국제투자계약에 서명하지 않은 국가의 중재당사자 지위

Arbitration has been frequently used to settle disputes arising out of international commercial transactions involving states, state-owned enterprises, and multi-national enterprises. Under the investor-state dispute settlement mechanism in an investment treaty, an investor may initiate claims against a host state without resorting to the diplomatic protection of the home state of the investor. Nowadays, arbitration is one of the most preferred methods of resolving disputes involving foreign investors and host states. With regard to an international investment agreement to which an entity controlled by a state is a party, there are issues on the matter whether a state is a party to an arbitration based on such agreement, even though it has not signed the agreement at all. It is an established norm that a natural or legal person should not be driven to arbitration without its consent to arbitration because the basis of an arbitration is the agreement between the disputing parties to refer their disputes to arbitration. This approach may, however, cause unfairness or injustice. Many arbitral tribunals under the ICSID Convention made a decision to the effect that they had jurisdiction over the disputes between foreign investors and host states even though the states had not signed arbitration agreements. In rare situations, a non-signatory state may also be recognized as a party to an arbitration agreement on the basis of principles and theories developed in a particular national legal system.