Fengzhen Min v Republic of Korea - ICSID Case No. ARB/20/26 - Decision on the Respondent's Preliminary Objection Pursuant to Rule 41(5) of the ICSID Arbitration Rules - 18 June 2021
Members of the Tribunal
Mr. Ian Glick QC, President
Mr. Stephen L. Drymer, Arbitrator
Professor Donald M. McRae, Arbitrator
I. INTRODUCTION AND PARTIES
1. This case concerns a dispute submitted to the International Centre for Settlement of Investment Disputes ("ICSID" or the "Centre") on the basis of the Agreement between the Government of the People's Republic of China and the Government of the Republic of Korea on the Promotion and Protection of Investments, which entered into force on 1 December 2007 (the "BIT" or "Treaty") and the Convention on the Settlement of Investment Disputes between States and Nationals of Other States (the "ICSID Convention").
2. The claimant is Mr. Fengzhen Min ("Mr. Min" or the "Claimant"), a national of the People's Republic of China. The respondent is the Republic of Korea ("Korea" or the "Respondent"). The Claimant and the Respondent are collectively referred to as the "Parties." The Parties' representatives and their addresses are listed above on page (i).
3. This dispute relates to Mr. Min's claim that his rights under the Treaty and international law, including his rights under BIT Article 2(2) to fair and equitable treatment, have been violated and that he has been denied justice; and that, contrary to BIT Article 4(1), his investment in Korea, namely his shareholding in a Korean company, has been expropriated.
4. This Decision sets out the Tribunal's reasoned decision on the "Respondent's Preliminary Objection pursuant to Rule 41(5) of the ICSID Arbitration Rules" (the "Rule 41(5) Objection" or "Application").
98. For the reasons set forth above, the Tribunal decides as follows:
(1) Claim B, that the Korean courts failed to accord the Claimant fair and equitable treatment through the Korean courts and other State organs' improper handling of the Korean Criminal Proceedings, is not as a whole manifestly without legal merit;
(2) Claim C, that Korea failed to accord the Claimant fair and equitable treatment through the Korean courts' improper handling of the Korean Civil Proceedings and the Korean courts and other State organs' improper handling of the Korean Criminal Proceedings, taken together as a composite act, is not manifestly without legal merit;
(3) Claim D, that Korea unlawfully expropriated Mr. Min's investment as a result of Woori Bank's wrongful enforcement of the Pi Korea Security and execution of the Manner Transfer, and based exclusively thereon, is manifestly without legal merit;
(4) Claim F, that Korea unlawfully expropriated the Claimant's investment as a result of Woori Bank's wrongful enforcement of the Pi Korea Security and execution of the Manner Transfer and the Korean courts' unlawful handling of the Korean Civil Proceedings, taken together as a composite act, is not manifestly without legal merit; and
(5) The costs of and incidental to this Rule 41(5) Objection are reserved.
OCR Errors may be present, footnotes omitted