투자의 적법성과 ISD 관할에 관한 연구 - 론스타 사건을 중심으로 -

Abstract

Lone Star’s ISD, which was first filed against Korea in 2012, is likely to face a arbitral tribunal’s award soon. The amount of the claim itself is very large, and there has been a lot of controversy over its illegality in the process of acquiring and reselling Korea Exchange Bank, so the Korean people’s interest in the ISD results is quite significant. If some of the cases are lost, the impact on political and social circles can be great. Coupled with public concerns over the defeat, the Lone Star case has recently been brought back into the spotlight through the media, especially over whether Lone Star’s takeover of KEB was legitimate. In other words, there are various differences over whether Lone Star’s acquisition of KEB in 2003 was a legitimate investment in accordance with Korean law. The controversial issue is that first, the government lowered the BIS ratio of KEB to 6.16 percent at the time, making it classified as an insolvent financial institution, thus avoiding the application of the same stock ownership limit rules set by the Korean Banking Act. Second, Lone Star’s capital character is industrial capital, which is an illegal investment in violation of domestic law, so the Korean government should have actively made a jurisdictional appeal in the ISD process. However, considering estoppel and the timing of filing a plea of jurisdiction, it is deemed to be ineffective to claim the illegality of the Lone Star investment at a time when the arbitration procedure is due to be declared. Realistically, the best action our government can take will be to prepare for the upcoming arbitral award, and the specific method of which can be called a annulment procedure. Therefore, at this point, it will have to be fully reviewed in advance on how to use the strategy when applying for annulment. However, the chances of a ICSID annulment committee being accepted have been very low in recent years, which is also difficult to expect. In the end, it would be realistic to take lessons from the Lone Star case and thoroughly prevent such problems from happening again, and to establish a system of responses. In other words, our government, academia and others will have to discuss in depth how to respond to the growing number of ISDs.