국제투자분쟁에서의 항소제도 (Appellate System) 도입가능성에 관한 소고

There has been growing interest in the dispute settlement mechanism in international investment disputes following the increasing number of BITs and FTAs. Actually, investor-state disputes are generally treated in the ICSID as the leading international investor-state dispute settlement center. Since the 1997 international financial crises the rapid growth in the ICSID case load is remarkable, taking special attention of governments and academic world on the investor-state dispute issue. However, under the given high average of lost probability by states, considering the astronomical amount involved in the dispute, as the available mechanism for reviewing arbitral decisions in investor-state dispute is very limited, there has been increasing discussion about the ICSID’s problems and the possibility of institution of an appellate system in international investment disputes. In this case the WTO appellate mechanism is referred to as the best successful model even it is used principally for interstate trade disputes. In fact, the Mercosur as customs union established the Permanent Review Tribunal copying the WTO appellate model and the ASEAN has adopted in 2004 the ASEAN Protocol on enhanced dispute settlement mechanism to form an appellate body. The United States under the experiences gained from the NAFTA enacted the Trade Act in 2002 to give the Administration special authority to seek to establish an appellate body in investor-state disputes. According to this authority, the government included in the 2004 U.S. Model BIT the provision entitled “Possibility of a Bilateral Appellate Mechanism” and the FTAs concluded under TPA (Trade Promotion Authority) such as the U.S.-Chile FTA, U.S.-Singapore FTA, U.S.-Morroco FTA, the CAFTA-DR, the U.S.-Korea FTA, the provision on developing an appellate mechanism. Such appellate mechanism was also negotiated in the FTAA and MAI negotiations. The ICSID Secretariat also presented its own proposal for an appellate mechanism to be located at ICSID in October 2004. All these series of occurrences called special attentions to academic world. In my view, the introduction of appellate system will probably be proliferating in BITs and FTAs in the near future. If these mechanisms are properly implemented in a harmonious way, these could contribute to improve the jurisprudence in international investment law by increasing predictability and consistency in the interpretation of international investment law. However, there exist lots of remaining questions to be solved such as structure of appellate mechanism, the relation with domestic courts, the relation with existing BITs, FTAs, CUs, the coordination among appellate bodies, etc. I think the idea of appellate system has gained sufficient momentum to continue its discussion in both academic and practicing worlds, making not totally impossible of thinking of constitution of a single appellate body in the international investment law in a near future.