The Scope of Application of North Korea's Foreign Economic Arbitration Act and Foreign Investment Act This article examines whether the Foreign Economic Arbitration Act and the Foreign Investment Act of North Korea apply to South Korean parties or companies. This article analyzes laws and agreements...
The Scope of Application of North Korea's Foreign Economic Arbitration Act and Foreign Investment Act This article examines whether the Foreign Economic Arbitration Act and the Foreign Investment Act of North Korea apply to South Korean parties or companies. This article analyzes laws and agreements related to economic cooperation between South Korea and North Korea. Furthermore, this article compares and evaluates laws related to foreign investment and enacted in North Korea. Now, North Korea's door is closed due to economic sanctions against it, but it will be opened soon. Thus, this article prepares for the future opening of North Korea's markets. Is there a rule of laws in North Korea or just a ruler? Are there laws in North Korea? North Korea has enacted a number of legislation to attract foreign investors, referring to those Chinese laws. For example, North Korea enacted the Foreigner Investment Act, the Foreigner Company Act, the Foreign Investment Bank Act, the Foreign Economic Arbitration Act, the Foreign Economic Contract Act, the International Trade Act, and the Free Economy and Trade Zone Act, among others. Article 2 (2) of the Foreign Investment Law of North Korea states, "Foreign investors are corporations and individuals from other countries investing in our country." It is interpreted that South Korea is not included in the "other countries" of this definition. According to many mutual agreements signed by South Korea and North Korea, the relationship between the two Koreas is a special relation inside the Korean ethnic group. An arbitration between a South Korean party and a North Korean party has the characteristics of both domestic arbitrations and international arbitrations. If the South Korea and North Korea Commercial Arbitration Commission or the Kaesong Industrial Complex Arbitration Commission is not established, the possibility of arbitration by the Chosun International Trade Arbitration Commission, established under North Korea's Foreign Economic Arbitration Act, should be examined. There have been no cases where the Foreign Economic Arbitration Act is applied to disputes between parties of South Korea and North Korea. It might be possible to apply the Foreign Economic Arbitration Act by recognizing the "foreign factor" of a dispute between the South Korean party and North Korean party. It is necessary to raise legislative clarifications by revising the North Korea's Foreign Economic Arbitration Act as to whether Korean parties or companies are included in the scope of this Act's application. Even if it is interpreted that South Korean parties or companies are not included in the scope of North Korea's Foreign Economic Arbitration Act, disputes between South Korean companies and North Korean companies can be resolved by foreign arbitration institutes such as CIETAC in China, HKIAC in Hong Kong, or SIAC in Singapore. Such arbitration awards could be enforced in North Korea pursuant to Article 64 of North Korea's Foreign Economic Arbitration Act. This is because the arbitration awards of foreign arbitration institutes are included in the scope of North Korea's Foreign Economic Arbitration Act. The matter is how to enforce the North Korean laws when a North Korean party or North Korean government does not abide by the laws or their contracts. It is essential for North Korea to join the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and the ICSID Convention (Convention on the Settlement of Investment Disputes Between States and Nationals of Other States).
The Scope of Application of North Korea's Foreign Economic Arbitration Act and Foreign Investment Act This article examines whether the Foreign Economic Arbitration Act and the Foreign Investment Act of North Korea apply to South Korean parties or companies. This article analyzes laws and agreements related to economic cooperation between South Korea and North Korea. Furthermore, this article compares and evaluates laws related to foreign investment and enacted in North Korea. Now, North Korea's door is closed due to economic sanctions against it, but it will be opened soon. Thus, this article prepares for the future opening of North Korea's markets. Is there a rule of laws in North Korea or just a ruler? Are there laws in North Korea? North Korea has enacted a number of legislation to attract foreign investors, referring to those Chinese laws. For example, North Korea enacted the Foreigner Investment Act, the Foreigner Company Act, the Foreign Investment Bank Act, the Foreign Economic Arbitration Act, the Foreign Economic Contract Act, the International Trade Act, and the Free Economy and Trade Zone Act, among others. Article 2 (2) of the Foreign Investment Law of North Korea states, "Foreign investors are corporations and individuals from other countries investing in our country." It is interpreted that South Korea is not included in the "other countries" of this definition. According to many mutual agreements signed by South Korea and North Korea, the relationship between the two Koreas is a special relation inside the Korean ethnic group. An arbitration between a South Korean party and a North Korean party has the characteristics of both domestic arbitrations and international arbitrations. If the South Korea and North Korea Commercial Arbitration Commission or the Kaesong Industrial Complex Arbitration Commission is not established, the possibility of arbitration by the Chosun International Trade Arbitration Commission, established under North Korea's Foreign Economic Arbitration Act, should be examined. There have been no cases where the Foreign Economic Arbitration Act is applied to disputes between parties of South Korea and North Korea. It might be possible to apply the Foreign Economic Arbitration Act by recognizing the "foreign factor" of a dispute between the South Korean party and North Korean party. It is necessary to raise legislative clarifications by revising the North Korea's Foreign Economic Arbitration Act as to whether Korean parties or companies are included in the scope of this Act's application. Even if it is interpreted that South Korean parties or companies are not included in the scope of North Korea's Foreign Economic Arbitration Act, disputes between South Korean companies and North Korean companies can be resolved by foreign arbitration institutes such as CIETAC in China, HKIAC in Hong Kong, or SIAC in Singapore. Such arbitration awards could be enforced in North Korea pursuant to Article 64 of North Korea's Foreign Economic Arbitration Act. This is because the arbitration awards of foreign arbitration institutes are included in the scope of North Korea's Foreign Economic Arbitration Act. The matter is how to enforce the North Korean laws when a North Korean party or North Korean government does not abide by the laws or their contracts. It is essential for North Korea to join the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and the ICSID Convention (Convention on the Settlement of Investment Disputes Between States and Nationals of Other States).
북한은 1993년에 나선경제무역지대를 디자인하는 라선경제무역지대법을 제정했지만 별 다른 성과가 없었다. 나선경제무역지대는 두만강과 동해가 만나는 곳에 위치해 있다. 나진항을 중심으로 나진시와 선봉군을 합쳐 만든 곳이다.
남북한 당사자 간의 분쟁을 조선국제무역중재위원회에서 중재로 해결할 경우의 장점에는 무엇이있는가?
다양한 중재사건에 일관된 규칙을 적용할 때에 자의성을 배제하고 공정성이 확보될 수 있다. 국제적 표준에 발맞추어 인지도 있는 국제중재기관으로 육성하면, 중재에 관련된 국제세미나도 개최하고 국제적으로 홍보도 할 수 있을 것이다. 중국의 예를 보아도 초창기에는 CIETAC 중심으로 국제중재를 발전시켰다.
우리나라와 북한 당사자 간의 중재에서 남한과 북한의 중재인으로만 중재판정부가 구성된다면 어떤 장점이 있는가?
우리나라와 북한 당사자 간의 중재에서 남한과 북한의 중재인으로만 중재판정부가 구성된다면 중재절차를 한국어로 진행할 수 있다는 장점이 있다. 그러나 의장중재인을 제3국 국적의 중재인으로 선임하는 경우에는, 한국어를 할 수 있는 미국 국적의 재미교포, 중국 국적의 조선족 동포, 일본 국적의 재일교포, 또는 러시아 국적의 고려인 동포가 의장중재인이 되는 경우를 제외하고는, 중재절차를 한국어로 진행할 수 없게 될 가능성이 높다.
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