국제투자법에 따른 ‘계약상 권리’의 보호

The subject of international investment law is mainly about issues surrounding the protection of investors based on general international law and bilateral or multi-lateral international investment agreements. It is well established international rules that the treaty rights of investors are protected by densely knitted networks of international treaties and customary international law. Investors are enjoying national treatment, most-favoured-nations treatment, and full compensation in the event of expropriation. They are entitled to initiate claims directly against host states through investor-state dispute settlement mechanisms. Korea has negotiated and concluded more than 80 BITs, and ranks the second in Asian regions in terms of the numbers of BITs to which Korea is a party. Korea is also preparing for FTAs with various states. Many controversial issues have been raised in international treaty arbitrations. Among them are rather new issues about the difference between treaty claims and contract claims which are closely linked with umbrella clauses in international investment treaties. States have been decided responsible for internationally wrongful acts done to acquired rights based on concession agreements under the principle of state responsibility under customary international law. As international investment disputes are increasingly raised before international arbitral tribunals, the issues on the protection of contractual rights are attracting greater attention around the world. In particular, it is fiercely debated in a treaty arbitration whether the rights of investors based on investment contracts are protected by umbrella clauses. Contract claims are normally dealt with by national courts or tribunals. For the present, arbitral awards are showing different decisions on the effect of umbrella clauses in international investment treaty. It is most likely that close and detailed provisions can prevent uncertainties as to the effects of umbrella clauses on the contractual rights of investors.