한-미 FTA 투자자-국가간 분쟁해결절차(ISDS)

Abstract

The aim of this study is to review investment chapter in Korea-US FTA(KORUS FTA). The Investment chapter in KORUS FTA is the compromised outcome of the negotiation between Korea and the US. While the US side argued to negotiate based upon the 2004 US BIT model texts, Korea wanted to maintain consistency with the previous FTA and BITs that Korea has concluded. As a result, texts of investment chapter in KORUS FTA are similar to 2004 US BIT model but the investment chapter also accommodates Korea's concerns in many respects. For instances, safeguard measures are recognized for Korea and the special sacrifice requirement is specified in connection with expropriation. Also, Korean language as well as English can be used for arbitration procedures. Since lots of controversies are generated with regard to Investor-State Dispute Settlement(ISDS), it is meaningful to see how all the issues are incorporated in the investment chapter of KORUS FTA. There are certain implications for the purposes of implementing KORUS FTA and preparing future negotiations with other countries. First, it is necessary to use KORUS FTA as a template for the future FTA negotiations. Such attempt may provide consistency and predictability for the investors as well as the countries concerned. Second, it is necessary to evaluate the implication of "the future MFN" clause for the future negotiation with other countries. If a more favourable treatment for investors or investments are provided in any future FTA after KORUS FTA enters into force, such treatment may affect KORUS FTA. Therefore, FTA negotiation for liberalization of the investment needs more caution considering possible spill-over effects on KORUS FTA. Third, it is necessary to prepare a possible dispute by collecting and analysing ISDS cases and modifying the domestic system. Such a concern is legitimate in the sense that there still exist vague areas in terms of ISDS procedures despite of the detailed texts of KORUS FTA. Finally, it is necessary to minimize risks that Korean government and investors may assume through ISDS by deepening understanding on overall arbitration procedures.