국가안보 측면에서의 투자분쟁 검토 및 대응 방안 모색

Abstract

As Trump administration took several domestic initiatives on restricting foreign direct investments into the U.S. in the name of protecting U.S. national securities in areas of critical infrastructures, critical technologies and sensitive personal information. Countries including the European Union have taken similar steps by introducing or updating instruments and regulations. Several cases based on Argentina-U.S. BIT were brought to the ISDS arbitration tribunal by foreign investors challenging Argentine Government’s measures taken in time of economic crisis in the early 2000s. These cases are considered typical ISDS cases focusing on the interpretation of security exception clauses of a investment treaty. It is noteworthy that each ISDS arbitration tribunal had different legal views on same legal issues such as applicable laws and standards for the security exception clauses of the BIT. On April 2019, the decision of the WTO Panel in Russia-Measures Concerning Traffic in Transit (DS512) was published. The WTO Panel Report is of major significance as this dispute is the first in which a WTO dispute settlement panel decided on the issue of jurisdiction over a dispute in which a WTO member claims that its measures were justified on national security grounds and to what extent a WTO member may exercise its discretion in case the term “which it considers” is included in the security exception clauses. The WTO Panel report on Russia-Measures Concerning Traffic in Transit is expected to serve as references in ongoing and future security-related disputes in Bilateral Investment Treaty (BIT) and Free Trade Agreement (FTA), which have same or similar clauses as Article 21 of the GATT. If it is understood that the main objective of an investment treaty is to provide stable investment environments for foreign investors, the State should prioritize on protecting and promoting foreign investments to pursuing legitimate non-economic policy objectives. On the other hand, if the objectives of an investment treaty covers both protecting foreign investments and protection of society and the environment, security exception clauses may provide a safety value to a State. This inevitably leads to the increased utilization of ISDS mechanism relating to the application and interpretation of the national security exception clause under a investment treaty. Laws and regulations restrict foreign investments into critical infrastructure, critical technology, and access to sensitive information are in the trend of expansion across the States for reasons of national security. Nevertheless, in case investment treaty either lacks in security exception clauses or have ambiguous or undefined terms of security exception clauses, it is unclear whether the expanding trends of foreign investment restrictions in domestic laws and regulations are in line with States’ international obligations arising from the investment treaty. Under the circumstances, it is time to introduce model clauses on national security exceptions that are commonly applicable to the investment-related treaties including BITs and FTAs. Furthermore, it is desirable to declare health, security and environment as one of the policy objectives of a treaty and incorporate into the preamble of the treaty. In domestic front, it is worthwhile to revisit domestic laws and regulations in the direction of expanding the scope of national security exceptions covering foreign investment restrictions.