NAFTA 환경관련 투자중재사건 분석과 한미 FTA에의 시사점

Abstract

Because the Korea-US FTA and NAFTA have an overlapping contracting party, the US, their provisions have much in common. The Investment Chapter of these agreements especially show much similarities, and thanks to these similarities, it is likely that the Korea-US FTA arbitration tribunal of ISDs regarding the environment will put more weight on the NAFTA tribunals’ interpretations of those similar provisions. Since the NAFTA tribunals has already undergone many environment related arbitration cases, the interpretation of these NAFTA tribunals will help heighten the predictability of environment related Korea-US FTA arbitration cases. This paper analyses the environment related NAFTA cases where the tribunal has issued an award, which are the Metalclad case, S.D. Myers case, Waste Management case, Methanex case, Glamis Gold case, and Chemtura case. According to this analysis, the most controversial NAFTA provisions were Article 1102(national treatment), Article 1105(minimum treatment standard, fair and equitable treatment), Article 1110(expropriation). The NAFTA tribunals applied the requirement of these articles in a strict manner, and as a result the possibility of the tribunal finding a violation lessens. After the aforementioned analysis, this paper proceeds on comparing the national treatment, minimum treatment standard(fair and equitable treatment), and expropriation provisions of the Korea-US FTA and the NAFTA, and predict the impact that the environment related awards of NAFTA can have on the environment related Korea-US FTA counterpart. It is expected that the NAFTA interpretations on the national treatment and minimum treatment provisions are likely be used as they are, but not for the interpretations on expropriation, because of the differences of the expropriation provisions of the two agreements.