국제투자협정상 충분한 보호 및 안전 의무
Full Protection and Security in International Investment Treaties
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Most investment treaties contain provisions to afford the nationals of the other Parties full protection and security for investments. These full protection and security clauses oblige the host State to take reasonable measures to protect investors and their investments from physical violence and damage by the host State or its organs or by the third parties. The language of the obligation in them, however, is very varied and ambiguous and also has not any reference to the standard to be applied in interpreting it in the vast majority of BITs. The lack of reference to it has led to a debate on whether a strict liability is imposed on the host State by them or how its scope shall be defined. There seems to be a general consensus that the clauses do not bring a strict liability to the host State and are limited to physical security under customary international law. But recently a number of tribunals have found that the full protection and security standard can be extended beyond physical security. It remains to be seen that the tendency of tribunals to extend its scope to the legal protection will be established.
Abstract
Most investment treaties contain provisions to afford the nationals of the other Parties full protection and security for investments. These full protection and security clauses oblige the host State to take reasonable measures to protect investors and their investments from physical violence and damage by the host State or its organs or by the third parties. The language of the obligation in them, however, is very varied and ambiguous and also has not any reference to the standard to be applied in interpreting it in the vast majority of BITs. The lack of reference to it has led to a debate on whether a strict liability is imposed on the host State by them or how its scope shall be defined. There seems to be a general consensus that the clauses do not bring a strict liability to the host State and are limited to physical security under customary international law. But recently a number of tribunals have found that the full protection and security standard can be extended beyond physical security. It remains to be seen that the tendency of tribunals to extend its scope to the legal protection will be established.
참고문헌 (20)
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