북한핵문제와 러시아의 역할 : 한반도 정책기조와 6자 회담에의 적용 Russia's Policy Trends toward the Korean Peninsula and Its Application to the Six Party Talks

우평균 북한연구학회 2003 北韓硏究學會報 Vol.7 No.2

The second North Korean nuclear crisis which has been enlarging in international society since October 2002, and current situation is different from that of the 1993-1994 nuclear crisis, when Russia played a secondary role, and in which nobody wanted to take responsibility for the formulation and implementation of a coherent independent policy. As a outstanding example, multilateral frame for discussion as a subject in the conference including China, South Korea, and Russia and Japan, besides on existing member, U.S.A and North Korea is agreed among the members, finally the outcome appeared as the 'Six-party talks', August 27-29, 2003. In this paper, witnessing this point, main purpose is to analyse behavior of new participant, especially, the Russia's perception on North Korea nuclear issues and her role in the Six-party talks. Russia has suggested that the showed the congruent tendencies with the traditional policy goals toward Northeast Asia and Korean peninsula in the process of the conference, 'Six-party talks', and it is well expressed on the fields include; the multilateral approach to the problems on the Korean peninsula, checks to enlargement of the American influence, prevention to rival activity for hegemony State between China and Japan in the region, Russia's playing a role in the process of settling peace procedure on Korean peninsula, development of Russian Far East and Siberia with the economic cooperation with the adjacent states and Russian economies joint to the Asia-Pacific economic zone. Although Russia had foreign policy trend toward Northeast Asia and Korean peninsula, Russia has experienced the very exclusion, that is 'exclusion to participation' in 1993. In contrasts to the first crisis, Russia called herself "honest arbitrator' from the early times of the second crisis, trying to participate most actively among the six countries except U.S.A and North Korea, furthermore Russia suggested the prototype, with identifying to the 'active involvement' beyond simple participation. Russia and North Korea have common usages like the suggestion, the package resolutions on North Korea nuclear issues and security guarantees for North Korea, albeit to the grand principle, 'non-proliferation of nuclear on Korean peninsula', and we can predict Russia's space for activity will be enlarged widely on the problems of Korean peninsula if this Russia's will be settled down in the critical points on the second North Korea nuclear crisis. However there are lots of weak aspects in many sides of Russia's active role, especially in the effectiveness of Russia's arbitrator role for success of the six-party talks. To overcome this critics is Russia's load as a participant's, which has a evident role in the process of solving problems, with the effective influence on the problems of Korean peninsula.

러일 비밀협약과 러시아의 몽골 정책

석화정(Seok, Hua-jeong) 국방부 군사편찬연구소 2014 군사 Vol.- No.92

The third secret treaty which Russia and Japan signed on July 8, 1912 maximized their imperial interests in East Asia. and precisely defined their boundaries in Mongolia compared to the previous Treaty of 1907. After the secret agreement with Japan, Russian government readily made Mongolia as a buffer area against China through Russo-Mongolian Treaty in 1912 and the Declaration and Exchange of Notes by Russia and China in 1913. ‘Autonomous Mongolia’ under the suzerainty of China was ratified in 1915 at the Tripartite Treaty of Kiakhta by Mongolia, Russia, and China. In reality, Russia had assumed that China would played a role in acting as the guarantor of Outer Mongolian autonomy. Inner Mongolia, however, lost its local autonomy forever. Mongolia might think that it cleverly was making use of China and Russia to advance its own interests, but it was evident that these two big powers in the early twentieth century had their own agendas for holding their private negotiations on Mongolia’s sovereignty. In short, the Russo-Japanese Secret Treaty and the Russo-Chinese cooperation as their outcome, served to deny Mongolian independence and sovereignty. As the pawn of imperialistic geopolitics, Mongolia had to bear the result of the Russian-Japanese-Chinese conspiracy and cooperation over its independence and sovereignty and try to barely survived on the edge of the balance of power.

INVESTOR-STATE ARBITRATION UNDER ENERGY CHARTER TREATY

DAE JUNG KIM(김대중) 동아대학교 법학연구소 2016 國際去來와 法 Vol.- No.15

The Energy Charter Treaty (ECT) was initiated by European countries including Russia, the EU and it was opened for signature in Lisbon on December 17, 1995. The ECT is by far the most widely ratified investment protection agreement as to an important economic sector, energy. The ECT differs from other multilateral investment treaties, which are regional in nature, in that the Treaty has a potentially global reach. The ECT provides substantive protections to foreign investors when they invest in the ECT, thereby stimulating foreign investment by protecting investors from abroad. Article 26 of the ECT provides the procedures for an investor of a investor-state arbitration and it states host state’s unique unconditional consent to an arbitration with only a few exceptions. Investors choose to submit the dispute for resolution among ICSID, UNCITRAL Arbitration Rules and the Arbitration Institute of the Stockholm Chamber of Commerce. A landmark ECT arbitration Yukos Universal Ltd. v. Russian Federation was ruled in November 2009 pursuant to the Energy Charter Treaty on the allegations including expropriation, and decision to reject Russias objections to the arbitral Tribunals jurisdiction and the admissibility of the claims. Nykombs claim was based on a disagreement as to the appropriate tariff applicable under a contract for the production of energy. Nykomb asserted that non-payment of the double tariff amounts constituted indirect or creeping expropriation under the ECT Article 13(1). Petrobart claimed that the Kyrgyz government intervened in the judicial proceedings and executive decrees that ordered KGMs reorganization failed to provide a Fair and Equitable Treatment(FET) under Article 10(1) of the ECT. Although the ECT may be considered to be one of the most successful international investment treaties, many of the prominent energy consuming and exporting states such as the US and Canada are still not parties to it. Unconditional consent to an arbitratiotn under Article 26 should be more closely analyzed for the benefit of both investor and host state. In this perspective, NAFTA jurisprudence will serve best given the aggregate number of arbitral decisions. The ECT is sill in its initial phase to progress, and the number of investor-state arbitration is still growing. Our concern now could be as to when and how Korea will join the ECT and how Korea will use the dispute settlement mechanism wisely. This could further help Korea initiate a Northeast Asian energy cooperation regime in the near future.

INVESTOR - STATE ARBITRATION UNDER ENERGY CHARTER TREATY

김대중 동아대학교 법학연구소 2016 國際去來와 法 Vol.- No.15

The Energy Charter Treaty (ECT) was initiated by European countries including Russia, the EU and it was opened for signature in Lisbon on December 17, 1995. The ECT is by far the most widely ratified investment protection agreement as to an important economic sector, energy. The ECT differs from other multilateral investment treaties, which are regional in nature, in that the Treaty has a potentially global reach. The ECT provides substantive protections to foreign investors when they invest in the ECT, thereby stimulating foreign investment by protecting investors from abroad. Article 26 of the ECT provides the procedures for an investor of a investor-state arbitration and it states host state’s unique unconditional consent to an arbitration with only a few exceptions. Investors choose to submit the dispute for resolution among ICSID, UNCITRAL Arbitration Rules and the Arbitration Institute of the Stockholm Chamber of Commerce. A landmark ECT arbitration Yukos Universal Ltd. v. Russian Federation was ruled in November 2009 pursuant to the Energy Charter Treaty on the allegations including expropriation, and decision to reject Russia's objections to the arbitral Tribunal's jurisdiction and the admissibility of the claims. Nykomb's claim was based on a disagreement as to the appropriate tariff applicable under a contract for the production of energy. Nykomb asserted that non-payment of the double tariff amounts constituted indirect or creeping expropriation under the ECT Article 13(1). Petrobart claimed that the Kyrgyz government intervened in the judicial proceedings and executive decrees that ordered KGM's reorganization failed to provide a Fair and Equitable Treatment(FET) under Article 10(1) of the ECT. Although the ECT may be considered to be one of the most successful international investment treaties, many of the prominent energy consuming and exporting states such as the US and Canada are still not parties to it. Unconditional consent to an arbitratiotn under Article 26 should be more closely analyzed for the benefit of both investor and host state. In this perspective, NAFTA jurisprudence will serve best given the aggregate number of arbitral decisions. The ECT is sill in its initial phase to progress, and the number of investor-state arbitration is still growing. Our concern now could be as to when and how Korea will join the ECT and how Korea will use the dispute settlement mechanism wisely. This could further help Korea initiate a Northeast Asian energy cooperation regime in the near future.

Public Policy Exception under Russian Law as a Ground for Refusing Recognition and Enforcement of Foreign Arbitral Awards

Andreevskikh, Liliia,Park, Eun-ok The Korean Association of Arbitration Studies 2022 중재연구 Vol.32 No.3

This paper studies legal regulation of the public policy exception in the Russian Federation and domestic judicial practice on the issue. It reviews current legislation and analyzes a number of recent court cases where an arbitral award rendered by a foreign arbitration body was refused recognition and enforcement based on public policy violation. By doing so, it contributes to the knowledge on the concept of public policy in the Russian legal system and how public policy can affect the process of recognition and enforcement of foreign arbitral awards on its territory. The review of court cases demonstrates different aspects of how the public policy exception can be applied by Russian arbitrazh courts. Such decisions can provide a clearer picture of the kinds of situation that can lead to invoking the public policy clause by the court. Also, it is of practical value as persons preparing to file a claim or to be a defendant in a Russian court can be required to present existing court decisions in support of their claim or defence.

Principle of Proportionality of Contractual Penalty in Arbitral Awards in Russia

박은옥,Liliia Andreevskikh 한국무역학회 2023 Journal of Korea trade Vol.27 No.1

Purpose – When recovered through arbitration a contractual penalty that is disproportionately high can become grounds for challenging an arbitral award or an obstacle to its enforcement within Russian jurisdiction. This article investigates how violation of the principle of proportionality can affect the enforcement and challenging of arbitral awards in Russia. Based on the examination of the current legislation, along with the analysis of recent court cases on the subject, the ultimate object of this article is to discern practical recommendations for Korean practitioners who are looking to challenge and/or enforce arbitral awards in Russian courts. Design/methodology – The research process included the reviewing of current Russian legislation conducted in concurrence with academic literature review, searching and analyzing recent court cases where the relevant legal provisions and concepts were applied, and formulating practical implications of the research at its final stage. Findings – Through its relation to the principle of fairness/justice the authors establish the connection between the principle of proportionality and the public policy of Russia. Analysis of recent court cases showed two conflicting trends of whether a disproportionate penalty can be considered a public policy violation. The authors offer practical recommendations on how to substantiate a relevant claim regarding contractual penalty reduction by the court, depending on the desired outcome. Originality/value – The article contains an up-to-date summary of the legal provisions on the principle of proportionality of civil liability in Russia and identifies the most recent trends in court practice on the issue that is not covered by existing studies.