한미 FTA 투자자–국가 중재의 주요 쟁점에 관한 연구

Korea-US FTA which was agreed in March 2007 and gained a lot of criticism since, has been ratified in the Assembly in November 2011. The opponents used ISD provisions in FTA as the ground and made the nation disturbed by the political conflict. The most controversial issues about the ISD provisions in FTA are; First, standing of indirect investor in ISD relating to investment and investor, Investing in prior to establishment. Second, potential damage to public policy in case that the respondent is a public entity. Third, discredit on its civil arbitrators and impartiality of ICSID as to its power to appoint the chairman of the Arbitral tribunal. Fourth, potential trouble over the provision of ‘consent prior to the fact’ in ISD as to Arbitral procedure and award, confidentiality, ground of decision, capability of appeal, risk of being claimed by foreign investors and efficacy of excluding ISD provision of FTA. However, these are caused by misunderstanding ISD and resulted in groundless fears. The most important issue of this FTA is the USA who has much experiences of 20 cases claimed by Mexico and Canada under the NAFTA and its nationals who has claimed more than 108 cases against foreign governments over the years. Based on these experiences, US government has reflected these experiences in its BIT model. Thus, it is time now to devise and develop the measures to deal with the possible ISD disputes rather than abandon the provisions. from 2012, ISD will come into effect and ISD dispute by US Investors will be possibility consequently. In this situation, we should prepare more technical analysis of ISD cases, establish a wide international arbitrators network and take systematic measures to protect our national interests.