• Journal of Arbitration Studies
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• v.13 no.2
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• pp.123-156
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• 2004

Settlement of investment disputes is quite different from that of commercial disputes arising from ordinary commercial transactions in view of disputing parties, applicable laws and rules, etc.. Therefore, it is very important to consider the Convention on the Settlement of Investment Disputes between States and Nationals of Other States(Washington Convention) of 1965. The creation of the International Centre for Settlement of Investment Disputes(ICSID), which was established under the Washington Convention, was the belief that an institution specially designed to facilitate the settlement of investment disputes between governments and foreign investors could help to promote increased flows of international investment. Pursuant to the Washington Convention, ICSID provides facilities for the conciliation and arbitration of disputes between member countries and investors who qualify as nationals of other member countries. Recourse to ICSID conciliation and arbitration is entirely voluntary. However, once the parties have consented to arbitration under the Washington Convention, neither can unilaterally withdraw its consent. Moreover, all Contracting States of the Washington Convention are required by the Convention to recognize and enforce ICSID arbitral awards. Provisions on ICSID arbitration are commonly found in investment contracts between governments of member countries and investors from other member countries. Advance consents by governments to submit investment disputes to ICSID arbitration can also be found in many bilateral investment treaties including the Korea-China Agreement on the Encouragement and Reciprocal Protection of Investments(1992), the Korea-Japan Agreement for the Liberalization, Promotion and Protection of Investment(2003) and the Korea-Chile FTA, the latter was signed as of February 15, 2003 and is still pending in the National Assembly for its ratification. Arbitration under the auspices of ICSID is similarly one of the main mechanism for the settlement of investment disputes under the bilateral treaties on investment. Therefore, it is a problem of vital importance that Korean parties interested in investment to foreign countries should understand and cope with the settlement mechanism of investment disputes under the Washington Convention and bilateral investment treaties.

• Journal of Arbitration Studies
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• v.16 no.2
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• pp.3-49
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• 2006

The purpose of this paper is to make research on the settlement mechanism of the commercial disputes between the South and the North of Korea. Also, this paper is to make research on the south-north Korea's cooperative tasks to promote the disputes settlement, including the operation and management of the South-North Arbitration Commission as well as the enactment of the South-North Arbitration Rules. To realize the spirit of the South-North Joint Declaration of June 15, 2000, the Authorities concerned of the South and the North of Korea have reached an agreement titled 'Agreement on Settlement Procedure of Commercial Disputes' on December of the same year. As the follow-up measures of the said Agreement, the South-North Authorities have signed an another agreement called 'Agreement on Organization and Administration of the South-North Arbitration Commission' on October, 2003, which is becoming vital importance for settlement of the commercial disputes between south and north Korea including the Gaeseong Industrial Complex. Gaeseong, a city surrounded by the North Korean military and a symbol of inter-Korean tensions, is now turning into a peace zone where thousands of North and South Koreans are working side by side. The Gaeseong Industrial Complex project, driven by the logic and economic necessity of cooperation, has been steadily moving forward since the North designated it as a special economic zone and has enacted related laws and regulations for its development. Under the situation, the matter of primary concern is how to organize and conduct the Arbitration Commission for the prompt and effective settlement of the south-north commercial disputes. First of all, the South-North Authorities should recognize that the availability of prompt, effective and economical means of dispute resolution such as arbitration and mediation to be made by the Arbitration Commission would promote the orderly growth and encouragement of the south-north trade and investment. In this connection, the Korean Commercial Arbitration Board(KCAB) should be designated as the arbitral institution of the south Korean side under the Agreement on Organization and Administration of the South-North Arbitration Commission. The KCAB is the only authorized arbitral organization in South Korea to settle all kinds of commercial disputes at home and abroad.

• Journal of Arbitration Studies
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• v.14 no.2
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• pp.3-46
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• 2004

To realize the spirit of the South-North Joint Declaration of June 15, 2000, the competent authorities of the South and the North of Korea have reached two Agreements to settle commercial disputes as well as to set up an arbitral organization called 'South-North Commercial Arbitration Commission'. The Commission is an institutional organization for settlement of commercial disputes arising from trade and investment between south and north Korea. Under the situation, it is becoming a problem of vital importance how to manage and control the Commission for prompt and effective settlement of south-north commercial disputes. While analyzing the above two Agreements for dispute-settlement mechanism, the author proposes desirable ideas and directions in connection with the Commission as follows: 1. First of all, the Commission should become a central common system for settlement of commercial disputes which meets the demand of capitalistic market economy. 2. The Authorities of south and north Korea should recognize that the availability of prompt, effective and economical means of disputes resolution such as arbitration and conciliation to be made by the Commission would promote the orderly growth and encouragement of south-north trade and investment. 3. The Korean Commercial Arbitration Board(KCAB) should be designated as the Arbitration Commission of South Korea because the KCAB is the only authorized institution in South Korea, statutorily empowered to settle any kind of commercial disputes at home and abroad.

• Journal of Arbitration Studies
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• v.27 no.4
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• pp.157-177
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• 2017

World Trade Organization(WTO) has 164 members since it has established on 1995. It plays a significant role in solving the world trade disputes. The process of the dispute settlement mechanism includes five steps: Negotiation, Establishment of experts group, Deliberation of appellate body, Execution and Supervision of Verdict and the Sanctions for Default. It suggested that the higher rate of developed countries using mechanism to solving the disputes than developing countries solving disputes by mechanism through the analysis of dispute of WTO members. Meanwhile, the more powerful economic entity is, the more trade dispute will be. There are several problems of mechanism by analysis the recently famous cases of trade disputes: Overburden of experts panel, Low utilization rate of the mechanism of developing countries, Lack of economic competition policy and labor standard terms and Unfulfillment of retaliatory measures of developing countries towards developed countries. This paper propose proper solutions and advises to improve mechanism of WTO dispute settlement.

• Journal of Arbitration Studies
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• v.20 no.2
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• pp.27-47
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• 2010

It is well recognized that the availability of prompt, effective and economical means of dispute resolution is an important element in the orderly growth and encouragement of international trade and investment. Increasingly, arbitration, instead of litigation in national courts, has become the preferred means of resolving private international commercial disputes. Under the situation, it will be important thing for arbitral institutions to reach an agreement to promote the dispute settlement of the commercial disputes, for which efforts have been made between the Korean Commercial Arbitral Board(KCAB) and principal arbitration institutions of the foreign countries. Since 1973, the KCAB has entered into many arbitration agreements with well-known foreign institutions of arbitration. If the place of arbitration is not so designated by the parties, it, as a general rule, shall be the country of the respondent(s) under the Korea-Japanese Arbitration Agreement. On the other hand, the U.S.-Korean Commercial Arbitration Agreement maintains 'Joint Arbitration Committee which finally decide the place of arbitration. In 1996, the Korea-Austria Agreement of Cooperation was concluded for the prompt and equitable settlement on an amicable basis of commercial disputes. Under this Agreement, arbitral institutions between Korea and Austria agreed to act as an appointing authority in accordance with the UNCITRAL Arbitration Rules. It is also very important for Korea and China including North Korea to cooperate each other for the settlement of the commercial disputes within the Pan Yellow Sea Economic Bloc(PYSEB). The PYSEB is quickly becoming a distinctive and crucial region in the world sharing geographical proximity, many common historical experiences, and similar cultural norms and values although they have disparities in stages of development, trade and economic policies, and financial and legal frameworks. Finally, it should be considered to establish a central common system for settlement promotion of the commercial disputes within the PYSEB through the arbitration agreement. Such a dispute resolution system was already introduced and established within the area of the NAFTA, and it is called the Commercial Arbitration and Mediation Center for the Americas(CAMCA).

• Korea Trade Review
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• v.45 no.1
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• pp.31-45
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• 2020

As FTAs are introduced, greater trade between the countries results in more disputes between parties to the agreement. Disputes in international trade have previously been settled mainly through international arbitration. However, with the recent rise in negative aspects of the arbitration system, the international community has begun to seek ways to utilize mediation for replacing the arbitration system. Mediation is a dispute settlement system that helps the parties settle their disputes on their own through negotiations. The UNCITRAL, which seeks to unify and develop international trade law, amended the Model Mediation Law in 2018 and adopted the 'United Nations Convention on International Settlement Agreements Resulting from Mediation' in August 2019 to enable the adoption of the international settlement agreement. This study analyzes the main contents of the 2018 Model Mediation Law and predicts the potential for the development of international commercial mediation as a dispute settlement procedure for future international trade.

• Journal of Arbitration Studies
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• v.30 no.4
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• pp.3-29
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• 2020

The WTO's dispute settlement system has played a significant role in settling trade disputes between countries, and its function and role have been expanded by handling about 596 disputes since its establishment in 1995. This shows that the WTO's dispute settlement system is gaining enormous trust among member countries that it recognizes as a fair, effective, and efficient system for resolving trade disputes. The U.S. remains uncooperative in the WTO dispute settlement system, citing disregard for the 90-day deadline for appeals, continued service by persons who are no longer A.B. members, issuing advisory opinions on issues not necessary to resolve a dispute, A.B. review of facts, and review of a member's domestic law de novo. The A.B. claims its reports are entitled to be treated as a precedent. These problems should be gradually improved through various discussions and agreements by establishing a multilateral forum for resolving disputes and gradually ending the problems through reform of the DSU.

• Journal of Arbitration Studies
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• v.15 no.3
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• pp.207-232
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• 2005

This study is for an example of arbitration of a dining out franchise company in Korea and franchise system currently is expanding and developing to international trade. The main reason for that is franchising has some benefits compared to the existing trades. Korean dining-out industry has largely developed for the past 20 years, but there are little world-class company of the industry, because dining-out industry should go for qualitative as well as quantitative growth at the same time. Korean dining-out industry has adopted licensing and joint-venture among growth strategies, but the franchise system among them seems to have taken its place as a representative strategy for management to develop dining-out industry. The history of Korean dining-out franchise industry is very short and it is true that we have no a management philosophy of accompanying growth with franchise due to a short experiences and recognition of top management or managers and short-term strategy for branch expansion. For a brilliant growth of dining-out franchise industry, to settle disputes through arbitration, in case of disputes taking place, is very important, because the franchise industry is a frequent-trading sector, requires expert-level knowledge, favors a closed examination and also needs a fast solution. As the franchise industry has been sharply growing around the world, there is more possibility of disputes, and various and complicated laws of the industry are related to disputes as well, so much more expert-level knowledge is required to solve disputes. Therefore, affiliated headquarters hope a disclosed settlement of their disputes and their any disputes should be fast settled for the benefits of affiliated members.

• Journal of Arbitration Studies
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• v.13 no.2
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• pp.69-102
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• 2004

This paper discusses about the e-commerce and the various types of e-commerce disputes. Through empirical examination on the dispute consideration system and by comparative analysis it is derived out of the weakness of current system and finally some suggestions for improvement. First, it is recommended that the more sophisticated knowledge concerning e-commerce should be proliferated through the existing institutions. For example, disputes for B2C could be managed by the consideration system of consumer dispute consideration in Consumer Protection Board of Korea, while B2B by the arbitration system of the Korean Commercial Arbitration Board. Second, the role of Korea Institute for Electronic Commerce established for the purpose of consideration of e-commerce disputes is much emphasized. For successful achievement, it is necessarily required to reinforce the related laws, systems, institutions and human resources. Finally, it is also suggested that the Korean Commercial Arbitration Board and Consumer Protection Board of Korea fully cover consideration and arbitration, while Korea Institute for Electronic Commerce activates its proper role of consulting and ad hoc arbitration by using electronic information. This study results are how to minimize the disputes and the method of dispute settlement. Therefore, a role of arbitration proposed and emphasized. To protect the dispute in advance, it's suggested to revise rules timely following on technical changes, and emphasized that the dispute has to lead to arbitration settlement not for consuming unnecessary time and finance for enterprises and consumers.

• Journal of Arbitration Studies
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• v.11 no.1
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• pp.3-35
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• 2001

$\ulcorner$The South-North Joint Declaration$\lrcorner$ of June 15, 2000 made by President Kim Dae Jung and National Defense Committee Chairman Kim Jong Il will contribute to the activation of economic exchange between south and north Korea. To realize the fundamental spirit of the South-North Joint Declaration, the authorities concerned of south and north Korea have reached an agreement titled $\ulcorner$Agreement on Settlement Procedure of Commercial Disputes$\lrcorner$ last December. In this connection, a speedy and reasonable settlement of commercial disputes arising therefrom is becoming a problem of vital importance between south and north Korea. Also, south and north arbitral institutions have to consider a possible arbitration agreement carefully to solve the disputes systematically under the Agreement, which will serve as an example for similar arrangements and possible harmonization in East-West commercial relations. A variety of dispute settlements including friendly consultations, conciliation and arbitration will be used more frequently within the framework of the bilateral agreements of governmental or non-governmental level which have been concluded in the past between socialist and capitalistic economy countries. There is a growing tendency that East-West trade parties recognize and accept the UNCITRAL Arbitration Rules in their contracts. So it is advisable to use the UNCITRAL Rules in arbitrations of south and north Korea in case that the interested parties fail to agree on applicable rules. Finally it should be noted that pre-arbitral settlement called ‘joint conciliation’ should be reflected in the settlement mechanism of commercial disputes between south and north Korean parties as proved to be successful between the U.S. and China trade in the past.