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Challenges and opportunities for the national constitutional system in dealing with the global investment regime : A case study of the indirect expropriation doctrine and investor-state arbitration under the free trade agreement between the Republic of Korea and the United States of America

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  • Challenges and opportunities for the national constitutional system in dealing with the global investment regime
  • Kim, Younsik
  • University of Edinburgh


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Title Challenges and opportunities for the national constitutional system in dealing with the global investment regime
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Sub Title

A case study of the indirect expropriation doctrine and investor-state arbitration under the free trade agreement between the Republic of Korea and the United States of America

Material Type Thesis
Author(English)

Kim, Younsik

Publisher

[Edinburgh, Scotland] : University of Edinburgh

Date 2012-11
Subject Country South Korea(Asia and Pacific)
Language English
File Type Link
Subject Economy < Trade
Economy < Economic Administration
Holding University of Edinburgh
License

Abstract

In 2011, Korea ratified the Korea-US Free Trade Agreement (KORUS-FTA). This treaty remains controversial in Korean society, particularly because many Koreans claim that the indirect expropriation doctrine under investor-state arbitration in the investment chapter will allow global investors to challenge governmental regulation justified by the Korean constitution. Despite such criticism, the KORUS-FTA indirect expropriation doctrine and the Korean constitutional property doctrine share more than might be expected in practice. However, this substantive doctrinal convergence between national and global legal systems does not eliminate all risks of conflict between the nation-state and global investors; conflicts can occur whenever two actors interpret the same text differently. Once an investment dispute happens, independent investor-state arbitration reviews governmental action according to independent interpretative rules. Systems theory suggests that nation-states can turn such global challenges into opportunities by taking contextual control over global investment in relying on the global investment legal system of the global investment regime. (The rest omitted)