국제투자중재에서 투자자의 국적 변경에 관한 사례연구

Abstract

The IIA does not explicitly stipulate the issue of investor eligibility, which may change over time. The determination of the standard point of party eligibility shall be governed by arbitration practice. In this study, the issue of investor eligibility that arises in the process of converting an already implemented investment into a foreign investment was reviewed, focusing on major arbitration award cases. In particular, this study examined in detail how arbitrators handling investment arbitration cases have interpreted terms used in related agreements and how they judge personal jurisdiction. The issue addressed in this study is when to assess the nationality of investors in IIA-based disputes. This is a matter of when to evaluate the nature of the investment for BIT application, and ultimately, when is the standard time to evaluate the foreign nature of the investment. In order to qualify as a party in a dispute between the host state and the foreign investor under the IIA, personal jurisdiction must be satisfied. However, this may change over time. Therefore, the arbitral tribunal's assessment of when it has personal jurisdiction is of utmost importance. Through international investment dispute cases, we can see that nationality diversity requirements are required not only on the date an investment dispute arose and the date arbitration began, but also on the date the investment was initiated. Whether such requirements must be fully met from the date of initial investment execution to the date of commencement of arbitration, or whether it is sufficient to meet such requirements from the time of violation of the agreement, is evaluated differently depending on factors such as the time of change of nationality of the investor, whether there is dual nationality, investment holding or new investment, etc..