개성공단 투자보호와 분쟁해결제도의 개선방안 고찰

Abstract

The Gaesung dispute over exorbitant demands on several working conditions could be repeated considering political and economic situations surrounding the Gaesung Industrial Complex and the Korean peninsula. For these reasons, the dispute should be peacefully solved by a legal process mentioned in the mutual agreement concerning investment protection in both regions, not by taking such a step caused by public sentiment. Against this backdrop, we review major provisions of the Agreement on the protection of investment between the Republic of Korea and the Democratic People's Republic of Korea, and the Agreement on dispute settlement procedure concerning commercial dispute. The Agreements could be arbitrarily interpreted because some provisions are abstract or ambiguous. It seems possible for North Korea to violate the Agreements whenever it wants. Moreover, North Korea's annulment declaration is relevant to, what is called, indirect expropriation, which can also be called equivalent, tantamount, creeping, constructive, disguised, or de facto expropriation. It is recognized in international law that measures taken by a state can interfere with property rights to such an extent that these rights are rendered so useless that they must be deemed to have been expropriated, even though the state does not purport to have expropriated them and the legal title to the property formally remains with the original owner. Jurisprudence about international investment agreement to date has identified a series of key principles relevant to analyzing whether there has been an indirect expropriation. Considering these important factors concerning indirect expropriation, North Korea's annulment declaration can be seen as an indirect expropriation. In order to settle the dispute over investment protection promptly and effectively, the Agreements should be revised. First, the definition of some key words or phrases should be clarified. Second, methods of giving investors back their profit should be designed. Third, effectiveness of dispute settlement procedure should be enhanced. The important thing is the Korean government's will to make a proper legal process to settle the disputes peacefully. In the long term, it could be a better idea to bring North Korea before international arbitral tribunals such as ICSID or UNCITRAL in order to settle the disputes fairly and effectively, and to promote the relationship between both regions.