법률행위의 취소의 효력

Abstract

In the International Economic Law, national treatment and most-favored-nation treatment are the main principles of non-discrimination. In the International Investment Agreement(IAA), national treatment provisions are stipulated without exception. Among the mandatory provisions of the IIA, the most widely prescribed form of provision is the National Treatment clause. In the early stages of the IIA, the national treatment clause was briefly defined, but as it has been defined differently as it went through different eras. At the beginning of the IIA, national treatment was defined in one article, such as most favored nation and Fair & Equitable Treatment. This was all based on the principle of the Non-Discrimination principle. However, in recent years, the IIA has evolved to alone type national treatment clause in which IIA defines the content of national treatment independently. The term of the national treatment clearly defines the object of application as “establishment, acquisition, expansion, management, conduct, operation, and sale or other disposition of investments.” National treatment provisions that include “established” and “acquired” are pre-entry protected national treatment provisions. As the substantive requirements of national treatment, three substantive requirements were established: ① comparison of “the homogenious situation” between investors and investors in host countries ② existence of discriminatory treatment ③ legitimacy of the purpose of discrimination treatment. And in the Investor-State Dispute Settlement (ISDS) arbitration jedgement, this requirement is strictly followed and there has been no disagreement. What has been recently discussed in homogeneous situations is the “legal requirements” of like circumstance between the objects of comparisons. In other words, it was established as the main requirement that the same legal system should be applied to peers in like circumstance. In the ISDS arbitration judgement, the citation of WTO/GATT's national treatment law has been denied. However, it is positive about the application of general exception clauses for common good such as public health and environmental protection just like the Article 20 of the GATT. That is because the IIA does not have the same grounds as the general exception. Looking at the precedents of ISDS arbitration, arbitration applicants often claim violations of the F&ET provisions at the same time as violations of national treatment. This is because the law of discrimination overlaps. In fact, national treatment is interpreted very flexibly in terms of the economic sovereignty of the host country, so there are few precedents judged as violations. On the contrary, various discrimination problems arising from the policy implementation process constitute F&ET violations. What matters in relation to the National Treaty is the fact that there are cases of de facto or disguised discrimination although it looks indiscriminate superficially in the policy enforcement of the host country. The restriction on foreign investment due to national security reasons is an example. Since this is limited to domestic law, in theory, it is more likely to be treated as a violation of national treatment. In addition, in ISDS arbitration is negative about the citation of the WTO law. However, there is no governing law in the case of a claim for violation of national treatment in areas such as intellectual property rights. In some cases, ISDS arbitration and WTO Dispute Settlement System were conducted simultaneously. Therefore, the contention between ISDS and WTO/DSB is a remaining issue.