EXPROPRIATION OF FOREIGN INVESTMENT FROM THE PERSPECTIVE OF THE STABILIZATION CLAUSE AND THE ADMISSIBILITY OF ARBITRATION OF INVESTMENT DISPUTES IN SOUTH KOREA AND JAPAN: SOME ASPECTS
The article touches upon approaches provided by 1947 Constitutions of South Korea and Japan and 1998 Korean Foreign Investment Promotion Act No. 5559 (as amended 2010), Japanese 1949 Foreign Exchange and Foreign Trade Act No. 228 with regard to legal guarantees and protection of foreign investors` rights against expropriation (requisition) of their investments and standards of intergovernmental agreements the Republic of Korea and Japan (including 2001 Korean Model Bilateral Investment Treaty) on this matter. At the same time, the author traces the evolution of approaches to the provision of guarantees against expropriation in Korea, depending on the increase in its investment abroad. The guarantee against expropriation is linked by the author to the consolidation of the stabilization clause and the right of arbitral protection of investors violated rights (by way of ICSID and national arbitration institutions of Korea and Japan - Korean Commercial Arbitration Board (KCAB) and Japan Commercial Arbitration Association (JCAA). The attitude towards arbitration in these countries is assessed, taking into account a number of arbitration cases in which the Republic of Korea participated and the desire to develop national arbitration of both countries under study. The study is based on such methods of scientific knowledge as: general scientific dialectical, historical and of a comparative legal analysis. The author proceeds from the subjective-objective predetermination of processes and phenomena of the surrounding world. The novelty of the study consists in the complex consideration of three mentioned guarantees of investors' rights protection through the prism of national and international law. As a result of the study, the author came to the conclusion, in particular, that confidence to the international institutional structures for the protection of investors' rights (e.g., ICSID) formed initially in Korea, converted by now into a more balanced approach, seeking to develop national arbitration. In turn, Japan, where traditionally, judicial settlement, including with regard to investment disputed, prevails over the arbitration, and which did not face such a situations in ICSID that Korea faced, is also seeking to develop its national arbitration, in order to be competitive in this field.