국제투자법에서의 비국가행위자

Abstract

The role of non-State Actors in international sphere has increased tremendously. It has diverse shapes in various fields of international law. In international investment law, in which the role of non-State Actor is the main subject of this paper, has some unique features, especially in the dispute resolution and rule-making power of non-State actors. Before analysing the topic, it is necessary to mention the meaning of non-State actor and the ambit of international investment law. Non-State actor has various meanings. It may mean all entities of non-State character, including international organizations and regional entities in a State. In this paper, however, it is used to represent private entities, such as transnational corporations and NGOs. Investment international law in this paper encompasses not only international law to encourage and protect international investment, but also that to regulate international investment for public interest. In the former part of international investment law, this paper analyses the characteristics of law-making power of non-State actor, the character of its rights under international investment treaty, and the experience of active role of non-State actor in international investment arbitration. The traditional activity of non-State actor in the international-rule making process, is to move its government to reflect its interest in international arena, by providing informations and their opinions, which is also the case in international investment law. A distinguished feature in international investment law-making process, however, is that related to the so-called "umbrella clause". Umbrella clause was invented for the purpose of lifting breach of investment contract to that of investment treaty. The scholastic opinions and arbitral awards on the effect of umbrella clause are not consistent. As far as such an effect is recognized, however, it may be argued that private investor has been given the power to make international law on his own investment. As to the character of the right of investors under international investment treaty, it is presented that the substantial and procedural rights of investors are not vested and subject to the subsequent practice of contracting parties to the investment treaty, including subsequent agreed interpretation. With regard to the direct arbitration between investor and host State, it has been pointed out that the model of commercial arbitration is not apt to resolve the issues of investment treaty claims. In international investment arbitration, the main concern is the balance between public policy consideration and the investor's right. Lack of transparency and the closed-door procedure have been criticized, as preventing public welfare from being duly considered in investment arbitration. It has been also contested that due to the threat of filing arbitration for trivial matters, governments hesitate to take measures necessary for public welfare. Some measures has been taken to solve these problems. including those to enhance transparency of arbitration procedure, to allow participation and surveillance of civil society and to limit the abuse of arbitration procedure. Such an experience seems to be a good guidance in attempts to strengthen the procedural right of private entities in other area of international law. It is worthwhile to mention the new movement in the regulation of transnational corporation. The regulation of international investment by a host country has been recognized as due exercise of territorial sovereignty. It has been pointed out by NGOs that some governments fail to reasonably regulate transnational corporations, due mainly to need for foreign investment. NGOs have tried to settle this matter by setting international standard, especially in human rights, environment protection, labour and anti-corruption. Due to the reluctance to recognize private entities as subject of international obligation, however, most of the international standards thus established are soft-law. Though not having legally binding force, they have some practical binding force. And their practical effect tends to be strengthened, as shown by the comparative analysis of OECD and UN guideline for transnational corporation, and UN Norms on the Responsibilities of Transnational Corporations and Other Enterprises with Regard to Human Rights of 2003. In conclusion, the role of non-State actor in international investment law is active and the salient features are its role in investment arbitration and its rule making power through the so-called 'umbrella clause'.