투자계약으로 투자보장협정상의 ISDS를 피할 수 있는가?

The answer to the topic of this paper requires analysis of several important and interesting issues of modern treaty-based investment arbitration: relationship between contract claim and treaty claim; jurisdiction of treaty-based investment arbitration tribunal upon claim which is treaty-base but closely related to breach of investment contract; effect of umbrella clause upon contract dispute settlement clause; parallel proceedings of investment arbitration and contract dispute proceeding; and waiver of the right of access to ISD. As to the relationship between contract claim and treaty claim, most tribunal follows the course set in the Vivendi annulment decision by applying the distinction between treaty-based claim versus contract-based claim. It is well-established that treaty claim, even though related to breach of contract, is under the jurisdiction of treaty-based tribunal, while pure contract claim is under the jurisdiction of contract-based dispute settlement mechanism. Becuase the distinction between treaty claim and contact claim is the nature of claim, i.e. whether it is based upon treaty or contract, It is almost impossible that the jurisdiction of treaty-based tribunal would be impaired by the existence of contract dispute settlement clause. As to the umbrella clause, there is a true divide between those in favor of and those opposed to the elevation of contract claim into the treaty claim. In any case, the effect of the umbrella clause have negative impact upon the effort to escape BIT-based arbitration through contract dispute settlement mechanism. The legal theories related to prevent parallel proceedings, such as res judicata, lis pendens, and fork in the road clause, provide little help to the effort to escape BIT-based arbitration through contract dispute settlement mechanism. The reason is that in order to apply these theories, two cases concerned should pass triple-identity criteria, i.e., identical relief/object, identical party, and identical cluse of action. As to waiver, it is not clearly settled whether the investor case waive the right to access to treaty-based arbitration tribunal. The better view appears to be that thought the right finds its basis in investment treaty between States, it is bestowed directly upon investor and can be waived by his free choice. Therefore, this paper, though with some qualifications, treaty-based ISD may be escaped through clear expression of such intent in contract.