한미 FTA 투자자–국가 중재의 주요 쟁점에 관한 연구
Practical Review of Core Issues in Investment Arbitration at KOR-US FTA
0
조회
0
다운로드
7
인용
0
참고문헌
키워드
초록
Korea-US FTA which was agreed in March 2007 and gained a lot of criticism since, has been ratified in the Assembly in November 2011. The opponents used ISD provisions in FTA as the ground and made the nation disturbed by the political conflict. The most controversial issues about the ISD provisions in FTA are; First, standing of indirect investor in ISD relating to investment and investor, Investing in prior to establishment. Second, potential damage to public policy in case that the respondent is a public entity. Third, discredit on its civil arbitrators and impartiality of ICSID as to its power to appoint the chairman of the Arbitral tribunal. Fourth, potential trouble over the provision of ‘consent prior to the fact’ in ISD as to Arbitral procedure and award, confidentiality, ground of decision, capability of appeal, risk of being claimed by foreign investors and efficacy of excluding ISD provision of FTA. However, these are caused by misunderstanding ISD and resulted in groundless fears. The most important issue of this FTA is the USA who has much experiences of 20 cases claimed by Mexico and Canada under the NAFTA and its nationals who has claimed more than 108 cases against foreign governments over the years. Based on these experiences, US government has reflected these experiences in its BIT model. Thus, it is time now to devise and develop the measures to deal with the possible ISD disputes rather than abandon the provisions. from 2012, ISD will come into effect and ISD dispute by US Investors will be possibility consequently. In this situation, we should prepare more technical analysis of ISD cases, establish a wide international arbitrators network and take systematic measures to protect our national interests.
Abstract
Korea-US FTA which was agreed in March 2007 and gained a lot of criticism since, has been ratified in the Assembly in November 2011. The opponents used ISD provisions in FTA as the ground and made the nation disturbed by the political conflict. The most controversial issues about the ISD provisions in FTA are; First, standing of indirect investor in ISD relating to investment and investor, Investing in prior to establishment. Second, potential damage to public policy in case that the respondent is a public entity. Third, discredit on its civil arbitrators and impartiality of ICSID as to its power to appoint the chairman of the Arbitral tribunal. Fourth, potential trouble over the provision of ‘consent prior to the fact’ in ISD as to Arbitral procedure and award, confidentiality, ground of decision, capability of appeal, risk of being claimed by foreign investors and efficacy of excluding ISD provision of FTA. However, these are caused by misunderstanding ISD and resulted in groundless fears. The most important issue of this FTA is the USA who has much experiences of 20 cases claimed by Mexico and Canada under the NAFTA and its nationals who has claimed more than 108 cases against foreign governments over the years. Based on these experiences, US government has reflected these experiences in its BIT model. Thus, it is time now to devise and develop the measures to deal with the possible ISD disputes rather than abandon the provisions. from 2012, ISD will come into effect and ISD dispute by US Investors will be possibility consequently. In this situation, we should prepare more technical analysis of ISD cases, establish a wide international arbitrators network and take systematic measures to protect our national interests.
참고문헌 (22)
- 대한상사중재원, "투자중재판정사례집, Vol. I" (2009)
- 대한상사중재원, "투자중재판정사례집, Vol. 2" (2010)
- 류병화, "국제법 Ⅰ" (2000), 법문사
- 목영준, "상사중재법론" (2000), 박영사
- 법무부, "한미 FTA 투자분야 연구" (2008)
- 법무부, "한국의 투자협정 해설서" (2010)
- 지식경제부, "투자자-국가간 투자분쟁 사례로 본 정부정책적 시사점" (2007)
- 高俊誠, "國際投資紛爭解決센터(ICSID)의 制度에 관한 연구 : ICSID協約의 立法經緯 및 實行을 중심으로", 박사, pp.1991
- 고준성, "ICSID의 조정 및 중재판정, In 국제투자분쟁해결사례" (1990), 법무부
- 具忠書, "國家와 外國人間의 投資紛爭의 解決에 관한 硏究 : 仲裁에 의한 解決을 中心으로", 박사, 법학, pp.1990
- Barton, J. H., "International Trade and Investment" (1986), Kluwer Law International
- Delaume, Georges R., "Transnational Contracts: Applicable Law and Settlement of Disputes" (1988), Oceana Publications
- Delaume, Georges R., "ICSID Arbitration: Practical Consideration" (1984), Sweet & Maxwell
- Jackson, John H., "Legal Problems of Economic Relations" (1995), Grotius Publications Limited
- Jackuowski, J., "Reflection on the Philosophy of International Arbitration and Conciliation" (1990), Sweet & Maxwell
- Kishoiyian, Bernard, "The Utility of Bilateral Investment Treaties in the Formulation of Customary International Law" (1994), Foundation press
- Schwarzenberger, "Foreign Investments and International Law" (1981), Oceana Publications
- Sornarajah, M, "The International Law on Foreign Investment" (1994), Cambridge Univ. Press, Grotius Publications
- Guzman, Andrew T., "Why LDCs Sign Treaties That Hurt Them: Explaining the Popularity of Bilateral Investment Treaties", Virginia Int. L. J., 38 (1998)
- Kishoiyian, Bernard, "The Utility of Bilateral Investment Treaties in the Formulation of Customary International Law", J. INTL BUS., 14 (1994)
- Parra, Atonio R., "Applicable Substantive Law in ICSID Initiated Under Investment Treaties", News from ICSID, 17(2) (2000)
- Schmidt, J. I., "Arbitration Under the Auspices of the ICSID: Implications for the Decision on Jurisdiction in Aloca v. Jamaica", Harvard J. Int. L., 17 (1984)