KJC Korea
Journal Central

With the further development of the internal revolution and international investment liberalization, there exist a lot of disadvantages in the foreign investment law system currently. For example, there is severe conflict between the internal laws and regulations of foreign investment law system and other laws. Thus, the reconstruction of system is around the corner. In addition, the construction of free trade area (FTA) in Shanghai is already in the substantive stage, and bilateral investment treaty (BIT) between China and America is also in the stage of substantive talks. “Foreign Investment Law (Draft)” emerges as the times require under the domestic and international background. The publication of “Foreign Investment Law (Draft)” is a key breakthrough in the lawmaking improvement of domestic foreign law system, which is other new challenge that Chinese law system conforms to the world and meets the requirement of deepening the reform comprehensively put forward by the Third Plenary Session of the 18th Central Committee of the Communist Party of China. The paper elaborates the important contents, such as foreign investors and investment, access management,national security review, information report, investment promotion, investment protection, complaint handling, supervision and inspection, especially the scientific discussion of variable interest entity (VIE) structure. “Foreign Investment Law (Draft)” will reform the foreign capitals management pattern, improve the foreign capitals management policy and transform the functions of the government. However, there are some questions in “Foreign Investment Law (Draft)”. Firstly, although it integrates partial contents of the three existing foreign investment laws  –  Sino-Foreign Equity Joint Venture Law (“EJV Law”), Sino- Foreign Cooperative Joint Venture Law  (“CJV Law”) and Wholly Foreign-Owned Enterprises Law (“WFOE Law”), it doesn’t explain the relationship with other laws after the abolition of foreign funded enterprise law. Secondly, it has made some progress in the definitions of domestic and foreign investors and foreign investment, introduces the standard of “ Actual Control”, and includes “VIE” in the system of laws and regulations. Thirdly, it innovates foreign capitals management pattern and establishes foreign capitals management system including investment restrictions industry, anti-trust review and the security review, however, the partial contents of the security review system should be improved further. In the end, the paper puts forward some questions on the suitability of comprehensive reporting system, nationalsecurity review system, investment restrictions and actual controller determination. Moreover, the paper analyzes the possible influence of foreign-funded real estate enterprise, current exchange control, existing foreign-invested enterprises, nationality change of Chinese entrepreneurs and the structure of VIE.

“The Berne Union General Understanding”(BUGU) which regulating the business of the international export credit insurers, is the result of consultations among the developed countries, summarizing the successful experience of different export credit insurance. Although BUGU belongs to soft law, the mandatory provisions are binding on its members. The purpose of the Export Credit Insurance Company of China is for realizing the policy of export and investment abroad. Its government-run and monopoly status without legal regulation is not conducive to the implementation of China's exports and foreign investment policies, but also leads to the loss of state assets. This paper illuminates the problems to which the China Export & Credit Insurance faces, for example, the system of governance structure is illegal, and the mandatory plan for the sum insured by export credit insurance violates the basic principles of underwriting, and the information of insurance coverage is not published for the public, and there are many King provisions in insurance contract. To deal with the above problems, this paper discusses some proposed countermeasures with the enlightenment of BUGU and the experience of developed countries.

The least developed countries (LDCs) are particularly disadvantaged in the multilateral trading system. They have not taken advantage of the trade liberalization. And the current international trade rules have not embodied their interests. It is very difficult for the LDCs to defend their own interests even they forged coalitions to enhance their negotiation power and influence, because of their lack of negotiation ability and the absence of a favorable institutional environment. After all. To improve the effect of the LDCs participating in the WTO decision-making is a systematic project which needs Multi-aspect joint efforts.

The Energy Charter Treaty (ECT) was initiated by European countries including Russia, the EU and it was opened for signature in Lisbon on December 17, 1995. The ECT is by far the most widely ratified investment protection agreement as to an important economic sector, energy. The ECT differs from other multilateral investment treaties, which are regional in nature, in that the Treaty has a potentially global reach. The ECT provides substantive protections to foreign investors when they invest in the ECT, thereby stimulating foreign investment by protecting investors from abroad. Article 26 of the ECT provides the procedures for an investor of a investor-state arbitration and it states host state’s unique unconditional consent to an arbitration with only a few exceptions. Investors choose to submit the dispute for resolution among ICSID, UNCITRAL Arbitration Rules and the Arbitration Institute of the Stockholm Chamber of Commerce. A landmark ECT arbitration Yukos Universal Ltd. v. Russian Federation was ruled in November 2009 pursuant to the Energy Charter Treaty on the allegations including expropriation, and decision to reject Russia's objections to the arbitral Tribunal's jurisdiction and the admissibility of the claims. Nykomb's claim was based on a disagreement as to the appropriate tariff applicable under a contract for the production of energy. Nykomb asserted that non-payment of the double tariff amounts constituted indirect or creeping expropriation under the ECT Article 13(1). Petrobart claimed that the Kyrgyz government intervened in the judicial proceedings and executive decrees that ordered KGM's reorganization failed to provide a Fair and Equitable Treatment(FET) under Article 10(1) of the ECT. Although the ECT may be considered to be one of the most successful international investment treaties, many of the prominent energy consuming and exporting states such as the US and Canada are still not parties to it. Unconditional consent to an arbitratiotn under Article 26 should be more closely analyzed for the benefit of both investor and host state. In this perspective, NAFTA jurisprudence will serve best given the aggregate number of arbitral decisions. The ECT is sill in its initial phase to progress, and the number of investor-state arbitration is still growing. Our concern now could be as to when and how Korea will join the ECT and how Korea will use the dispute settlement mechanism wisely. This could further help Korea initiate a Northeast Asian energy cooperation regime in the near future.

Multimodal transport combined with various modes of transportation is widely used in the international trade. In Korea, however, there is only one provision regarding the liability of multimodal transport operator in the commercial act, so it is not sufficient to resolve complicated legal relations of multimodal transport. The Korean Government, therefore, announced the prior announcement for legislation on the amendment of commercial act, and submitted a bill to the National Assembly. With detailed rules of multimodal transport, the amendment is subject to establish a legal predictability and stability among parties in transport contracts, and institutional base for the development of logistics industry. Specifically, the amendment in 2015 sets up rules for the liability limits for land transport as well as the significance and liability of multimodal transport operator. When it comes to the land transport rules and the liability of multimodal transport whose characteristics were non-mandatory and vague respectively, the amendment makes them more peremptory. Moreover, it also lets the provision for liability of willful misconduct on multimodal transport operator apply to transport operators, employees or agencies, so that carriers and customers could predict it rationally. Still, the amendment of commercial act has a variety of problems. First, while it provides transport of railroad, road, inland waterway and harbor transport all as the inland transports, international transport conventions such as CMR, COTIF-CIM and CMNI distinguish each mode of transport respectively. Next, there is no definite standards whether the loading, unloading or temporary stockings are belongs to pre-transportation or post-transportation. Besides, not only are the rules for liabilities of transport operator likely to be misused, but also the decision for willful misconduct of carriers mainly depends on the court’s due to the lack of detailed rules for it. To make things worse, when stage of the transport which the damage occurred cannot be defined precisely, the transport operators take an accountability for the maximum distance or fare, which does not regards as appropriate. Therefore, this article examines problems of existing commercial act with respect to multimodal transport and main points of the amendment in 2015, and suggests complements for them as well.

Ship finance is closely related to shipping industry, shipbuilding industry and banking industry and, therefore, complex contractual relationship exists under ship finance. A ship is the most important asset in a shipping company. A price of ship is very expensive and shipbuilding is long-term process. A buyer, therefore, worries about default or bankruptcy of a builder in the course of shipbuilding. So, the buyer asks for refund guarantee regarding a shipbuilding contract. As an applicant, the builder makes an effort to obtain the refund guarantee from a guarantor. Usually, a commercial bank becomes a guarantor. This refund guarantee is a kind of independent bank guarantees and the buyer becomes a beneficiary under refund guarantee. One of significant characteristics of refund guarantee is independence. According to the independence, refund guarantee is independent of the shipbuilding contract which is an underlying contract. The guarantor, therefore, irrevocably and unconditionally guarantees repayment of advance payment. However, the independence of refund guarantee is not absolute. Therefore, the independence of refund guarantee should be limited under the principle of prohibition of abuse of a right. In this connection, the Korea Supreme Court decided the refund guarantee case and made clear legal standard of abuse of a right. In conclusion, first, the independence of refund guarantee should be restricted under the principle of prohibition of abuse of a right. Second, when the abuse of a right of a beneficiary is objectively clear, a guarantor can refuse repayment of advance payment in spite of the independence of refund guarantee.