투자중재에 있어서 투자적법성 요건에 관한 연구

Abstract

It has been a trend in the study of international investment law that the principle of legality, coupled with the good faith rule, has been routinely applied to the conducts of states, rather than individual investors. Such principles have been invoked and discussed primarily in cases when, for example, states refuse to renew licenses without just causes; breach promises made in the process of making investment; decline to perform consultation, and unilaterally withdraw from contractual agreements. Of recent, more focus is given to the issue whether an investment should be left outside the both substantial and procedural protection of the investment protection regime, for it has been made in breach of the laws and regulations of the host states, or the principle of good faith. The principle of legality is frequently invoked in the phases of both admissibility test, and merit review. It has relevance to the construction of both the ICSID Convention, and relevant BITs. It is also questionable whether, in the absence of the manifest provisions in BITs, such a rule can be implied through the construction of tribunals. This discussion also reflects a conflict at a more fundamental level that while the integrity of the investment regime should be preserved through discrediting patently illegal and immoral "investments", foreign investment itself should be promoted, and the balance should be stricken between the interests of hosting states, and those of individual investors. Decisions differ, and many of them remain contextual. More pertinent issues also remain to be solved. Who should justifiably bear the burden of proof when the issue of legality is raised ? What degree of breach of laws would be tantamount to the breach of the principle itself? By what standard, can the breaches of the good faith rule be judged upon? Under what terms and conditions, the international public law principles, and their national counterparts could be utilized in the settlement of investment disputes? It is up to the tribunals and those concerned researchers in the investment law to continue to exert efforts to bring the above discussions in line with the spirit of transparency and consistency.