투자자-국가 간 분쟁해결제도(ISDS)의 우리나라 제소 현황과 과제

Abstract

The Investor-State Dispute Settlement (ISDS) is a foreign country's compensation for damages incurred in the event of a violation of the investor protection obligation based on the investor protection agreement concluded under the BIT or FTA of the host country. It is a system in which investors directly receive compensation from the host country through international arbitration. However, since the investment contracts concluded by foreign investors with host countries do not bind countries according to international law, those who view ISDS negatively benefit foreign investors and companies, and some host countries perceive it as a de facto threat to public policy. are doing In Korea, there have been 17 ISDS-related lawsuits. Of the 10 lawsuits filed by Korea, three cases have now been decided and one case has been suspended in the middle. Most of the lawsuits are still in progress. There is one reconciliation, and the rest are still in progress. Looking at the cases, it can be seen that most of the claims against Korea are developed countries or international investment capital, while the countries that Korean investors file lawsuits are mainly emerging developing countries. Since Korea has an economic foundation that is highly dependent on foreign countries, the inflow of foreign investment as well as the overseas expansion of domestic companies play a very important role. In particular, in Korea, the scale of overseas expansion of Korean companies is more than twice the size of foreign investment, and ISDS is a device that can actually help Korea's national interest depending on whether it is used or not. So far, Korea is in a defensive position against ISDS. It is necessary to support Korean companies so that they can be prepared as a device that can help more active investment activities overseas. It is true that Korea is the best investment destination from the point of view of an advanced capital country, but it seems that there are sectors where the government’s investor protection has not yet met the standards of advanced countries. In order to minimize the possibility of complaints from foreign investors, it is necessary to create a domestic environment that meets global standards. If a lawsuit is filed, it is necessary to increase the transparency of the regulatory process in order to increase the chances of winning. In addition, the role of the Korean government will also play an important role in the process of more actively negotiating with the country concerned about unfairness or loss that Korean companies will receive in their overseas expansion. Efforts to deliver should be strengthened.