Dispute Settlement in Cross-Border Public-Private Partnerships with Diplomatic Agendas: Learning from the Kaesong Industrial Complex
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This paper examines the ways in which administrative barriers and uncertainty surrounding the resolution of a dispute have obstructed the Kaesong Industrial Complex (“KIC”) from reaching its potential, not only as a unique form of public-private partnership, but also as a diplomatic gesture of progressive good faith. To help wind back some of these hindrances, this paper suggests that introducing an independent, international forum and standardized rules for dispute settlement is necessary. This mechanism would have to be sensitive to two objectives in relation to the KIC, the first is that of being able to ensure the continued operation of the facility in the instance of a conflict due to the high actual, opportunity, and diplomatic costs of a shutdown. The second objective that this dispute settlement mechanism must fulfill is to resolve disputes with minimized hostility. Given the exogenous nature of disruptions to the KIC’s operations, inciting greater tension via this mechanism would be self-defeating. This paper proposes the use of the Energy Charter Treaty and its Secretariat for the resolution of disputes in responding to these two objectives.
Abstract
This paper examines the ways in which administrative barriers and uncertainty surrounding the resolution of a dispute have obstructed the Kaesong Industrial Complex (“KIC”) from reaching its potential, not only as a unique form of public-private partnership, but also as a diplomatic gesture of progressive good faith. To help wind back some of these hindrances, this paper suggests that introducing an independent, international forum and standardized rules for dispute settlement is necessary. This mechanism would have to be sensitive to two objectives in relation to the KIC, the first is that of being able to ensure the continued operation of the facility in the instance of a conflict due to the high actual, opportunity, and diplomatic costs of a shutdown. The second objective that this dispute settlement mechanism must fulfill is to resolve disputes with minimized hostility. Given the exogenous nature of disruptions to the KIC’s operations, inciting greater tension via this mechanism would be self-defeating. This paper proposes the use of the Energy Charter Treaty and its Secretariat for the resolution of disputes in responding to these two objectives.
참고문헌 (19)
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