Investment Treaty Arbitration

Last verified on Monday 28th September 2020

Investment Treaty Arbitration: South Korea

Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

Lee & Ko

Overview of investment treaty programme

1. What are the key features of the investment treaties to which this country is a party?

South Korea

(a) BITs/MITs

BIT contracting party or MIT Substantive protections Procedural rights
Fair and equitable treatment (FET) Expropriation Protection and security Most-favoured-nation (MFN) Umbrella clause Cooling-off period Local courts Arbitration

Albania (15 December 2003)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Algeria (30 September 2001)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Argentina (24 September 1996)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Armenia (3 October 2019)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Austria (1 November 1991)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Azerbaijan (25 January 2008)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Bangladesh (6 October 1988)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Belarus (9 August 1997)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Belgium-Luxembourg Economic Union (3 September 1976)

Yes

Yes

Yes

Yes

No

None

Yes

Yes

Brazil (not in force, text not publicly released)

               

Brunei (30 October 2003)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Bulgaria (16 November 2006)

Yes

Yes

Yes

Yes

No

3 months

Yes

Yes

Burkina Faso (14 April 2010)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Cambodia (12 March 1997)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Cameroon (13 April 2018)

Colombia (not in force, text not publicly released)

               

China (1 December 2007)

Yes

Yes

Yes

Yes

Yes

4 months

Yes

Yes

China–Japan (17 May 2014)

Yes

Yes

Yes

Yes

Yes

4 months

Yes

Yes

Congo (13 August 2011)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Congo (not in force, text not publicly released)

Costa Rica (25 August 2002)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Croatia (31 May 2006)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Czech Republic (16 March 1995)

Yes

Yes

Yes

Yes

No

3 months

No

Yes

Denmark (2 June 1988)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Dominican Republic (21 May 2008)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Egypt (25 May 1997)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

El Salvador (25 May 2002)

Yes

Yes

Yes

Yes

Yes

3months

No

Yes

Finland (11 May 1996)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

France (1 February 1979)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Germany (15 January 1967)

Yes

Yes

Yes

Yes

Yes

None

No

Yes

Greece (4 November 1995)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Guatemala (17 August 2002)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Guyana (20 August 2006)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Honduras (19 July 2001)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Hong Kong (30 July 1997)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Hungary (1 January 1989)

Yes

No

Yes

Yes

No

6 months

Yes

Yes

India (7 May 1996)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Indonesia (10 March 1994)

Yes

Yes

Yes

Yes

No

12 months

Yes

Yes

Iran (31 March 2006)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Israel (19 June 2003)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Italy (26 June 1992)

Yes

Yes

No

Yes

No

6 months

No

Yes

Jamaica (5 November 2007)

Yes

Yes

Yes

Yes

Yes

9 months

Yes

Yes

Japan (1 January 2003)

Yes

Yes

Yes

Yes

No

3 months

No

Yes

Jordan (25 December 2004)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Kazakhstan (26 December 1996)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Kenya (3 May 2017)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Kuwait (31 August 2007)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Kyrgyzstan (8 July 2008)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Laos (14 June 1996)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Latvia (26 January 1997)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Lebanon (21 December 2006)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Libya (28 March 2007)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Lithuania (9 November 1993)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Malaysia (31 March 1989)

Yes

Yes

Yes

Yes

No

3 months

Yes

Yes

Mauritania (21 July 2006)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Mauritius (7 March 2008)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Mexico (27 June 2002)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Mongolia (30 April 1991)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Morocco (8 May 2001)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Myanmar (31 October 2018)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Netherlands (1 March 2005)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Nicaragua (22 June 2001)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Nigeria (1 February 1999)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Oman (10 February 2004)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Pakistan (15 April 1990)

Yes

Yes

Yes

Yes

Yes

None

No

No

Panama (8 February 2002)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Paraguay (6 August 1993)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Philippines (25 September 1996)

No

Yes

No

Yes

No

3 months

Yes

Yes

Poland (2 February 1990)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Portugal (11 August 1996)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Qatar (16 May 1999)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Romania (11 January 2008)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Russia (10 July 1991)

Yes

Yes

Yes

Yes

Yes

3 months

No

Yes

Rwanda (16 February 2013)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Saudi Arabia (19 February 2003)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Senegal (2 September 1985)

Yes

Yes

No

Yes

No

6 months

No

Yes

Slovak Republic (7 February 2006)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

South Africa (6 June 1997)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Spain (19 July 1994)

Yes

Yes

Yes

Yes

No

6 months

No

Yes

Sri Lanka (15 July 1980)

Yes

Yes

Yes

Yes

No

12 months

Yes

Yes

Sweden (18 June 1997)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Tajikistan (13 August 1995)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Tanzania (not in force)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Thailand (30 September 1989)

Yes

Yes

Yes

Yes

Yes

6 months

No

No

Trinidad and Tobago (27 November 2003)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Tunisia (28 November 1975)

Yes

Yes

Yes

Yes

No

None

No

Yes

Ukraine (3 November 1997)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

United Arab Emirates (15 June 2004)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

United Kingdom (4 March 1976)

Yes

Yes

Yes

Yes

Yes

3 months

Yes

Yes

Uruguay (8 December 2011)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Uzbekistan (20 November 1992)

Yes

Yes

Yes

Yes

Yes

6 months

No

Yes

Vietnam (5 June 2004)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

Zimbabwe (not in force, text not publicly released)

               

ASEAN (1 June 2007)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Australia (12 December 2014)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Canada (1 January 2015)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Republics of Central America FTA (1 October 2019)

Yes

Yes

Yes

Yes

No

8 months

Yes

Yes

Chile (1 April 2004)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

China (20 December 2015)

Yes

Yes

Yes

Yes

No

4 months

Yes

Yes

Colombia (15 July 2016)

Yes

Yes

Yes

Yes

No

8 months

Yes

Yes

EFTA (10 January 2006)

Yes

Yes

Yes

Yes

Yes

6 months

Yes

Yes

European Union (1 July 2011)

No

No

No

Yes

No

None

No

No

India CEPA (1 January 2010)

Yes

Yes

Yes

No

No

6 months

Yes

Yes

Indonesia CEPA (not in force)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

New Zealand (20 December 2015)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Peru (1 August 2011)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Singapore (2 March 2006)

Yes

Yes

Yes

No

No

6 months

Yes

Yes

Turkey (1 August 2018)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

United States (15 March 2012)

Yes

Yes

Yes

Yes

No1

6 months

Yes

Yes

Vietnam (20 December 2015)

Yes

Yes

Yes

Yes

No

6 months

Yes

Yes

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

Qualifying criteria - any unique or distinguishing features?

2. What are the distinguishing features of the definition of “investor” in this country’s investment treaties?

South Korea

Issue Distinguishing features in relation to the definition of ‘investor’
General definition

In the majority of Korea’s investment treaties, the term ‘investor’ is defined broadly as ‘any natural or juridical persons of either Contracting Party who invest in the territory of the other Contracting Party’.

The Kuwait BIT includes in the definition of ‘investor’ the ‘Government of that Contracting Party’, meaning that even government agencies that invest in the other contracting party will be protected by the terms of the BIT.

Natural persons

The term ‘natural persons’ is usually defined to mean natural persons having the nationality of the relevant contracting party in accordance with its laws. However, the ASEAN FTA extends the definition of ‘natural persons’ to include not only those possessing the nationality or citizenship of the relevant contracting party, but also those possessing the ‘right of permanent residence’.

Dual nationals

Some of Korea’s investment treaties provide that a natural person who is a dual national shall be deemed to be exclusively a national of the state of his or her ‘dominant and effective nationality’ (eg, Rwanda BIT, Australia, Canada, Colombia, United States and New Zealand FTAs).

Juridicial persons

The term ‘juridical persons’ is usually defined to mean any entity that conducts economic activities such as companies, public institutions, authorities, foundations, partnerships, firms, establishments, organisations, corporations or associations incorporated or constituted in accordance with the laws and regulations of the relevant contracting party.

Korea’s investment treaties generally extend protection to all types of juridical persons, regardless of whether the company has limited liability, non-profit status, or whether the company is government-owned or privately owned (eg, Malaysia, the Philippines, Saudi Arabia, South Africa BITs, ASEAN, China FTAs and India CEPA).

Business/economic activities

The Iran BIT limits the scope of juridical persons to those whose ‘headquarters or their real economic activities are located in the territory of that Contracting Party’. Similarly, some FTAs (eg, EFTA, India CEPA,New Zealand) and BITs (Japan, Dominican Republic, Greece, Turkey, the Philippines and UK BITs) require that a juridical person should be carrying out ‘substantial business activities’ within a party to be considered as an investor of that party.

Denial of benefits

Many of Korea’s FTAs provide the parties with discretion to deny protection to juridical persons of the other party, in cases such as where they are owned or controlled by a non-party, and:

  • the denying party does not maintain normal economic relations with the non-party (eg, China, United States FTAs); or
  • the denying party adopts or maintains measures with respect to the non-party that prohibit transactions with the enterprise (eg, Australia, Canada, Colombia and United States FTAs); or
  • the enterprise has no substantive business operations in the territory of the other party (eg, Australia, Canada, Colombia, New Zealand, Peru, United States FTAs and India CEPA).

Before Lone Star filed an investor-state dispute (ISD) against Korea, only the Korea–Japan BIT contained a denial of benefits clause. However, following the Lone Star dispute, which culminated in the second ISD suit in December 2014, Korea now includes the denial of benefits clause in all BITs (eg, Uruguay, Kenya BITs and Korea–Japan–China TIT) at the request of the National Assembly.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

3. What are the distinguishing features of the definition of "investment" in this country’s investment treaties?

South Korea

Issue Distinguishing features in relation to the concept of ‘investment’
Eligible assets

In Korea’s investment treaties, ‘investment’ is usually defined broadly as ‘every kind of asset invested by investors of one Contracting Party in the territory of the other Contracting Party’. The definition usually also sets forth a non-exclusive list of such assets, including assets such as moveable and immoveable property and other property rights, shares or any other form of participation in a company, intellectual property rights, business concessions, etc.

Korea’s investment treaties generally cover all kinds of investments regardless of the type of investment (direct or indirect investment, portfolio investment, etc). Some BITs expressly include in the definition of ‘investment’ assets that are ‘indirectly’ controlled by an investor (eg, Netherlands, Rwanda BITs, Colombia FTA).

Some BITs specifically require investments to be ‘connected with economic activities’ (eg, Hungary, Panama BITs).

Exclusion

Some investment treaties exclude certain activities or assets from the definition of ‘investment’. Examples of excluded assets are:

  • a claim to money that arises solely from commercial contracts, unless it is a loan that has the characteristics of an investment (eg, Mexico BIT, ASEAN, Chile, Peru, United States, Vietnam FTAs and India CEPA);
  • a claim to money that arises solely from the extension of credit in connection with a commercial transaction, such as trade financing (eg, Mexico BIT, ASEAN, Chile, Vietnam FTAs and India CEPA);
  • market share, market access, expected gains and opportunities for profit-making (eg, Rwanda, Uruguay BITs);
  • public debt operations (eg, Colombia FTA); and
  • an order entered in a judicial or administrative action (eg, Colombia FTA).
Commencement of treaty protection

Many of Korea’s investment treaties extend protection to investments made before the entry into force of the relevant treaty (eg, Denmark, Israel, Jamaica, Poland and Rwanda BITs). Meanwhile, some BITs state that the BIT shall apply only to investments that were made after the BIT has entered into force (eg, Lithuania BIT). The treaties never find application on disputes that have arisen prior to their entry into force or disputes directly related to events which occurred prior to its entry into force. Rarely, the treaties indicate the exact date of the commencement of the treaty protection (eg, Czech BIT: 1 January 1950).

Compliance with national laws

Some investment treaties require that the investment must be acquired under the law of the host country of the investment’ (eg, Spain BIT) or ‘in accordance with the laws and regulations of the Contracting Party in whose territory the investment is made’ (eg, Argentina, Belarus, Brunei, Oman, Poland, Romania and Senegal BITs). Here, the laws refer to all national laws in general, and not just those directly related to foreign investment.

Alteration in form

The majority of Korea’s BITs and some FTAs contain a provision stating that any change of the form in which assets are invested or reinvested shall not affect their character as an investment. However, some investment treaties note that this is conditioned on the premise that the change in the form of investment should not contradict the laws and regulations of the relevant contracting party (eg, Portugal and Saudi Arabia BITs).

Characteristics of an investment

A few of Korea’s BITs (eg, Rwanda, Uruguay BITs, Korea, China and Japan TITs) and all of the FTAs, except the EFTA and the Korea–EU FTA, specifically require that the relevant assets must have the ‘characteristics of an investment’, such as the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk.

Approval/admission of investment

Some investment treaties specifically require that the investment must be approved by the competent authority of the contracting party in whose territory the investment is made (eg, Bangladesh, Iran, Pakistan and Sri Lanka BITs), or must be granted admission in accordance with the applicable laws of each contracting party (eg, Indonesia, Jamaica BIT and Vietnam FTA). For example, the Malaysia BIT requires that investments should accord with ‘administrative practice’ of the Contracting Party in which the investment is being made and the investment must have been made in projects classified by the appropriate Ministry of Malaysia as an ‘approved project’. Also, the investments under the Korea–ASEAN FTA must be specifically approved in writing)2 by its competent authority.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

Substantive protections - any unique or distinguishing features?

4. What are the distinguishing features of the fair and equitable treatment standard in this country’s investment treaties?

South Korea

Issue Distinguishing features of the fair and equitable treatment standard
Illustrations of the Fair and Equitable Treatment (FET) standard

The great majority of Korea’s BITs and FTAs include assurances for ‘fair and equitable treatment’ to investments. Similarly, investment-related treaties and instruments such as the Korea–Vietnam FTA, MIGA Convention and the World Bank Investment Guidelines provide for the same standard.

Other BITs contain slight variations. For example, the Italy BIT and the Pacific Basin Investment Charter provides for ‘equitable and reasonable’ treatment. For example, the Italy BIT provided for ‘equitable and reasonable’ treatment and the Pacific Basin Investment Charter Provided for ‘fair and reasonable’ treatment.

Relationship with customary international law

The generally accepted view for Korea’s BITs is that the FET standard is limited to treatment that is required under customary international law, and does not provide investors with a higher or additional level of treatment.

The recent Rwanda BIT expressly prescribes customary international law as the standard for treatment of investors. Likewise, the recent Uruguay BIT establishes customary international law as the ‘minimum standard’ of treatment and the Pacific Basin Investment Charter provided for ‘fair and reasonable’ treatment.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

5. What are the distinguishing features of the protection against expropriation standard in this country’s investment treaties?

South Korea

Issue Distinguishing features of the ‘expropriation’ standard
Right to regulate for a public purpose

The majority of Korea’s BITs and FTAs include the ‘public purpose’ exception. There are several variations to this exception such as ‘public interest’ (Congo, Hungary, Morocco and Senegal BITs), ‘public utility’ (Dominican Republic BIT), ‘public benefit’ (Germany and Saudi Arabia BITs) and ‘public purpose or public necessity’ (Guatemala BIT).

Some treaties are more specific, (eg, ‘in the public interest, public use or in the interest of national defense’ (Philippines BIT).) Others cast a wider net by providing for ‘public benefit or social interest’ (El Salvador BIT).

Two BITs are without a public purpose exception (Switzerland and Tunisia BITs).

In accordance with the due process of law/legal procedure

While ‘due process’ features prominently in Korean BITS and FTAs, it does not appear in a few (eg, Belarus, Senegal, Thailand, United Arab Emirates and the United Kingdom BITs).

Some BITs require that the expropriation be carried out ‘in accordance with legal procedures’ (eg, Albania, Cambodia, Lithuania, Qatar, Slovakia, Tajikistan BITs). Others provide that expropriation should be carried out ‘in accordance with its laws’ (eg, India, Nigeria, Pakistan, Spain, Turkey BITs).

The more specific Finland BIT provides for expropriation ‘under due process of law in accordance with a legal procedure of each Contracting Party and international law’, while the Tunisia BIT simply refers to international law.

Right to compensation

Except for the China and France BITs, most of Korea’s BITs provide for ‘prompt, adequate and effective’ compensation, with slight variations in the wording. As shown by this wording, most of Korea’s BITs adopt the Hull formula, meaning that the investor should be granted, within a reasonable time (prompt), compensation in an amount equal to the fair market value of the expropriated investment (adequate), in a freely transferable and exchangeable currency (effective). The Organisation for Economic Co-operation and Development Convention on the Protection of Foreign Property, APEC Non-Binding Investment Principles, the Korea–Vietnam FTA and Korea–New Zealand FTA also contain the same provision.

The Mexico and Netherlands BITs require ‘just compensation’.

The Pacific Basin Investment Charter requires ‘full and prompt settlement’.

Fair market value

Most of Korea’s BITs and FTAs calculate the ‘market value’ or the ‘fair market value’ of the expropriated investments immediately before expropriation was taken or before impending expropriation became public knowledge, whichever is earlier.

Three treaties consider the ‘actual value of the investment expropriated’ (Austria, Denmark and France BITs).

Provision for the payment of interest is a standard feature in Korea’s BITs.

Right to review by local court/ competent/independent authority

Typically, Korea’s BITs provide the investor with a ‘right to prompt review’. Other instruments such as the Korea–China FTA and the Korea–China–Japan trilateral investment agreement provide the same right.A number of BITs do not mention the right to review (eg, Finland, Iran, Italy, Pakistan, Senegal and Turkey BITs).

Right to arbitration

Most of Korea’s BITs contain no express right to arbitration in the event of expropriation.

The Austria BIT provides a limited right of review of the amount and payment provisions of compensation.

The Pacific Basin Investment Charter allows submission to an ‘arbitrator acceptable to both parties’ where there is disagreement over the amount of compensation.

Indirect expropriation

All of Korea’s BITs except Austria, Germany and Hungary BITs provide protection against indirect expropriation.

Likewise, instruments such as the OECD Convention on the Protection of Foreign Property, Korea-China FTA, Korea-India CEPA, Korea–US FTA, Pacific Basin Investment Charter, and the MIGA Convention protect investors against indirect investment.

Precise terms range from ‘indirect expropriation’ (eg, Switzerland, Thailand, Tunisia, Uruguay BITs, Korea-India CEPA and Korea–US FTA), to ‘any other measure having similar effect’ (Pacific Basin Investment Charter and MIGA Convention).

Expropriation of land

The Korea–Vietnam FTA provides that any measure of expropriation relating to land shall be made ‘in accordance with domestic laws and regulations’.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

6. What are the distinguishing features of the national treatment/most-favoured-nation treatment standard in this country’s investment treaties?

South Korea

Issue Distinguishing features of the ‘national treatment’ and/or ‘most favoured nation’ standard
Scope

Most of Korea’s BITs and FTAs include national treatment and MFN provisions.

Typically, the equality of treatment applies to investments, returns of investments and investors of the contracting states or third party states, or to the operation, management, maintenance, use, enjoyment or disposal of investments.

The Japan BIT extends the application to the ‘establishment, acquisition, expansion’ of investments, while the Paraguay BIT also applies to ‘extension, sale and liquidation’ of investments.

The Turkey BIT extends coverage to ‘management and control over business activities’.

The Korea–Australia FTA covers ‘establishment, acquisition, expansion, management, conduct, operation and sale or other disposition of investments’.

The Korea–US FTA goes a step further and includes not only national treatment but also the treatment to be accorded by a party with respect to regional levels of government.

Current limitations

Many of Korea’s BITs state that the provision of national treatment and MFN status does not extend to the benefits of membership of a customs union, a free trade area, a common market, economic community/union or to taxation agreements, arrangements, legislation or conventions. Many FTAs and the Korea–China–Japan trilateral investment agreement also provide the same, and extend the limitation to any bilateral and multilateral international agreements. However, some FTAs such as with Peru, the US, Turkey, Australia, New Zealand, and Colombia do not have this exception of MFN.

The Nicaragua BIT excludes ‘deductions, fiscal exemption and any other similar concessions on taxation’.

Limitation on national treatment and MFN

Some of Korea's BITs create specific exceptions to the national treatment and MFN obligations.

The Austria BIT provides an exception for any regulation to ‘facilitate the frontier traffic’. Similarly, the China and Italy BITs provide an exception for ‘frontier trade’.

The Guyana BIT reserves a right to grant special incentives to its nationals to ‘stimulate the creation and growth of local industries’.

The Rwanda BIT provides that national treatment and MFN do not apply to government procurement, subsidies or grants provided by a party, including ‘government-supported loans, guarantees and insurance’.

The South Africa BIT stipulates that any agreement or arrangement relating to special advantages accorded to the development of financial institutions will be excluded.

The Japan BIT provides a long list of exceptions including measures for the protection of essential security interests, measures in time of war, armed conflict or other emergency, measures for non-proliferation of weapons, measures taken for international peace and security, measures necessary to protect human, animal or plant life or health or public order.

Extension of the treatment

Notably, the China BIT expressly provides that national treatment and MFN extends to access to courts, administrative tribunals and authorities both in pursuit and in defence of their rights.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

7. What are the distinguishing features of the obligation to provide protection and security to qualifying investments in this country’s investment treaties?

South Korea

Issue Distinguishing features of the ‘protection and security’ standard
Scope

An overwhelming majority of Korean BITs provide for ‘full protection and security’ (eg, Argentina, Cambodia, Egypt, Hong Kong, Mexico, Romania, Ukraine and UK BITs). Similarly, it appears in most of Korean FTAs such as the Korea–Vietnam and Korea–US FTA.

The precise formula for the protection and security standard varies among the BITs. The Paraguay, Spain, Sri Lanka and Switzerland BITs simply provide for ‘protection’, while the Belarus BIT, the MIGA Convention and the World Bank Investment Guidelines focus on ‘legal protection’.

The Iran BIT refers to ‘full legal protection and fair treatment’.

Other BITs provide a more flexible standard such as ‘adequate protection and security’ (Indonesia BIT) and ‘most constant protection and security’ (Bangladesh and Thailand BITs). The Italy and Philippines BITs only contain general provisions on the protection of investments in the preamble to the BITs.

Customary international law on protection and security

The general understanding is that the protection and security standard in Korea’s BITs would be limited to the minimum standard of treatment that is required under customary international law, and would not entitle investors/investments to treatment in addition to or beyond that standard. The Rwanda BIT, Korea–China FTA, Korea–New Zealand FTA, Korea–Australia FTA and the Korea–Columbia FTA expressly provide that the concept of ‘protection and security’ shall be limited to the customary international law minimum standard of treatment.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

8. What are the distinguishing features of the umbrella clauses contained within this country’s investment treaties?

South Korea

Issue Distinguishing features of any ‘umbrella clause’
Scope

Most of Korea’s BITs contain an umbrella clause and reads along the lines of: ‘Each Contracting Party shall observe any other obligation it may have entered into with regard to investments in its territory by investors of the other Contracting Party.’ The Iran and Paraguay BITs ‘guarantee the observance of the commitments’.

A few of Korea’s BITs do not include an umbrella clause (eg, Bulgaria, Czech Republic, Egypt, Finland, Malaysia, Philippines, Slovakia, Sweden and UAE BITs).

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

9. What are the other most important substantive rights provided to qualifying investors in this country?

South Korea

Issue Other substantive protections
Free transfer of payments

Albeit slight variations in the wording, most of Korea’s BITs and FTAs guarantee the free transfer of all payments relating to investments and returns.

Many BITs and FTAs guarantee prompt transfer by reference to ‘without delay’ (eg, China, Greece, HK, Jamaica, Korea–Australia FTA, Korea–Peru FTA and Korea–Turkey FTA, ‘without unreasonable delay’ (Indonesia BIT), or ‘without undue restriction or delay’ (eg, Azerbaijan, Burkina Faso, Cost Rica, Dominican Republic, El Salvador, Guatemala, Honduras and Mauritius BITs).

The Kuwait BIT stipulates that if there is any delay in effecting the transfer, the investor is entitled to recover interest.

Certain BITs condition the free transfer on the right to exercise powers conferred by its laws and consistent with its rights and obligations as a member of the International Monetary Fund (Bangladesh and Lithuania BITs).

Others require fulfilment of tax and public fee obligations (Belarus BIT), compliance with tax obligations (Indonesia and Saudi Arabia BITs) or the fulfilment of legal obligations (Mongolia and Romania BITs).

Restrictions are found in several BITs. The Sri Lanka and UK BITs provide that free transfer may be restricted in ‘exceptional financial or economic circumstances’. The Japan and Mexico BITs may prevent a transfer upon the application of laws relating to bankruptcy, insolvency, protection of creditors’ rights, issuing trading or dealing in securities, criminal or penal offences, or ensuring compliance with orders or judgments in adjudicatory proceedings. Similar restrictions appear in several FTAs (Korea-China, Korea–Peru and Korea–Vietnam FTAs).

Notably, the Rwanda and Slovakia BITs provide that transfer may be restricted in the event of ‘serious balance of payments and external financial difficulties or threat’, or in exceptional cases where, movements of capital ‘cause or threaten to cause serious difficulties for macroeconomic management’, with particular reference to monetary and exchange rate policies.

A contracting party may require ‘reports of currency transfers’ (Indonesia and Jamaica BITs).

At least one BIT allows the investor and the contracting party to decide the ‘mechanism of repatriation or transfers’ (Iran BIT).

Non-impairment

Some of Korea’s BITs impose upon the contracting party an obligation not to impair by unreasonable or discriminatory measures the management, maintenance, use, enjoyment or disposal of investments. The Spain BIT also includes expansion and sale, while the Sweden BIT extends to acquisition of goods and services and sale of their production.

The Portugal and Trinidad and Tobago BITs prohibit ‘unreasonable, arbitrary or discriminatory measures’.

The Greece and Spain BITs prohibit ‘unjustifiable or discriminatory measures’.

Other BITs do not address impairment separately but treat it as part of national treatment/MFN.

Armed conflict/civil unrest

With the exception of the Austria, Azerbaijan and Switzerland BITs, Korea’s investment treaties protect investors against war or other armed conflict, state of national emergency, revolt, insurrection, riot or other similar situations.

Likewise, the treaties provide recourse to restitution, indemnification, compensation or other forms of settlement accorded to own investors.

The Japan BIT provides an extensive list of permissible measures, including measures in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

Procedural rights in this country’s investment treaties

10. Are there any relevant issues related to procedural rights in this country’s investment treaties?

South Korea

Issue

Procedural rights

Fork-in-the-road

Korea’s BITs generally do not include fork-in-the-road provisions. (Exceptionally, some BITs and FTAs such as China, Dominican Republic, Egypt BITs and India CEPA, Colombia FTA, US FTA have fork-in-the-road provisions.)The Malaysia BIT provides that a dispute may be submitted to arbitral proceedings only if the dispute has not already been submitted to the local court, administrative tribunal or agency. Similarly, the Qatar BIT provides that the investor cannot seek international arbitration if the dispute is submitted to court proceedings.

Exhaustion of local remedies / waiver of local remedies

For most of Korea’s BITs, the right to commence arbitration is contingent on the exhaustion of local remedies, and typically assigns a six-month time frame to settle amicably. Other BITs have a shorter or longer time frame, such as three months (eg, UK BIT), nine months (eg, Jamaica BIT) or 12 months (eg, Indonesia and Sri Lanka BITs).

The Mexico and Vietnam BITs and the Korea–China FTA all provide that the investor must waive the right to initiate a claim under any other dispute settlement procedure before commencing arbitration. The Rwanda BIT also requires the investor to withdraw from any procedures already in progress, while the Korea–Vietnam FTA requires the delivery of the waiver when submitting to arbitration.

Interestingly, while the Korea–US FTA also requires the delivery of the waiver when submitting a claim to arbitration under article 11.18.2, an investor of the United States may not submit a claim to arbitration if the investor has alleged a breach of an obligation in any proceedings before a court or administrative tribunal in Korea.

Amicable settlement

The vast majority of Korea’s BITs require an attempt to reach amicable settlement before resorting to arbitration. This may be achieved through consultation (eg, Belarus and Mauritania BITs), diplomatic channels (eg, China and Albania BITs) or negotiation (eg, Denmark and Switzerland BITs).

Choice of international arbitration fora

ICSID arbitration features prominently in Korea’s investment treaties.

The majority of Korea’s BITs provide a choice between ICSID arbitration, ICSID’s Additional Facility arbitration, ad hoc arbitration in accordance with the UNCITRAL Rules, or any other arbitration pursuant to the parties’ agreement.

The Guyana, Trinidad and Tobago and Lebanon BITs also provide ICC arbitration as an option.

Time limits

Three of Korea’s BITs and a handful of FTAs provide a limitation period of three years within which to commence arbitration (eg, Japan, Mexico and Vietnam BITs, and Korea–Singapore, Korea–Columbia, Korea–China and Korea-India, Korea–US FTAs).

Preliminary issues

Some of Korea’s BITs allow an investor to seek injunctive relief before a local court or tribunal (eg, Azerbaijan, Burkina Faso, Dominican Republic, Guyana, Kuwait, Mexico and Rwanda BITs). The Korea–Columbia FTA and the Korea–Asean FTA also contain similar provisions.

Others

The Belarus, Brunei and Nigeria BITs provide that a contracting party cannot raise immunity or payment of compensation under an insurance contract as a defence. The Lebanon BIT provides that the Arbitral Tribunal shall decide the dispute in accordance with applicable rules and principles of international law.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

11. What is the status of this country’s investment treaties?

South Korea

Korea’s investment treaties are fully in force, except Tanzania, Congo DR, Zimbabwe, Brazil, Columbia and Myanmar BITs, and Korea remains open to negotiating new investment treaties.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

Practicalities of commencing an investment treaty claim against this country

12. To which governmental entity should notice of a dispute against this country under an investment treaty be sent? Is there a particular person or office to whom a dispute notice against this country should be addressed?

South Korea

Government entity to which claim notices are sent

Investment treaties which identify the agency to which a notice of dispute should be served (eg, Australia, Canada FTAs) stipulate that the Office of International Legal Affairs, Ministry of Justice of the Republic of Korea is the government entity to which such notices should be delivered.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

13. Which government department or departments manage investment treaty arbitrations on behalf of this country?

South Korea

Government department that manages investment treaty arbitrations

The Office of International Legal Affairs within the Ministry of Justice has a key role in managing the procedure and the administrative affairs related to investment treaty arbitration. Meanwhile, the substantive issues are usually handled by the government agency that is most relevant to the subject of dispute. For instance, in the Hanocal Holding BV and IPIC International BV v Republic of Korea (ICSID Case No. ARB/15/17), the National Tax Service is mainly involved in Arbitration. In the LSF-KEB Holdings SCA and others v Republic of Korea (ICSID Case No. ARB/12/37), the Financial Services Commission is heavily involved in the arbitration.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

14. Are internal or external counsel used, or expected to be used, by the state in investment treaty arbitrations? If external counsel are used, does the state normally go through a formal public procurement process when hiring them?

South Korea

Internal/external counsel

In the handful of cases commenced to date, the Korean government has retained external counsel (one Korean law firm and one foreign law firm as co-counsel). In practice, the Korean government usually selects external counsel by sending a request for proposal to selected law firms and evaluating the answers received from those law firms.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

Practicalities of enforcing an investment treaty claim against this country

15. Has the country signed and ratified the Washington Convention on the Settlement of Investment Disputes between States and Nationals of Other States (1965)? Please identify any legislation implementing the Washington Convention.

South Korea

Washington Convention implementing legislation

Korea signed the Washington Convention on 18 April 1966, and ratified the Convention on 21 February 1967. The Convention entered into force for Korea on 23 March 1967, 30 days after its deposit of ratification. However, there is no specific Korean legislation implementing the Washington Convention.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

16. Has the country signed and ratified the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958) (the New York Convention)? Please identify any legislation implementing the New York Convention.

South Korea

New York Convention implementing legislation

Korea signed and ratified the New York Convention on 8 February 1973. There is no specific Korean legislation implementing the New York Convention.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

17. Does the country have legislation governing non-ICSID investment arbitrations seated within its territory?

South Korea

Legislation governing non-ICSID arbitrations

No, there is no specific legislation.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

18. Does the state have a history of voluntary compliance with adverse investment treaty awards; or have additional proceedings been necessary to enforce these against the state?

South Korea

Compliance with adverse awards

Korean government had lost in the only one case Mohammad Reza Dayyani and others v Republic of Korea, which is still under trial in the British court. Thus, there is no applicable precedent yet.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

19. Describe the national government’s attitude towards investment treaty arbitration

South Korea

Attitude of government towards investment treaty arbitration

Although the Korean government has been supportive of investment treaty arbitration, the investment treaty arbitration system has been a subject of controversy in recent years. One formidable example is the Korea vs. Lone Star Funds case. The US-based private equity firm Lone Star Funds fell into dispute with the Korean government in relation to its previous investment in a Korean bank, and the two parties are currently undergoing ICSID arbitration. As another example, during the negotiations for the Korea–United States FTA, there was heated debate around the Investor-State Dispute Settlement provisions. Lawmakers and the media voiced their objection to this section, arguing that the Korean government could be exposed to arbitrary and unreasonable arbitration awards.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

20. To what extent have local courts been supportive and respectful of investment treaty arbitration, including the enforcement of awards?

South Korea

Attitude of local courts towards investment treaty arbitration

Korean government had lost in the only one case Mohammad Reza Dayyani and others v Republic of Korea, which is still under trial in the British court. Thus, there is no applicable precedent yet.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

National legislation protecting inward investments

21. Is there any national legislation that protects inward foreign investment enacted in this country? Describe the content.

South Korea

National legislation Substantive protections Procedural rights
Foreign Investment Promotion Act

This legislation protects foreign investors and foreign investments from national treatment, and provides for the same treatment as that afforded to Korean nationals.

In addition, it guarantees the transfer of proceeds and compensation relating to foreign investment.

The legislation specifies a number of exceptions whereby foreign investment is restricted, such as to protect the interests of national safety and public order, for reasons of public hygiene or environmental preservation or for the protection of Korea’s morals and customs.

Furthermore, state and local government funding is available for foreign investors in certain limited situations (eg, for the construction of new factories).

Although the legislation does not expressly address access to the local courts or recourse to arbitration, it does establish a ‘foreign investment ombudsman’ to facilitate the resolution of complaints from foreign investors.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

National legislation protecting outgoing foreign investment

22. Does the country have an investment guarantee scheme or offer political risk insurance that protects local investors when investing abroad? If so, what are the qualifying criteria, substantive protections provided and the means by which an investor can invoke the protections?

South Korea

Relevant guarantee scheme Qualifying criteria, substantive protections provided and practical considerations
Multilateral Investment Guarantee Agency

Korea is bound by the Convention establishing the Multilateral Investment Guarantee Agency (MIGA 1985). Under the Convention, Korean nationals and corporate entities are eligible to acquire, for the payment of a premium, political risk insurance from MIGA in respect of investments made in certain developing states provided that certain conditions are met. To be eligible for assistance, the investment must be medium to long term in nature, support the host country’s development goals, comply with MIGA’s Policy on Social and Environmental Sustainability and anticorruption and fraud standards, and also be financially viable.

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

Awards

23. Please provide a list of any available arbitration awards or cases initiated involving this country’s investment treaties.

South Korea

Awards

Jin-Hye Seo v Republic of Korea, Case No. HKIAC/18117. In September 2019, the Tribunal accepted Korea’s preliminary objections and dismissed the claimant’s claims

Mohammad Reza Dayyani and others v Republic of Korea, UNCITRAL, PCA Case No. 2015-38

Pending proceedings

LSF-KEB Holdings SCA and others v. Republic of Korea, ICSID Case No. ARB/12/37

Elliott ASSOCIATES, LP v Republic of Korea, UNCITRAL, PCA Case No. 2018-51

Mason Capital LP and Mason Management LLC v Republic of Korea, PCA Case No. 2018-55

Schindler Holding AG v Republic of Korea, under UNCITRAL Arbitration Rules and Korea–EFTA FTA

A Canadian national v Republic of Korea, under the Korea–Canada FTA

Gale Investments Company LLC v Republic of Korea, under the KORUS FTA

Berjaya Group v Republic of Korea, under the Korea–Malaysia BIT

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

Reading List

24. Please provide a list of any articles or books that discuss this country’s investment treaties.

South Korea

Joongi Kim, The Evolution of Korea’s Modern Investment Treaties and Investor-State Dispute Settlement Provisions, in Vivienne Bath and Luke Nottage, eds, Foreign Investment and Dispute Resolution Law and Practice in Asia (Routledge, 2011)

Joongi Kim, A Bellwether to Korea’s New Frontier in Investor-State Dispute Settlement? The Moscow Convention and Lee Jong Baek v Kyrgyz Republic, Pepperdine Dispute Resolution Law Journal, Vol. 15, 549-565 (2015)

Hi-Taek Shin, Investment Treaty Practice of China, Japan and Korea in Collected Courses of the International Academy for Arbitration Law, Year 2012, Volume 1, at 1 (2015)

Chansik Han et a, Hanil Tuja Hyupjung Haesul [Commentary on Korea-Japan Bilateral Investment Agreement] (Korea Institute of Industry Research, 2003)

Hi-Taek Shin, Korea, in Chester Brown ed., Commentaries on Selected Model Investment Treaties (Oxford University Press, 2013)

Ministry of Justice, Republic of Korea, Hanguk Eui Tuja Hyupjung Haesulseo [Commentary on Korea’s Investment Agreements 2010].

Notes

1 No ‘umbrella clause’ is included,but breach of investment authorisations and agreements are still subject to investor-state dispute settlement under article 11.16.

2 For the purpose of protection, the procedures relating to specific approval in writing shall be in Annex 1 of Korea-ASEAN FTA (Approval in Writing).

Answer contributed by Robert W Wachter, Hyunsoo Joo and Elizabeth J Shin

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