해외에너지자원개발협정의 법적 쟁점과 분쟁사례

This article reviewed legal issues and relevant cases caused by the interpretation or application of energy and resource development agreements for the production and development of overseas oil, natural gas and mineral resources. The implementation of foreign investment agreements for the overseas energy and resource development requires enormous capital for long periods of time and involve regulatory intervention by the government of the host state. Because of investment risks caused by legislative and administrative control of the host state, overseas energy and resource development may involve various types of disputes. Therefore, the internationalization of contract terms are essential in order to protect rights of foreign investors under the energy and resource development agreements. This article proposed, as contractual devices for foreign investment protection, to internationalize the terms of the agreements by including special clauses on stabilization, choice-of-law, arbitration and sovereign immunity exclusion. Since the Republic of Korea depends on imported energy about 97% for its consumption of energy, Korean companies have a great interest in concluding investment agreements for overseas energy and resource developments. For the successful development of energy and natural resource, it is very important to develop legal devices for foreign investment protection. In addition, it should be noted that commodities and technology necessary for the exploitation and development of energy and resources may include dual-use items to be used for military purpose. Companies engaged in overseas energy and resource development should pay special attention to the export or reexport of dual-use items used for the exploitation and development of energy and resources, in order not to be imposed sanctions or penalties under the national export control regulations, and administer properly strategic items granted export license in oder to prevent the host state from using them for military purpose. It should be also noted that the United States(U.S.) export control laws and regulations such as Export Administration Regulation(EAR) may be applied extra-territorially on Korean companies working for energy cooperation with North Korea. Therefore, companies engaged in oversea energy and resource developments should understand fully export control laws and regulations on strategic items and abide by them, in order to escape from civil and criminal penalties under the U.S. laws and regulations on export control.