The Doctrine Of “Kompetenz-Kompetenz” In International Commercial Arbitration University Essay Example

 Kompetenz-Kompetenz 1The Doctrine of Kompetenz-KompetenzIn International Commercial Arbitration IntroductionInternational arbitration has been used to resolve disputes for a long time. As noted by one commentator: “Commercial arbitration must have existed since the dawn of commerce.” (Musthill, 2006) Unfortunately, another side of business transactions, corruption, has been around a long time also.

Inevitably, it has appeared in international commercial arbitration cases. This article reviews some of those cases and analyzes the evolving trends on how international arbitrators have dealt with this difficult issue. (Bribes, 1998, Martin, 1999, Levi & Raphael, 1999)Kompetenz-kompetenz refers to an arbitral tribunal’s power to determine whether it has jurisdiction to decide a controversy.( Wyss, 1997) Although the arbitrator’s power to rule on her own jurisdiction is generally recognized throughout the world, ICC case o.

1110(1963) is one of the first reported international arbitral awards dealing with corruption. The Comment will address the issue of kompetenz-kompetenz and separable doctrines. The ICC Case No. 8891 illustrating the role of the Arbitrator in the international policy issues.

Kompetenz-Kompetenz:The competence or jurisdiction of the arbitral tribunal to decide upon a contract involving corruption has been challenged in a number of arbitral awards. Probably the most well known case is ICC Case No. 1110 (Arb’n XXI (1996) 47) where the sole arbitrator, Judge Lagergren, disqualified himself as not having jurisdiction. That case has been subsequently distinguished (Wetter, 1963) on the grounds that the arbitration agreement was entirely separate and distinct from the contractual relationships of the parties.

Kompetenz-Kompetenz 2The doctrine of supremacy can be described as a principle that gives precedence to Community law over the law of the Member States within its proper sphere of competence. Thus, supremacy is not absolute per se. Hence, supremacy does not imply a universal subordination of Member State law to Community law. (MacCormick, 1995)  The justification for supremacy given by the ECJ relates to the rule of law and the necessity of a coherent Community legal order.

This principle is supported by Article 16.1 of the UNCITRAL Model Law (UNCITRAL, 1985) and Article 21.2 of the UNCITRAL Arbitration Rules (UNCITRAL, 1976) which essentially say: “The arbitral tribunal may rule on its own jurisdiction, including any objections with respect to the existence or validity of the arbitration agreement. For that purpose, an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract.

A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.” As referred to in the Westinghouse case, Article 6(2) of the 1998 ICC Rules of Arbitration states: “the Court may decide, without prejudice to the admissibility or merits of the plea or pleas, that the arbitration shall proceed if it is prima facie satisfied that an arbitration agreement under the Rules may exist.”Doctrine of AutonomyThe issue of the separable or autonomy of the arbitration agreement (or clause) has been challenged in many corruption arbitral awards. Under this doctrine, the arbitration clause is separate and independent from the contract in which it is contained.

The effect of this doctrine is that the arbitration clause will survive and continue to be valid, even if the arbitral tribunal decides that the main contract is null and void because it involves bribery.Kompetenz-Kompetenz 3To illustrate the doctrine of autonomy the ICC Case no. 1110(1963), this ICC case is one of the first reported international arbitral awards dealing with corruption. It has been cited and criticized frequently for how it dealt with the Kompetenz-Kompetenz and autonomy doctrines.

This view of the case has been recently revised with a more complete understanding of what happened. (Yearbook Comm. Arb’n XXI 1996)Facts:The claimant was an Argentinean engineer who had acted as an agent for the respondent, a British company, in Argentina during the Peron era. The British firm wanted to sell electrical equipment to the Argentinean government for power plants in Buenos Aires.

Both parties agreed in 1950 to enter into an arrangement whereby the claimant would act as the agent for the respondent in Argentina. This was reduced to a series of very brief letters in which the respondent agreed to pay a total commission of 10% on the value of the order (split 5%, 2.5% and 2.5% and transferable to unnamed third parties).

This was allegedly reconfirmed in 1953 on a verbal basis.The claimant acted in such capacity until June 1955 when he was forced to go to Germany for medical reasons. Up to that point of time, the respondent had not made any sales to the Argentinean government. Then in 1958, the respondent, through a partnership, sold nearly £28 million of electrical equipment to the Argentinean government.

The partnership had retained another agent to assist in that transaction. He was paid nearly £1 million for his efforts. The claimant subsequently demanded 10% of the total sale under the 1958 sales contracts or £2.8 million based upon the commission set in the 1950 arrangements.

Kompetenz-Kompetenz 4Given the paucity of their contractual arrangements, the parties entered into a wholly separate and independent arbitration agreement prior to commencing the arbitration process.In the testimony provided at the arbitration, the respondent stated that the sole reason why the claimant was retained was “the quite remarkable degree of influence which he had with the political appointees of the Peronista Government.” Several other witnesses stated that the claimant had said that he would only retain about 2% of the commission with the remainder going to his collaborators.Neither of the parties argued that the 1950 agent contract was illicit nor necessarily invalid.

Rather, the respondent simply argued that the 1958 sale contracts awarded to the partnership and the respondent by the Argentinean Government were totally different from what was agreed upon in 1950 and allegedly reconfirmed in 1953. The claimant was not even present in Argentina when the new project was announced in 1956 and the awarding of the contracts to the respondent and its partnership could “in no way be attributed to any efforts or activities carried on by the claimant.”Opinion:The sole arbitrator, Judge G. Lagergnen, determined that the evidence “plainly established that the agreement between the parties contemplated the bribing of Argentine officials for the purpose of obtaining the hoped-for business” and that the amounts involved were huge.

Kompetenz-Kompetenz 5Judge Lagergnen examined, on his own motion, the question of his jurisdiction to decide upon a contract “condemned by public decency and morality.” He referred to the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards which provided that the competent authority may refuse ex officio the recognition or enforcement of an award that would be contrary to the public policy of that country.He referred to the law of France, the seat of the arbitration or lex fori, and to Argentine law, the law of the place where the contract(s) were to be performed, lex locus solutiones. He concluded that both French and Argentine law would not allow this case to be arbitrated.

Judge Lagergnen then stated that “there exists a general principle of law recognized by civilized nations that contracts which seriously violate bonos mores or international public policy are invalid or at least unenforceable and that they cannot be sanctioned by courts or arbitrators.” He did not refer to any particular law, treaty or convention to substantiate this opinion but rather to “general principles denying arbitrators to entertain disputes of this nature.”Before providing his decision, Judge Lagergnen did note that “care must be taken to see that one party is not thereby enabled to reap the fruits of his own dishonest conduct by enriching himself at the expense of the other.” He recognized the dilemma of dealing with two parties with “unclean hands.

” He addressed this dilemma while setting the costs.He concluded that “a case such as this, involving such gross violations of good morals and international public policy, can have no countenance in any court either in the Argentine or in France, or, for that matter, in any other civilized country, nor in any arbitral tribunal. Thus, jurisdiction must be declined in this case.”Kompetenz-Kompetenz 6Judge Lagergnen decided that each party should pay its own costs and the arbitrator’s fees were to be divided equally.

Commentary:This case set the stage for dealing with corruption in international arbitral awards. Whether one agrees with the arbitrator’s disqualification of himself, the result if he declared himself competent to hear the case would likely have been the same. He found bribery and would likely have declared the contract invalid. Thus, the claimant would not have gotten his commission.

Does one therefore conclude that if the tribunal had found evidence of bribery that it would have invalidated the contract, the arbitration clause and the entire arbitration? Logic supports the application of the doctrine of separability in all instances. The parties have chosen international arbitration as their forum of dispute resolution. International treaties and national courts recognize and enforce arbitral awards. Therefore, one can only conclude that it is the arbitral tribunal’s responsibility to recognize the validity of the arbitral clause in these cases.

International Public OrderThe Community shall act within the limits of the powers conferred upon it by the Member States according to Article 5 EC. The Article is an expression of the principle of subsidiary. However, Article 5 seemingly limits the scope of power of the Community but does not give any guidance of what body should have the final say to determine whether or not theCommunity has acted within the limits of its attributed authority. The ECJ shall, according to Article 220 EC ensure that Community law is observed when interpreting and applying the Treaty.

However, as we have seen in previous chapters, the Treaty is silent on many issues such as the question of supremacy. The ECJ is therefore said to have a “gap-filling role”, in orderKompetenz-Kompetenz 7To fill the gaps where the Treaty itself gives no explicit guidance.115 through the case law of the Court it has established a constitutional structure for the European Community. (Craig and De Búrca, p.

97)The external Community competences concern the relationship between the Communities and the Member States and essentially relates to the question of Kompetenz- Kompetenz. The ECJ can declare a Community act invalid according to Article 230 EC on the grounds that a Community institution had exceeded its authority, and thereby exceeding its internal competence. Therefore, the ECJ has internal competence to declare invalid measures adopted by Community institutions. Furthermore, the ECJ has the right, according to Article 230 EC, to invalidate measures adopted by a Community institution in areas where the Community as a whole lacks competence.

To illustrate this doctrine let cite the case of Tobacco advertising (Case C-376/98)The facts of the case are the following. Germany wanted the ECJ to annul a directive on tobacco advertising. The objective of the directive was to harmonies the law relating to advertising and sponsoring of tobacco. The ECJ agreed with Germany and declared the directive invalid on the grounds of Article 5 EC that states that Community powers are limited to those specifically conferred on it.

The Court clearly held that aim of the directive was not to regulate the internal market, which was mentioned as the purpose of the directive, but designed to protect and improve public health. Public health is an area where the Community lacks authority to harmonies measures. Thus, the institutions had acted beyond their competence and thusKompetenz-Kompetenz 8The measure was consequently annulled by the ECJ according to Article 230 EC. The Tobacco Advertising case illustrated the wish of the ECJ to work against “creeping competences” of the Community.

122 It held clear that the Community cannot adopt measures that are based on legal norms other than those expressly conferred to the Community through the Treaty. Otherwise, the rule of law may well be under threat if Community measures are founded on false pretences such as in the Tobacco Advertising case where the Court regarded the real objective to be public health and not to purposely improve conditions for the internal market.Moreover, Article 308 states that the Council can take appropriate measures, acting unanimously, if an action of the Community is necessary to obtain for the course of the operation of the common market and neither the objectives of the Community nor the Treaty provide powers to take such an action. Not all articles in the Treaty provide the Community with specific legislative powers in certain fields.

An example of this is consumer protection. InitiallyConsumer protection was not enshrined in the EC Treaty.However, long before Article 153 EC (consumer protection) was adopted, the Community took actions in the field of consumer protection such as food labeling. Hence, Article 308 EC was used to give legislative power in fields before they were regulated through Treaty amendments.

The legal basis for this was of Article 308 EC. Craig and De Búrca believe Article 308 EC to provide the Community with valuable legal authority in a field where it lacks specific legislative powers. (Craig and De Búrca, p. 125.

)  However, the use of Article 308 EC of the Community has been criticized by Weiler (1991)   He argues that the Article has been too widely interpreted by the Community. The measure taken by the Council must be founded on an objective not expressly stated in the Treaty. The Community cannot adopt measures in conflict with the subsidiary principle.Kompetenz-Kompetenz 9Furthermore, this authority does not give a general power to the Community to act in areas that lay outside the objectives of the Treaty.

Craig and De Búrca argue that the wide interpretation used by the ECJ has not given enough limitation on the Council. (Craig and De Búrca, p. 125.)There is of course a threat of “creeping competences” if the Article is used too broadly.

Furthermore, the Community can be said to have implied powers in certain areas. These powers have already been expressly conferred to the institutions of the Community. The Community may take actions on the grounds that a certain Treaty article contains an implied power for the Community to adopt measures. Thus, the implied power signifies that there must be an underlying power on which the implied power is based.

These powers are mostly used in the field of external relations. (Craig and De Búrca, p. 125.)The paragraph will examine the standpoint of the ECJ and the dichotomized position held by the German Constitutional Court as well as highlighting the intense legal debate on Kompetenz-Kompetenz.

 Role of Arbitrator The previous chapter has looked at the internal and external competences of the Community. According to Article 5 EC, the Community must act within the competences the Treaty has attributed to it. Moreover, a measure adopted by the Community can be annulled if Community institutions have exceeded their competences. However, it is far from clear where the extent of the boundaries of Community competences lay and this is often open to different interpretations.

Craig believes the crucial question to be who should have the final authority to decide whether a Community measure is intra or ultra vires. (Craig, supra note no. 2, p. 2.

)Kompetenz-Kompetenz 10The issue relates to the right of final power to decide the constitutionality of Community law. Ultimately, who holds the authority to define the legal limits of the Community? Essentially, who is the final arbiter to determine the constitutionality of Community law, the Member States or the ECJ?An arbitrator, unlike a judge in a national court, is appointed at the request of the parties having the contractual dispute. His role can therefore be viewed quite differently than a judge. Put another way: “Is the arbitrator the servant of the parties, or of the truth?”(Sighart, 1982).

The arbitrator may assume that he only needs to address the particular interests of the parties in the arbitration and need not be concerned with international policy issues.That may no longer be the case in the area of corruption. The international rule of law that bribing government officials is illegal and those charged with the administration of justice, including international arbitrators, have the responsibility to ensure that such laws are applied properly.ICC Case No.

8891(1998) (Journal du Droit International 4) illustrates this proactive approach where the tribunal considered the issue of burden of proof. According to the rules on burden of proof, it is incumbent upon the party claiming illegality to prove this fact. This classic case replays the scenario of an agent seeking payment of its commission under a consulting agreement with a company wishing to win new business in a foreign country. In looking at the contract, the arbitral tribunal took a proactive approach in establishing the evidence on whether bribery existed (Journal du Droit International 4 (2000) 1076).

Facts:Kompetenz-Kompetenz 11The reported case is short on the background of the dispute. However, one can deduce that the plaintiff was a Swiss company whose principal was a French national and that the defendant was affiliated to France. The plaintiff acted as an agent of the defendant under an agreement in which the plaintiff had the responsibility of increasing the price obtained by the defendant under two government contracts. There is no indication in the case of the particular government involved.

The defendant failed to pay the agreed upon commission of 18.5% to the plaintiff and the result was that the plaintiff initiated legal action to claim his fee. The defendant first claimed that the consulting agreement had reached the end of its term and then argued that the purpose of the agreement was corrupt thus making it void. The arbitration clause gave the arbitrators the powers of an amiable compositeur but did not specify the applicable law.

The parties agreed upon ICC arbitration.Opinion:The arbitral tribunal noted that both French law, which was closely linked to the contract between the parties because of its affiliation to the defendant and the nationality and domicile of the principal actor of the plaintiff, as well as Swiss law, the country of incorporation of the plaintiff, consider corruption as contrary to both internal public order and to international public order. If the contract was found to be illegal, the consequence would be the voiding of the contract. In analyzing the case, the arbitral tribunal confirmed that based upon the doctrine of separability, an arbitration clause in a voided contract was not affected by the nullification of the main contract itself.

The tribunal considered the issue of burden of proof. According to the rules on burden of proof, it is incumbent upon the party claiming illegality to prove this fact. The tribunal noted that in alleging corruption, this is usually a very difficult task. In fact, the illicit object of the contract is generally hidden behind apparently insignificant contractual clauses.

That is why arbitrators are left with no other choice than to analyze the clues. To review the evidence and to address the burden of proof, the arbitral tribunal, based on arbitral doctrine and jurisprudence, identified the following criteria or signs:Kompetenz-Kompetenz 12The agent inability was to submit proof activity. The refusal by the agent to provide explanations regarding his activity constituted a fortiori sign.  The duration of the agent’s with the involvement in contract.

A very short duration indicates signs of corruption. The remuneration under the contract is in the form of a commission based on the amount or value of the contract signed by the business client.  A particularly high rate of commission raises a flag and leads to the presumption that the intermediary is disbursing money to government officials. The tribunal noted that it is rare for a simple agent to receive commissions greater than 1% or 2%.

One needs to establish both the accepted practice regarding commissions, and compare the amounts provided to the agent with the efforts expended by him. The tribunal then analyzed the evidence based upon the above criteria. It found the following: Duration of Plaintiff’s Involvement.The duration of this particular plaintiff’s involvement in the government contracts was approximately 2 ½ months.

The arbitral tribunal found this period to be extremely short given the task assigned and felt that it was a sign of corruption.  Method of Remuneration the plaintiff’s remuneration was a percentage of the increase in the contract price obtained from the government ministry. The tribunal held that this was not a determining factor and, in fact, several witnesses explained that this “success fee” method of calculation was common practice in the country rate of Commission. The commission of 18.

5% was deemed particularly high and the arbitral tribunal found that this indicated that the plaintiff was disbursing significant sums of money to third parties.Kompetenz-Kompetenz 13Agent’s Activities the activity of the agent was barely documented in the proceedings. Indeed it was hard to define exactly what the plaintiff accomplished. Given the statements of some of the witnesses, the tribunal concluded that the plaintiff’s task was to ensure that monies were paid to third parties.

The tribunal thus concluded that this was a particularly strong indication that the purpose of the consulting contract was illicit.The tribunal noted that the testimony from several witnesses provided very explicit confirmation that influential people had to be guaranteed payment if one was to win deals. The tribunal also noted the absence of the President and General Manager of the plaintiff, even though he was requested to appear in front of the tribunal. This led the tribunal to determine that he was deliberately avoiding having to testify in the matter.

There was also a series of invoices and telexes that alluded to payments to government officials. This provided further corroboration that the object of the contract was to engage in illicit activity.The convergence of all these indicators resulted in the arbitral tribunal concluding that the object of the consulting contract was to obtain from the Ministry an increase in the defendant’s contract price by handing out pots de vin or bribes to government officials. In the opinion of the tribunal, all of these signs in their aggregate left no shadow of a doubt that the intention of the parties, at the time of signing the contract, was to engage in bribery.

Kompetenz-Kompetenz 14The arbitral tribunal declared the consulting contract void and dismissed each of the claims of the plaintiff. In doing so, the tribunal referred to the growing international consensus condemning bribery of government officials. In particular, it referred to the OECD Convention of 1997 dealing with corruption. The arbitral tribunal ordered the plaintiff to pay two-thirds of the arbitration costs while the defendant was to pay one third because of its ambiguous behavior.

Finally, the arbitral tribunal noted that voiding a contract for bribery causes the party who benefited from the services to be relieved from having to pay the price agreed upon to the consultant. This was undoubtedly an unpleasant consequence but it was not sufficient to legitimize a contract whose purpose was illicit.Commentary:ICC Case No. 8891 takes a strong, proactive approach in dealing with the issue of corruption.

As the tribunal clearly stated: “To ask arbitrators who hand out justice, to condone this type of practice is inconceivable to this tribunal.” The award affirms and re-enforces the clear duty of international arbitrators to penalize parties who ignore the principles and rules of the international public order concerning corruption. The approach of this award contrasts with the more passive position taken by arbitral panels in other cases.ConclusionInternational arbitral tribunals and their administering institutes are faced with difficult and complex challenges when allegations or suspicions of corruption arise in an international arbitration.

Arbitrators must be cognizant of their obligations and properly apply them to their decisions. As shown in the reviewed arbitral decisions, the approach of the arbitrators is very decisive to the conclusions reached.Kompetenz-Kompetenz 15On the other hand, this paper also attempted to address the questions of supremacy ofCommunity law will be intertwining issue of the legal boundaries of the community. As stated by MacCormick, supremacy does not entail an all out subordination of Community law over national law nor does it imply that the national constitutions as a whole shall yield to Community law.

213 It is clear that Community law cannot take precedence over national law in a field where the Community lacks competence.The debate on competences, stemming from that of supremacy, has been a lively one, with dichotomized views expressed both by the ECJ and national courts, and amongst legal scholars. The German Constitutional Court defied the ECJ be stating that it had certainly not relinquished the authority to declare the unconstitutionality of Community acts and thereby rejected the ECJ’s claim to judicial Kompetenz-Kompetenz.            Kompetenz-Kompetenz 16References A.

Timothy Martin, The Development of International Bribery Law (Fall 1999) Vol. 14, Issue 2 Natural Resources & Environment, ABA.Award in Case No. 1110 of 1963, Yearbook Comm.

Arb’n XXI (1996) 47. November 28, 2006Case C-376/98, Germany v European Parliament and Council(Tobacco Advertising Craig, Paul EU Law: Text, Cases and Materials, 3rd rev. ed. November 28, 2006.

 Craig, Paul Report on the United Kingdom, in Slaughter, Anne-Marie Stone Sweet, Alex, Weiler, Joseph H. H. (eds.), The European Courts & National Court: Doctrine and Jurisprudence, Oxford, Hart Publishing UK, 1997.

 De Búrca, Grainne (2003)Oxford, Oxford University Press. November 28, 2006Directive) [2000] ECR I-8419J. Gillis Wetter. (1994).

  Issues of Corruption before International Arbitral Tribunals; The Authentic Text and True Meaning of Judge Gunnar Lagergren’s 1963 Award in ICC Case No. 1110” Vol. 10, No. 4 Arbitration International 227.

J. Noonan, Jr., Bribes (New York: Macmillan, 1984). A.

Timothy Martin, Corruption and Improper Payments: Global Trends and Applicable Laws (April 1998) Volume 36, No. 2 Alberta Law Review 416. Journal du Droit International 4 (2000) 1076. November 28, 2006 Journal du Droit International 4 (2000) 1076.

November 28, 2006 Lord Musthill, “Arbitration: History and Background” (1989) 6 Journal of International Arbitration, p.43.November 28,2006. MacCormick, Neil.

(1995).  The Maastricht-Urteil: Sovereignty Now, European Law Journal, Vol. 1, No. 3, November 1995, Blackwell Publishers Michael Levi & Monty Raphael, (1999).

Anti-Corruption – a signpost for transactional lawyers Issue 1 Business Law International, IBA. Model Law on International Commercial Arbitration, adopted by UNCITRAL on June 21, 1985.P. Sieghart, “Viewpoint” (1982) 48 Arbitration 133 at p.

135. November 28, 2006UNCITRAL Arbitration Rules, adopted by UNCITRAL on December 5, 1976.Kompetenz-Kompetenz 17Wyss, Natasha . (1997).

Kompetenz-Kompetenz Vol. 72, 72  Tul. L. Rev.

351 (1997) . November 28, 2006, from http://www.law.tulane.

edu/lawreview/issues/72/1/72n1wyss.htm Yearbook Comm. Arb’n XXI (1996) 47. J.

Gillis Wetter, Issues of Corruption before International Arbitral Tribunals & The Authentic Text and True Meaning of Judge Gunnar Lagergren’s 1963 Award in ICC Case No. 1110” (1994) Arbitration International, Vol. 10, No. 3, 277.

10 Arb. Int. 282 (1994).   

Cultural Heritage Of Korea And China

Despite the rich cultural heritage of Korea, its long and ancient history has given the world far more than what it has borrowed from its neighbors. Over the process of time, as Korea went through a variety of developments, geographical and cultural changes, the country has still maintained its distinct cultural identity even within its diasporas that have migrated all over the world.

The preservation of Korean uniqueness has been possible despite its geographic proximity to other major civilizations. Korea shares a few similarities with China as well as marked distinctions but it still remains distinctly Korean.GeographyKoreas geographic history reveals that people have been living on the Korean peninsula for about half a million years. This has been established by archaeologists who have found ancient evidence of stone chopping tools, axes and old pottery in digs in Central Korea.

Farming most probably started in the Bronze Age, around 3,500 years ago since carbonized rice grains and farming tools dating from this period of history have been found at many archaeological digs.The Korean Peninsula points southward from the north-eastern corner of the Asian continent and is surrounded on three sides by large expanses of water. Korea’s geography has been a major factor in shaping its history; include in this is the manner in which the inhabitants of the peninsula emerged as a common people wanting to belong to a unified nation called Korea.Aside from history, the Korean people account for their origin in mythology.

Popular folklore traces the origins of Koreans on the peninsula to the founding of the state of Choson, meaning “Land of the Morning Calm.” The founding of Choson dates to 2333 B.C. when according to popular folklore, Tan-gun, a legendary figure born of the son of Heaven and a woman from a bear-totem tribe, established the state.

Historically, ancient Korea was dominated by clan communities which combined to form small town-states. However, by the first century B.C. the 3 kingdoms, Koguryo, Paekche and Shilla had emerged on the Korean Peninsula (today part of Manchuria).

Ever since the Shilla kingdom unified the peninsula in 676 A.D, Korea had been ruled by a single government and has maintained its political independence and cultural and ethnic identity in spite of frequent foreign invasions.In the late 19th century, Korea became the focus of intense competition among imperialist nations, China, Russia and Japan. In 1910, Japan annexed Korea and instituted colonial rule.

National liberation occurred in 1945 but was soon followed by territorial division. In June 1950, North Korea launched an unprovoked full-scale invasion of the South and started a war that lasted three years. The three-year war caused terrible damage before it ended in a cease-fire in 1953. Since then, the Korean peninsula has been governed by the Republic of Korea in the south and the Democratic People’s Republic of Korea in the north (Korea Information Gateway, 2004).

Reunification remains the long-cherished but elusive goal of all Koreans on both sides of the Military Demarcation Line. The fall of Communism in the Soviet Union and Eastern Europe and the unification of Germany raised expectations in Korea that unification could be achieved. Some progress in promoting trust and cooperation between the two halves of the Peninsula was made in recent years (Caraway, 2001).Korea has a long and distinguished cultural history.

Its culture has blossomed during its long history. Japan, because of its geographic proximity to the Korean peninsula, could have had considerable cultural impact on Korea. However, despite their comparative closeness the peninsula has been affected far more by the civilizations on the Asian continent than by those in Japan. On the contrary, owing to its geo-historical dependencies, Japan has adopted many Korean ideas and customs.

Korea has spawned some great inventions: its ancient printing systems, the first ever iron-clad battleship, and the Korean alphabet, devised by a group of 15th century scholars, remains largely unchanged today. Today this innate creativity is still reflected in the Korea people as is evidenced by their rapid economic development.Additionally the ancient religion of Korea, Buddhism, has played and continues to play a powerful role in Korean art. A large number of excellent examples of Korean artwork and architecture can be found in Buddhist temples and paintings.

Tomb murals from the Three Kingdoms Period are the earliest examples of Korean painting. The current trend in Korean art is the harmonious combination of traditional and modern styles (Grayson, 1989).Fantastic paintings of mythological beasts such as dragons and flying horses show an imaginative and creative spirit showing the influence that mythology has played in moulding Korean art form. Moreover throughout the Unified Shilla and Koryo Periods, Buddhism prevailed in every field of life and was thus able to influence the creation of a rich collection of icon paintings that have survived to this day.

In the late Koryo Dynasty, ink and brush paintings of the four “noble plants”, (cherry blossom, orchid, chrysanthemum, and bamboo), symbolizing traditional virtues, became popular revealing natural and societal influences. Artists of the Choson Dynasty produced innovative masterpieces embodying the Korean spirits and perspectives. There are humorous animal pictures, scroll paintings of dreamlike, mist-clad mountains, and insightful sketches of everyday life done in brush and ink. Paintings with folk custom and nature themes flourished in the latter half of the 18th century.

Calligraphy, the art of brush writing, a traditional art form in Korea, has exerted a strong influence on social and cultural life and is still highly respected today.The perfection of celadon, accomplished during the Koryo Dynasty, was one of the most significant achievements in Korean art. Korean artisans developed a superbly controlled glaze that was both beautiful and unique because it fully utilized the properties of Korea’s rich clay (Caraway, 2001).Similarly Korean architecture has been shaped by several influences: religions, the availability of materials, the natural landscape, and an aesthetic preference for simplicity.

Gently sloping rooflines and sturdy, undecorated pillars characterize its simplicity, harmony, and practical utility. Korea today has many original wooden and stone structures, some dating back over a thousand years. There are also many skillful reproductions. Traditional architectural designs are also incorporated in many modern buildings throughout the country (Grayson, 1989).

Koreans have also always had a deep love for music and dance and traditional forms are still practiced today. Some examples of what current visitors to Korea might see are classical court music, narrative folk songs, farmers dance, mask dance, and traditional western style music (Korea Information Gateway, 2004).Furthermore the museums of Korea testify to Koreas historic treasures and cultural legacies. Many national, municipal and university museums, as well as a number of private institutions, preserve Korea’s colorful past.

History shows us that conquering nations such as Japan, for example, have taken much from Korean art, music and religion – this is especially evident in their building style for instance. Nevertheless Koreans tend to be a little closeted and reluctant to spread their cultural influences in places outside the country. When settling in a new country as immigrants, Koreans seem to keep a lookout for their own countrymen and take up residence in closely knit communities. So there is an unmistakable cultural identity, a sense of homecoming for the Korean traveller when they visit families abroad, away from Korea.

China is one of the few remaining countries in the world today that began to flourish economically and culturally during the ancient era of human civilization. Certain parallels can be drawn between the historical development of China and Korea as well as several distinct contrasts.Over the course of China’s 4,000 year history, it has endured barbarian invaders (the Mongols), socio-political turbulence (Communism), and the threat of technological obsolescence (the Game Boy), yet it remains unique for its continuity and perseverance. This continuity despite adversity is also true of the history of the Korean peninsula despite numerous political upheavals and battles for control.

Historians believe that the first true Chinese dynasty was the Xia (c. 2200 BC) The Xia was followed by the Shang, who was the first Chinese people to develop an alphabet. For 700 years the Shang reigned over China, until about 1100 B.C.

when the Zhou came to power. The Zhou were the first of many Chinese dynasties to suffer barbarian invasions, but they also produced some great minds, namely Confucius and Lao-zi, whom you might know better as the author of the ancient world’s best-selling “Tao-te Ching”. The development of the clan communities and later the three kingdoms in Korea are somewhat reflective of the dynasty type rule in China.Within the “Spring and Autumn” and “Warring States” periods in China things got ugly for a few hundred years.

During this period, a brilliant military strategist named Sun-tzu jotted down some notes on tactics and strategy which came to be known as “The Art of War”. About this time, one of the Chinese emperors noticed that there were a series of walls built in different places, and thought it might be a good idea to connect them. Enter the “Great Wall” of China. Started as a series of smaller walls as early as the 7th century BC, the Great Wall is the single largest construction project ever undertaken by man.

The project was more or less “finished” during the Ming dynasty of the 14th century (you know them for their vases), however, much of the foundation for the Great Wall was built during the time of China’s first emperor, Qin (or Ch’in) Shihuangdi.The Great Wall of China is today represented by the economic, social and political divide that now separates the Korean peninsula. Within China the chaos of the “Warring States” period eventually came to an end when Qin reunited China in 221 BC. However the same is as yet true for the Korean peninsula that continues to be divided despite sentiments being expressed to do otherwise.

During Qin’s short but productive reign, the first great palace for the Chinese emperor was built. Qin also developed a rigid, authoritarian bureaucracy to help manage the sprawling Chinese empire, which would be used for nearly 2,000 years. The famous Han dynasty later came to power in 206 BC followed by the famous “Three Kingdoms” period and a few subsequent dynasties. About 618 AD, the T’ang dynasty came to power, extending China’s borders into what are now Siberia, Korea, and Vietnam.

The T’ang were followed by the Sung dynasties (960 – 1279), who are probably best known for losing China to Genghis Khan and his Mongol raiders in the 12th century. The Mongols occupied China for about 100 years, until their militaristic ways caught up with them and they were unseated by Chinese rebels in 1368. The Ming dynasty followed, as did the Qing (Manchu) dynasty in 1644.Political instability seems to have characterized both Korea and China throughout their history.

Constant shifts in political power by means of inheritance, overthrows or invasions represent the features that have been most influential in shaping both cultures. For China stable adjustment usually ensured after major political shifts. To some extent Korea has been able to respond to these changes equally well. However, as the current situation reveals, the divide between North and South Korea is still a sore topic that does not appear as if it will be resolved in the near future.

Overall Korea’s history has experienced several political changes and it has also interacted with other civilizations. Several of its experiences reflect similar incidents undergone by China. Despite these however, Korean culture has remained quite distinct and has been preserved up to modern day where Korea is still distinctly Korean.;;;;;;;;;;;;ReferencesJohn Meskill, J.

Mason Gentzler (1974). An Introduction to Chinese Civilization, The China Quarterly, No. 58 (Apr. – Jun.

, 1974), pp. 392-394.;Associated Press/AP Online, (2006). China Weighing Tough Measures Vs N.

Korea;Norrie mAy-welby via sam, (2007). STOP THE CLASH OF CIVILIZATIONS.

Korean War And Its Aftermath For U.S. Foreign Policy

The end of the World War II was marked with the fundamental change of the world order where the United States began to play the key role on the world scene. No one doubted the amazing extent of U.S.

power. Americans dominated world trade, alone held the secret of the atomic bomb, and controlled the oceans with their fleets, while much of the rest of the world, including the Soviet Union, shoveled away the rubble that had once been towns and cities. However the SU remained in central and Eastern Europe, while, the U.S.

had to establish its military and economic prevalence so that not to allow further spread of Bolshevism in Europe. All seemed well in that summer of 1949. Truman was emerging as the winner in the Cold War. Then, however, North Americans found themselves in new and possibly greater danger than ever before.

Communists had completed their conquest of China; the Soviets exploded their own atomic bomb. An era of the confrontation of two world political systems had begun. The first military confrontation of the capitalist and communist systems occurred during the Korean War[1] (1950-1953), in which the USA took direct participation. This war was in the post-war history a precedent of U.

S. invasion into other country and had considerable implications for US foreign policy. The aim of this work is to find out whether the war in Korea agreed with the mainstream of the US foreign policy and how strong was its influence on further policy of the USA. Truman Doctrine The conflict between the Soviet Union and the USA followed the end of the World War II.

The Soviet Union actively expanded its spheres of influence and the USA could not help but immediately respond to the situation. The result was the so-called Truman Doctrine, based mainly on the views of State Department adviser George F. Kennan, which was enunciated by President Harry S. Truman in a speech to a joint session of the US Congress on 12 March 1947.

 In his speech Truman noticed, that they needed “the policy of the United States to support free peoples who are resisting attempted subjugation by armed minorities or by outside pressures….

we must assist free peoples to work out their own destinies in their own way” (Jones, 272). In his speech Truman denounced the oppressive nature of the communist system of government and warned against the possibility that campaigns of subversion might bring even more countries under that system. He sought, and was given, Congressional authority to provide assistance to threatened regimes — initially those in Greece and Turkey. The “Doctrine” was thus the starting point for the strategy of containment of communism developed by successive US Presidents during the Cold War.

It is obvious that according to Truman’s Doctrine the USA reserved the right to assist other governments in their struggle against the communists even to the extent of military intervention. The containment doctrine was always controversial. Kennan himself soon came to regret the universalist and militaristic twist his formulation received. The influential columnist Walter Lippmann criticized Truman’s excessively open-ended promises to strengthen regimes against communism.

Left-wing politicians, beginning with former vice president Henry A. Wallace, typically saw it as provocative or as a cover for capitalist exploitation, while the right (most memorably in the Republican Party’s 1952 call for the “liberation” of countries behind the Iron Curtain) frequently condemned it as too passive. Receiving an enlarged definition in the National Security Council’s April 1950 document (NSC-68), containment underpinned the globalization of American diplomacy that began with the Korean War in 1950 and continued with bilateral treaties and regional pacts like the Southeast Asia Treaty Organization, established in 1954, and the Central Treaty Organization, established in 1959. The NSC-68 (National Security Council paper 68) is the fundamental paper that governed American policy for several decades.

Many of its ideas became firmly fixed in the American mind. There are reasons to assert that it was aggression of communist North Korea in its attitude against South Korea that weighted the scales on behalf of NSC-68’s advocates. This war played a crucial role in implementation of NSC-68 as everybody understood at that time that the North Korean invasion could not have taken place without some kind of Soviet authorization. This view could be supported by the fact  that President Truman had not formally approved NSC-68 at the time the fighting broke out in Korea, that his advisers had foreseen difficulties in getting Congress to fund it, and that the attack across the 38th parallel greatly simplified that task.

 This happened in large part because of the remarkable manner in which the Korean War appeared to validate several of NSC-68’s most important conclusions. One of these was the argument that all interests had become equally vital; that any further shift in the balance of power, no matter how small, could upset the entire structure of postwar international relations. There was almost immediate agreement in Washington that Korea, hitherto regarded as a peripheral interest, had by the nature of the attack on it become vital if American credibility elsewhere was not to be questioned. “To sit by while Korea is overrun by unprovoked armed attack,” John Foster Dulles warned, “would start [a] disastrous chain of events leading most probably to world war.

” (Gaddis, 109) Almost the same words were told by President Truman to a national radio and television audience: “If aggression were allowed to succeed in Korea, it would be an open invitation to new acts of aggression elsewhere….

We cannot hope to maintain our own freedom if freedom elsewhere is wiped out.” (Lafeber, 514) The North Korean attack also confirmed with a vengeance NSC-68’s assumption that the Soviet Union might well resort to war by proxy, even in the face of American nuclear superiority. Finally, the fighting in Korea reinforced NSC-68’s argument that existing U.S.

forces were inadequate: atomic weapons alone would not deter limited aggression, and Washington lacked the conventional means necessary to cover all contingencies. Legal issues of the American Invasion Thus it is understood that from the foreign policy point of view U.S. intrusion into Korea was firmly grounded.

However, interesting is the question whether all procedures required for legalization of such intrusion were adhered. Truman vastly increased presidential power by sending U.S. troops to fight in Korea without following the Constitution’s requirement that Congress declare war.

The president justified his action by referring to his commander-in-chief powers (that is, his constitutional authority as the commander of U.S. military forces). He also used the United Nations resolutions as justification for sending U.

S. troops. Other presidents had used their commander-in-chief authority to deploy forces without consulting Congress, but none had involved Americans in such a long-term, costly war simply on the basis of this authority[2]. The action raises two principal questions: Did Truman act contrary to constitutional and statutory law? Is his action, supposedly grounded on UN Security Council resolutions, a valid precedent for contemporary presidential decisions? Is UN machinery a legal substitute for congressional action? It is difficult to give an unequivocal answer to any of these questions.

According to Louis Fisher: “If that were possible, the President and the Senate could rely on the treaty process to strip from the House of Representatives its constitutional role in deciding and participating in questions of war. Following that same logic, the President and the Senate, through the treaty process, could rely on the United Nations to determine trade and tariff matters, again bypassing the prerogatives of the House of Representatives. The history of the United Nations makes it very clear that all parties in the legislative and executive branches understood that the decision to use military force through the United Nations required prior approval from both Houses of Congress.” (Fisher, p22)  However, if one takes a position of illegality of American intrusion even in this case Truman’s actions could be justified.

Truman decided not to ask Congress to declare war because, they feared, such a declaration could easily lead to an all-out effort resembling World War II. They, instead, hoped to keep the conflict limited and short. The president accepted a reporter’s suggestion that it was only a ‘police action,’ not a war. Truman also said that U.

S. force merely had to defeat ‘a bandit raid.’ His confidence grew in early July 1950, when the Soviets defined the struggle as a civil war between the two Koreas. The great powers, Moscow urged, should stay out of it.

Clearly, Stalin had no intention of becoming directly involved. But that raised a greater danger in Truman’s mind: Korea was perhaps a trap to draw in U.S. forces while the Soviets struck in the most vital areas of Europe or the Middle East.

“‘We are fighting the second team,” Acheson warned, “whereas the real enemy is the Soviet Union.” (Rearden, p.30) Thus, he and the president wanted no congressional declaration of war on North Korea because the real war might soon erupt elsewhere. In that case, Truman told a reporter privately, the United States would abandon Korea because he wanted any showdown to come in western Europe, “where we can use the bomb.

” (Rearden, p.30);Meanwhile, Congress, at Truman’s request, created ever-larger power for the president’s use. During the summer of 1950, U.S.

ground forces rose from 630,000 to 1 million. A volunteer army disappeared, and a military draft began to call up eighteen-year-olds. Congress did all this with remarkably little complaint. Only the Republican Senate leader, Robert Taft of Ohio, repeatedly declared that if Truman got away with sending troops to Korea without Congress’s approval, the president “could send troops to Tibet .

.. or to Indo-China or anywhere else in the world, without the slightest voice of Congress in the matter.” (Taft, p.

41) Until the war began to go bad in late 1950, however, most of Congress did not want to challenge the president’s powers. Taft also blasted Truman’s use of the UN resolutions as a justification for sending Americans to faraway Korea. But the president and Acheson moved to increase the UN’s authority. They knew that when the next crisis arose, the Soviets would probably be back in the Security Council to veto any attempt to stop a Communist invasion.

The United States, therefore, proposed that if, in the future, the Security Council could not act, the General Assembly (where no veto power existed) could pass resolutions asking UN members to take collective action, including the use of force. This “Uniting for Peace” resolution passed in October 1950. It changed the UN. In the future, the organization could be mobilized by the United States regardless of the Soviet veto— if, that is, U.

S. officials controlled a majority of the vote. They did enjoy such support in 1950. But what might occur if that majority turned neutral or even favored the Soviet case, the Americans apparently did not worry enough about in 1950.

 The Korean War had the influence upon the further development of American foreign policy. Its main consequence was that America’s traditional ideological trilogy of anti-militarism, isolationism, and antistatism was forever buried. The United States began their active policy of involvement into the domestic conflicts of other nations and very often they preferred to apply military force. It had been difficult to decide to what extent such policy could be justified, however, the fact remains that the USA were the winners in the Cold War.

  Works Cited List Donaldson, Gary A. America at War since 1945: Politics and Diplomacy in Korea, Vietnam, and the Gulf War. Westport, CT: Greenwood Press, 1996 Fisher, Louis. “The Korean War: on What Legal Basis Did Truman Act?” American Journal of International Law.

89 (1), 1995 Gaddis, John Lewis. Strategies of Containment: A Critical Appraisal of Postwar American National Security Policy. New York: Oxford University Press, 1982. Jones, Joseph M.

The Fifteen Weeks (February 21-June 5, 1947). New York: Viking Press, 1955. Lafeber, Walter. The American Age: United States Foreign Policy at Home and Abroad.

New York: W. W. Norton, 1994. Rearden, Steven L.

The Evolution of American Strategic Doctrine: Paul H. Nitze and the Soviet Challenge.  Boulder, Col., 1984.

 Robert A. Taft, A Foreign Policy for Americans New York, 1957     [1]              At the end of the Second World War Korea, a former colony of Japan, was divided into Russian and US zones of influence with the 38th parallel as the dividing line. In the northern half of the peninsula, the Soviets established a Communist government headed by Kim-il Sung. In the southern half, the Americans sponsored a nationalist and anti-Communist government led by Syngman Rhee.

On 25 June 1950, Kim’s Soviet-equipped and -trained military, accompanied by Russian advisers, launched a surprise attack across the 38th parallel with the aim of unifying the peninsula by force. The southern forces, the ROK (Republic of Korea) army, virtually collapsed. Much weaker militarily than the North and with very limited US aid, the ROK army retreated south in great haste, abandoning Seoul, the capital city.[2]              These questions have contemporary value because of the effort by President George Bush Senior to rely on Security Council resolutions for an offensive operation against Iraq in 1990?1991 and President Bill Clinton’s reliance on Security Council resolutions for air strikes in Bosnia and a threatened military invasion of Haiti in 1994.

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