양자간 투자협정에 의한 투자보호와 공익상의 예외조치

The basic assumptions behind Bilateral Investment Treaties(BITs) are that a bilateral treaty with clear and enforceable rules to protect and facilitate foreign investment reduces risks that the investor would face, and that such reductions in risks encourage investment. Thus, BITs establish clear rules and effective enforcement mechanism with regard to their treaty partners, and pursue the objective of investment protection by establishing rules about the host country's treatment of foreign investment and processes for enforcing these rules. The rules restrain the ability of host governments in dealing with foreign investor and investment. Actually BITs emphasize the investment protection that investment treaties provide to private investors. It is doubtful that actual system of transnational dispute relating to investment would be an unbalanced discipline that favours foreign investors and does not take into consideration the public interests and the development requirement of host countries. That's why BITs contain public interest provisions that limit the applicability of investor protection under the BIT in exceptional circumstances. These public interest provisions allow host countries to take actions inconsistent with the treaty when, for example, the actions are necessary for the protection of essential security, the maintenance of public order, or to respond to a public health emergency. As long as the host country's actions are taken in pursuit of one of the permissible objectives specified in the public interests clause, these actions do not constitute breaches of the treaty and host country should no liability under the BIT. In this paper, it is above all examined the history of public interest clauses and the prevalence of these clauses in BITs. Thereafter I analyse the two ways of taking into consideration of the public interests of host country in international investment law. Firstly, it is analysed the way which is prescribed by exceptional clauses in the BITs for the benefit of host country's interests. Secondly, in the case that dispute with regard to investment treaties is submitted to the international arbitration, it is analysed the way which is considered the public interests of host country in the interpretation and application of investment protection rules. It is very difficult to measure the protection of public interests of States in international investment law. The protection of these interests varies from treaty to treaty. The protection by jurisprudence is not necessarily stable. It depends on the arbiter's attitude, the treaty's content and the circumstances of the case. It is observed that host country's position is reinforced by means of the taking into more consideration of host country's public interests in international investment law. Thus, investors must understand that the regime protecting too much their rights doesn't serve necessarily their interests. The investment treaty clauses which guarantee too much the investors’ interests can provoke the violent reactions of the host country.