East Asia in A New Legal Landscape: FTAs and Dispute Settlement

  • Author: Jaemin Lee
  • Publication Date: August / 2022
  • Publisher: SNU Press

Introduction

1.1 The New Institutional Framework: Globalization and Legal Disputes

1.2 Legal Norms that Affect Sovereign States, Transnational Corporations and Individuals

1.3 Relationship between International Law and Domestic Law

1.3.1 Monism – Instant Incorporation of Treaties into Domestic Law

1.3.2 Dualism – Treaties’ Transformation into Domestic Law through Special Procedure

1.3.3 Two Legal Systems in the World: Anglo-American Legal System and Continental Legal System

1.3.4 Overlapping Application of International Law and Domestic Law

1.4 Distinction between International Law and Domestic Law

 

Chapter II: International Economic Disputes and their Settlement

2.1 Legal Disputes and Remedies

2.1.1 Legal Disputes Arising from International Activities

2.1.2 Internatioanl Economic Law Related Disputes

2.1.3 Means to Resolve International Legal Disputes

2.1.4 Dispute Settlement Mechanism Available to Key Entities

2.2 International Investment Law and Investment Dispute Settlement

2.2.1 Overview of Domestic Regulation Affecting Foreign Investment: Korea’s Example

2.2.2 Situations in China

2.2.3 Situation in Japan

2.2.4 Evaluation and Assessment: Claims on Infringement of Domestic Regularatory Authority

2.3 International Trade Law and Trade Dispute Settlement

2.3.1 Overview of WTO/FTA Agreements

2.3.2 Nature of Rights and Obligations under the WTO/FTA Agreements

2.3.3 WTO/FTA Dispute Settlement Proceedings

2.3.4 Evaluation and Assessment: Surge of Protectionism and Ensuing Disputes

2.4 International Economic Law Disputes at Domestic Courts

2.4.1 Sovereign Immunity; Absolute Sovereign Immunity; Restrictive Sovereign Immunity; Act of State Doctrine

2.4.2 Right of Diplomatic Protection

 

Chapter III: Emergence of FTAs in the Multilateral Trading Regime

3.1 Current Status of Multilateral Trading Regime under the WTO

3.2 Current Status of Doha Round Negotiation

3.3 Reasons Behind the Recent Surge of FTAs in East Asia

3.4 WTO vs. FTA: A Comparison

3.5 Treatment of FTAs under the WTO Regime

3.5.1 Article XXIV of GATT

3.5.2 Article V of GATS

3.6 Changing Perception on Multilateralism in East Asia

3.6.1 Providing New Platform for Access to Foreign Market for SMEs

3.6.2 Facilitating Attraction of Foreign Direct Investment:

3.6.3 Creating New Business Models through FTA

3.6.4 Securing Dominance in the Global Trade Market

3.7 FTAs in East Asia

3.7.1 Overview of Positions of China, Japan and Korea regarding FTA

3.7.2 Comparison of Positions of Three States Regarding FTAs

3.7.3 New Attempt of Economic Integration in East Asia: Korea’s “Eurasian Initiative” and China’s “One Belt One Road” Project

3.7.4 Assessment of East Asian FTAs in the Global FTA Regime

3.8 Difficulty of Proper Evaluation of FTA’s Impact

3.9. Specific Challenges for Korea China and Japan: Balkanizaiton of the Global Trading Regime

3.9.1 Why Are Different Rules Included and Tested in Different FTAs?

3.9.2 Examples of New Rules of DSMs in Recent FTAs of Korea, China and Japan

3.9.3 Side Effects of New Experiments in FTAs

3.9.4 New Rules of DSMs in FTAs and New Challenges

 

Chapter IV: An Anatomy of Trade Disputes in East Asia

4.1 Key Issues in Regional Trade Relations

4.1.1 Restricted Access to the Domestic Market

4.2 Various Fora of Tade Disputes

4.2.1 Emergence of FTA Era and AD/CVD Investigations

4.2.2 Overview of Anti-dumping Investigations

4.2.3 Increasing Awareness of Procedural Issues

4.2.4 Inevitable Increase in the Number of AD/CVD Investigations

4.3 Overview of Regional Disputes Pending at the WTO Dispute Settlement Procedure

4.3.1 Perceptions of the Private Sector

4.3.2 Judicial reviews

4.4 Dealing with NTBs

4.4.1 Inherent Complexities about NTBs

4.5 East Asia’s FTAs and NTBs

4.5.1 Provisions to Identify NTBs

4.5.2 Special Dispute Settlement Mechanism in Korea-China FTA

 

Chapter V: An Anatomy of East Asia -Investment Disputes

5.1 Increasing Investment and Increasing Sensitivities

5.1.1 Sources of Concern

5.1.2 Addressing the Concern

5.2 Status of Outstanding Investment Arbitrations

5.3 Implications of Recent Development

 

Chapter VI: Key Elements And Basic Structure of Dispute Settlement Proceedings in FTAs

6.1 Introduction to Dispute Settlement Procedures in Major FTAs

6.1.1 Historical Background Reflects Views of Developed Countries in Europe and the United States

6.1.2 Cultural Background Reflects Litigation Cultures Prevailing the Western Countries

6.1.3 Legal Background- Largely Follows the WTO Regime which in Turn Incorporates Anglo-Ametican Jurisprudence

6.2 Making a Better Dispute Settlement Mechanism for Regional Trade – Lessons and Observations

6.3 Relationship with Multilateral Dispute Settlement Procedure under the WTO

6.3.1 Jurisdictional Division

6.3.2 Forum Shopping Problem

 

Chapter VII: An Anatomy of East Asian FTA DSM – Bilateral Dispute Settlement

7.1 Unique Aspects of East Asia Concerning Dispute Settlement

7.1.1 Asian Culture and Legal Dispute

7.1.2 Asian Culture and Internatioal Legal Disputes

7.1.3 Historical Ramifications in East Asia and Internatioanl Legal Disputes

7.1.4 Unique Aspects in East Asia Relating to Trade Disputes

7.1.5 Unique Aspects in East Asia Relating to Investment Disputes

7.2 Challenges Facing DSMs of East Asian FTAs

7.2.1. Sino-US Confrontation and Its Impact

7.2.2 The Trap for FTA DSMs – Difficulty and Complexity of FTA Implentation

7.3. Key Characteristics of Bilateral Disputes Settlement Mechanism In East Asia

7.4 Commonalities of Bilateral Disputes Settlement Mechanism in East Asia

7.5 National Variations

7.5.1 Korea

7.5.2 Japan

7.5.3 China

7.6 Utilization of the Bilateral Dispute Settlement Mechanism

7.7 Systemic Problems and Weakness

7.8 Suggestions for Reform

 

Chapter VIII: Formulating Future DSMs in FTAs of East Asia

8.1 A Need for a Creative Approach to Dispute Settlement Proceedings in East Asia

8.1.1 Reflecting Unique Aspects of East Asian Culture and Situations

8.1.2 Reflecting Economic Dominance of the Region in the Global Trade

8.1.3 Resolving Disputes Effectively

8.1.4 Overcoming Structural Problems of the Present Dispute Settlement Mechanism

8.2 Traits of New DSMs

8.2.1. Activation and Diversification of Non-binding DSMs

8.2.2 Shortening the Timeframe

8.2.3 Standing Roseter of Panel

8.2.4. Assurance of Effective Remedy

8.2.5. Identification and Resoultion of NTB Disputes

8.2.6 Establishment of an Appellate Mechanism

8.2.7 Cautious Approach to Expanded Transparency

8.3 Comparative Study: Dispute Settlement Mechanisms in Recent US FTAs

8.3.1 State-to-State Dispute Settlement Mechanism

8.3.2 Investor State Arbitration Mechanism

8.3.3 Joint Committees

8.3.4 Assessment and Challenges

8.3.5 Overall Observation

 

Chapter IX: Conclusion – FTAs and DSMs in East Asia and Contribution to the Global Trading Regime

Appendix I

Provisions Governing Dispute Settlement Mechanisms

  1. Japan
  2. Korea
  3. China

Appendix II

List of Investment Disputes Involving East Asian States

  1. Japan
  2. Korea
  3. China

Appendix III

List of Trade Disputes Involving East Asian State

  1. Japan
  2. Korea
  3. China

Appendix IV

Anti-dumping Investigations Involving East Asian Countries

  1. Japan