국제거래상의 대체적 분쟁해결제도 - 한 . 미 FTA 내 투자자와 국가 간의 분쟁해결제도를 중심으로-

Alternative Dispute Resolution is a procedure for settling a dispute by means other than litigation, such as arbitration or mediation. Recently special type of dispute settlement, investor-state dispute settlement, is introduced through the international treaties, which is conflicting with the traditional concept of parties at the international dispute settlement resolution at the point that the individuals can institute the dispute procedures directly against the state. Usually at the investor-state dispute settlement, the parties consent to the submission of a claim to arbitration. But historically arbitration was established as the method of private business dispute resolution and it is doubtful if the arbitration can fully serve the public welfare objectives, such as environment or any other public interest. In KOR-US FTA, each party consents to the submission of a claim to arbitration in accordance with that Agreement. Therefore the public concern is focused on the issue of that arbitration can serve the national public interest when the conflict of private interest with public interest occurs. As to these arising questions, the Article 11.21 Transparency of Arbitral Proceedings and the Annex 11-D Possibilities of a Bilateral Appellate Mechanism in KOR-US FTA should be taken into account as the answer.