Academic journal article Vanderbilt Journal of Transnational Law

The Importation of Sexism: A Cost-Benefit Approach to the U.S.-South Korea Friendship, Commerce and Navigation Treaty

Academic journal article Vanderbilt Journal of Transnational Law

The Importation of Sexism: A Cost-Benefit Approach to the U.S.-South Korea Friendship, Commerce and Navigation Treaty

Article excerpt

ABSTRACT

The U.S.-South Korea Friendship, Commerce and Navigation Treaty was entered into by the signatory countries following World War H and governs the actions of corporations operating in a foreign country. One provision of the Treaty allows foreign corporations in the United States to choose executives "of their choice," arguably without regard to the statutory protections that the United States affords in the hiring process. In this Note, the Author contends that the U.S.-South Korea Friendship, Commerce and Navigation Treaty results in discrimination against women in the United States because South Korean employers tend to choose South Korean men to fill particular positions. To address this discrimination, the Author proposes that the United States either abolish the U.S.-South Korea Friendship, Commerce and Navigation Treaty or, alternatively, replace it with a bilateral investment treaty.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. GENDER ROLES IN SOUTH KOREA
     A. Home and Personal Lives
     B. Corporate Culture
III. SOUTH KOREAN EMPLOYMENT LAWS
     A. Statutory Protections
     B. Laws in Practice
 IV. SOUTH KOREAN COMPANIES OPERATING IN
     THE UNITED STATES: TREATMENT OF
     AMERICAN WOMEN
  V. U.S.-SOUTH KOREA FCN TREATY: DO THE
     COSTS--IMPORTED SEXISM--OUTWEIGH THE
     BENEFITS?
     A. Original Purpose of the Treaty
     B. The Courts Weigh In
     1. Fifth Circuit: Spiess v. C. Itoh & Co.
        (America), Inc
     2. Supreme Court: Avigliano v. Sumitomo
        Shoji America, Inc
     3. Recent Circuit Court Interpretations
 VI. ANALYSIS AND PROPOSED SOLUTION: BILATERAL
     INVESTMENT TREATIES
VII. CONCLUSION

I. INTRODUCTION

The Friendship, Commerce and Navigation (FCN) Treaty has been called "one of the most familiar instruments known to diplomatic tradition." (1) The first FCN treaty negotiated by the United States was with France in 1778, (2) and in accord with most of the earliest treaties, mainly concerned the treatment of citizens abroad. Since 1945, however, FCN treaties have increasingly focused on protecting corporations and attempting to define their rights. (3) Following World War II, as the United States looked to promote and advance international investment, the United States entered these treaties with more than two dozen countries, including Japan, Germany, and Greece. (4)

Generally, FCN treaties protect persons by defining the treatment each signatory country owes the citizens of the other, the rights of those citizens to engage in business and other activities within the boundaries of the other signatory nations, and the respect due those citizens, their property, and their enterprises. (5) Under the terms of a typical FCN treaty, a corporation is protected by receiving legal recognition from each signatory to the treaty. (6) Those corporations may then conduct business in a signatory foreign country on a comparable basis with that country's domestic companies. (7)

The FCN Treaty between the United States and South Korea, signed in 1956 by President Dwight D. Eisenhower and Foreign Affairs Minister Chung W. Cho, gives Korean and U.S. companies mutual rights while operating within the other's borders. (8) The nations signed it with the goals of "strengthening the bonds of peace and friendship traditionally existing between" each other and of "encouraging closer economic and cultural relations between their peoples." (9)

One particular provision in many FCN treaties, including that between the United States and South Korea, is the "employer choice provision," which gives companies the right to hire the executive personnel "of their choice" in their operations abroad. (10) The provision provides a protection to foreign corporations that hire their own citizens to fill high-level positions. (11) Article VIII(1) of the FCN Treaty between the United States and South Korea provides that "[n]ationals and companies of either Party shall be permitted to engage, within the territories of the other Party, accountants and other technical experts, executive personnel, attorneys, agents and other specialists of their choice. …

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