포괄적 보호조항(Umbrella Clause)의 주요쟁점과 해결을 위한 제언1)

Foreign Direct Investment has been being magnified as a stepping-stone for economic development and an indicator of the state’s national compe-titiveness. That leads to rapid growth of Bilateral Investment Agreement or Investment Chapter as one part of Free Trade Agreement between states and also a number of International Arbitration related to investment has radically increased. In particular, function, scope and effect of ‘Umbrella Clause’ which was arouse by two SGS cases, SGS v. Pakistan and SGS v. Philippines is one of the mainstays of International Investment Law and its implication has been steadily increasing. This paper focuses on the main issues of umbrella clause based on a series of related cases including two SGS cases and suggest its implications and proposals which might be helpful to Korea’s prospective way on concluding bilateral investment treaty. The main issues of umbrella clause is origins and state practices,function, scope, effect and limitation of that clause which reads as follows. There is some variance in the way worded by states in the stipulation of the umbrella clause. As a consequence, it does not exist consistent and general agreement on the interpretation of umbrella clauses. Umbrella clause, by not only protecting investor against host states’ non-sovereign breaches of undertakings, but also providing a mechanism to make host State promises enforceable, supplements defects investor protection under customary international law. Tribunals of SGS v. Pakistan and SGS v. Philippines explored umbrella clause in terms of its scope and thereafter arbitral tribunals have advanced divergent views in more specific way. It is found that arbitral tribunals divided into two approaches in construction on umbrella clause, however, a majority of tribunals follow SGS v. Philippines tribunal’ decision in which the tribunal interpreted umbrella clause broadly. As to effect of umbrella clause, tribunals deals with its impact on interaction between domestic and international law, in particular applicable law and forum selection clause in contracts. It is more convincing that initiating international arbitration with relying on BIT prevails over initiating arbi-tration on the basis of contract although contract between investor and state provides forum selection clause. Umbrella clause which serves as bridge connecting contract claims and treaty claims raises some problems due to its distinct characteristics, including restrictive interpretation of its scope in relation to domestic law, absence of bright line from stabilization clause in contract, parallel proceedings and the case of accepting contract claims despite absence of umbrella clause. The argument on umbrella clause is especially important to Korea because 25% of the overall International Investment Agreements concluded by Korea as one party contains that clause. In addition to this, Korea which is standing the both sides, developed and developing countries, needs to consider and takes a halfway position in interpreting umbrella clause; choose a narrow interpretation to lighten the burden or choose wider interpre-tation to protect the most of investor’s rights. In this respect, we proposes two measures as follows. First, Korea needs to prepare ‘Korea Model BIT’like U.S.A, Germany, Switzerland and England, reflecting contractual practice of BIT and interpretation of the arbitration tribunals to minimize the occurrence of dispute and maintain consistent stance in the negotiations. Second, it has been the tribunals’ discretion to decide which positions they will choose, narrow interpretation or wider interpretation, since there is no general agreement, so Korea also needs to make ‘Commission’ such as Free Trade Commission of NAFTA which can interpret and suggest ‘Interpretative Notes’ of umbrella clause.