East Asia in a New Legal Landscape

Preface
Introduction

Chapter I
An Overview: Public International Law in the Domestic Plane
1. The New Institutional Framework: Globalization and Legal Disputes
2. Legal Norms That Affect Sovereign States, Transnational Corporations and Individuals
3. Relationship between International Law and Domestic Law
1) Monism: Instant Incorporation of Treaties into Domestic Law
2) Dualism: Transformation of Treaties into Domestic Law through Special Procedure
3) ‌ ‌Two Legal Systems in the World: Anglo-American Legal System and Continental Legal System
4) Overlapping Application of International Law and Domestic Law
4. Distinction between International Law and Domestic Law

Chapter II
International Economic Disputes and Their Settlement
1. Legal Disputes and Remedies
1) Legal Disputes Arising from International Activities
2) International Economic Law Related Disputes
3) Means to Resolve International Legal Disputes
4) Dispute Settlement Mechanism Available to Key Entities
2. International Investment Law and Investment Dispute Settlement
1) Overview of Domestic Regulation Affecting Foreign Investment: Korea’s Example
2) Situations in China
3) Situation in Japan
4) Evaluation and Assessment: Claims on Infringement of Domestic Regularatory Authority
3. International Trade Law and Trade Dispute Settlement
1) Overview of WTO/FTA Agreements
2) Nature of Rights and Obligations under the WTO/FTA Agreements
3) WTO/FTA Dispute Settlement Proceedings
4) Evaluation and Assessment: Surge of Protectionism and Ensuing Disputes
4. International Economic Law Disputes at Domestic Courts
1) Sovereign Immunity; Absolute Sovereign Immunity; Restrictive Sovereign Immunity; Act of State Doctrine
2) Right of Diplomatic Protection

Chapter III
An Anatomy of Trade Disputes in East Asia
1. Key Issues in Regional Trade Relations
2. Various Fora of Trade Disputes
1) Emergence of FTA Era and AD/CVD Investigations
2) Overview of Anti-Dumping Investigations
3) Increasing Awareness of Procedural Issues
4) Inevitable Increase in the Number of AD/CVD Investigations
3. Overview of Regional Disputes Pending at the WTO Dispute Settlement Procedure
1) Perceptions of the Private Sector
2) Judicial Reviews
4. Dealing with NTBs
1) Absence of Consensus on the Definition of NTBs
2) Facilitating Legitimate Government Objectives
5. East Asia’s FTAs and NTBs
1) Provisions to Identify NTBs
2) Special Dispute Settlement Mechanism in Korea-China FTA

Chapter IV
An Anatomy of East Asia Investment Disputes
1. Increasing Investment and Increasing Sensitivities
1) Sources of Concern
2) Addressing the Concern
2. Status of Outstanding Investment Arbitrations
3. Implications of Recent Development

Chapter V
Key Elements and Basic Structure of Dispute Settlement Proceedings in FTAs
1. Emergence of FTAs in the Multilateral Trading Regime
1) Current Status of Multilateral Trading Regime under the WTO
2) Current Status of Doha Round Negotiation
3) Reasons Behind the Recent Surge of FTAs in East Asia
4) WTO vs. FTA: A Comparison
5) Treatment of FTAs under the WTO Regime
6) Changing Perception of Multilateralism in East Asia
7) FTAs in East Asia
8) Difficulty in Proper Evaluation of FTA’s Impact
9) Specific Challenges for Korea, China and Japan: Balkanization of the Global Trading Regime
2. Introduction to Dispute Settlement Procedures in Major FTAs
1) Historical Background Reflecting Views of Western Countries
2) Cultural Background Reflecting Litigation Cultures in Western Countries
3) Legal Background Reflecting Anglo-American Jurisprudence
3. DSMs for Regional Trade: Lessons and Observations
4. Relationship with Multilateral Dispute Settlement Procedure under the WTO
1) Jurisdictional Division
2) Forum Shopping Problem

Chapter VI
An Anatomy of an East Asian FTA DSMs: Bilateral Proceedings
1. Unique Aspects of East Asia Concerning Internatioal Dispute Settlement
1) Asian Culture and Legal Disputes
2) Asian Culture and International Legal Disputes
3) Historical Ramifications in East Asia and International Legal Disputes
4) Unique Aspects in East Asia Relating to Trade Disputes
5) Unique Aspects in East Asia Relating to Investment Disputes
2. Challenges Facing DSMs of East Asian FTAs
1) Sino-US Confrontation and Systemic Impact
2)‌ The Trap for FTA DSMs: Difficulty and Complexity of FTA Implementation
3. Key Characteristics of Bilateral DSMs in East Asia
4. Commonalities of Bilateral DSMs in East Asia
5. National Variations
1) Korea
2) Japan
3) China
6. Utilization of the Bilateral DSMs
7. Systemic Problems and Weaknesses
8. Suggestions for Reform

Chapter VII
Formulating Future DSMs in FTAs of East Asia
1. A Need for a Creative Approach
1) Reflecting Unique Aspects of East Asian Culture and Situations
2) Reflecting Economic Vibrance of the Region in Global Trade
3) Resolving Disputes Effectively
4) Overcoming Structural Problems of the Present DSMs
2. Traits of New DSMs
1) Activation and Diversification of Non-binding DSMs
2) Shortening the Timeframe
3) Standing Roster of Panel
4) Assurance of Effective Remedy
5) Identification and Resolution of NTB Disputes
6) Establishment of an Appellate Mechanism
7) Cautious Approach to Expanded Transparency
8) Accommodating New Development in Other FTAs

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

References
Additional References
Appendix
I. Provisions Governing Dispute Settlement Mechanisms
II. List of Investment Disputes Involving East Asian Countries
III. List of Trade Disputes Involving East Asian Countries
Index