國際投資法에 있어서 “契約上 權利”의 收用 및 보호

The subject-matter, whether or not the governmental conduct constitutes the expropriation of contractual rights when the host State violates or abrogates the investment contract which is concluded with foreign investors, is controversially treated in international investment law as to its doctrinal theory and judicial precedents. Powerful countries had protected their national's overseas property or investment by using the force before 20th century. After Convention respecting the Limitation of Employment of Force for Recovery of Contract Debts has been passed in 1902, the principle to resolve the international disputes peacefully was established and the disputes between host States and investors were settled mainly by exercising the diplomatic protection rights of investor's home country. Because developing countries, newly-independent countries and communist countries have carried out large- scale nationalizations of foreigners' investments since the latter half of 19th century, lots of disputes about the expropriation of contractual rights also have occurred. Since 1980s, in order to extract natural resources and get the technology transfer and the market access, many developing countries have propelled the attracting investment policy and signed the BIT with advanced capital- exporting countries, and newly internationalized form of investment contract with foreign investors, from which the foreign investors were given the locus standi to the international arbitration procedures, one of which is offered by ICSID. Therefore, investors' investment or contractual rights can be strongly protected by international law, especially according to the FTA, BIT or the multilateral treaty on investment as well as investment contract itself. But, on the other hand, there is an obstructive influence when host State is going to enact the law or policy to regulate the action of alien investors, even though it aims to perform governmental policy for public purposes or objectives. Consequently, it is necessary to have a further study on the international investment law for the sake of achieving the balance between the private benefit of foreign investors and public purpose or benefit of host States.