
• /
• v.26 no.4
• /
• pp.3-41
• /
• 2016

This paper reviews the problems on the arbitral awards enforcement in the 2016 Korean Arbitration Act. In order to get easy and rapid enforcement of the arbitral awards, the new arbitration act changed the enforcement procedure from an enforcement judgement procedure to an enforcement decision procedure. However, like the old arbitration act, the new act is still not arbitration friendly. First of all, there are various problems in the new act because it does not approve that an arbitral award can be a schuldtitel (title of enforcement) of which the arbitral award can be enforced. In this paper, several problems of the new act are discussed: effect of arbitral award, approval to res judicata of enforcement decision, different trial process and result for same ground, possibility of abuse of litigation for setting aside arbitral awards and delay of enforcement caused by setting aside, infringement of arbitration customer's right to be informed, and non-internationality of enforcement of interim measures of protection, inter alia. The new arbitration act added a proviso on article 35 (Effect of Arbitral Awards). According to article 35 of the old arbitration act, arbitral awards shall have the same effect on the parties as the final and conclusive judgement of the court. The proviso of article 35 in the new act can be interpret two ways: if arbitral awards have any ground of refusal of recognition or enforcement according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court; if arbitral awards have not recognised or been enforced according to article 38, the arbitral awards do not have the same effect on the parties as the final and conclusive judgement of the court. In the case of the former, the parties cannot file action for setting aside arbitral awards in article 36 to the court, and this is one of the important problems of the new act. In the new act, same ground of setting aside arbitral awards can be tried in different trial process with or without plead according to article 35 and 37. Therefore, progress of enforcement decision of arbitral awards can be blocked by the action of setting aside arbitral awards. If so, parties have to spend their time and money to go on unexpected litigation. In order to simplify enforcement procedure of arbitral awards, the new act changed enforcement judgement procedure to enforcement decision procedure. However, there is still room for the court to hear a case in the same way of enforcement judgement procedure. Although the new act simplifies enforcement procedure by changing enforcement judgement procedure to enforcement decision procedure, there still remains action of setting aside arbitral awards, so that enforcement of arbitral awards still can be delayed by it. Moreover, another problem exists in that the parties could have to wait until a seventh trial (maximum) for a final decision. This result in not good for the arbitration system itself in the respect of confidence as well as cost. If the arbitration institution promotes to use arbitration by emphasizing single-trial system of arbitration without enough improvement of enforcement procedure in the arbitration system, it would infringe the arbitration customer's right to be informed, and further raise a problem of legal responsibility of arbitration institution. With reference to enforcement procedure of interim measures of protection, the new act did not provide preliminary orders, and moreover limit the court not to recognize interim measures of protection done in a foreign country. These have a bad effect on the internationalization of the Korean arbitration system.

• Clean Technology
• /
• v.26 no.2
• /
• pp.151-157
• /
• 2020

Rapid urbanization has elevated the risk of urban flooding due to the increase in the impervious surface, causing environmental disasters and environmental pollution problems, such as lowering the groundwater level and increasing water pollution. In Korea, low impact development (LID) techniques have been introduced to minimize these environmental impacts and maintain the water cycle soundness. However, most small-scale development projects are in blind spots because there is no legal basis for rainfall runoff management. Small-scale development projects that increase the surface runoff of rainwater are required to mandate the application of LID facilities in accordance with the polluters' responsibility principle. Therefore, it is necessary to implement a preliminary consultation system for water cycle recovery. This study focuses on the cost-benefit analysis on the application of LID techniques for small-scale development projects. The scale of nationwide small-scale development projects used for cost-benefit analysis were defined as buildings with a land area of more than 1,000 ㎡ or a total floor area of 1,500 ㎡. As a result of analyzing the cost-benefits from the installation of LID facilities, they were found to be much lower than the economic standard value of 1. This might be due to the high cost of facilities compared to the scale of the project. However, considering the overall environmental value of improving the water environment and air quality by the installation of LID facilities and the publicity of reducing the operating cost of sewage treatment facilities, the introduction of a prior consultation for small-scale development projects is inevitable. In the future, institutional and financial support from local governments is required to improve the cost-benefits with the introduction of a prior consultation for small-scale development projects.