UNCITRAL 투명성 규칙 초안과 한미 FTA 중재절차의 투명성 규정의 비교 검토

KORUS FTA provides for options of arbitration rules, one of which is the UNCITRAL arbitration rules. KORUS FTA has unique provisions on transparency of arbitral proceedings. However, other International Investment Agreements ("IIAs"), one of the parties to which Korea is, do not have such provisions. The UNCITRAL Working Group II has finished the third round of discussions on Draft Rules on Transparency ("TR") at its 58th session in February, 2013. TR is expected to be adopted at the next session of UNCITRAL to be held in July, 2013. During the discussions at the sessions of the UNCITRAL Working Group II, one of the most thorny issues is the scope of application of TR. Many delegations supported that the application of TR should be based on the so-called "opt-in approach" with regard to existing IIAs, while TR is automatically applicable to future treaties unless the disputing parties have ‘opted out’ of the application of TR. Other delegations proposed that TR should be applied following the evolutionary developments of Customary International Law in terms of treaty interpretation. With regard to other issues of transparency of arbitral proceedings, TR has provided for publication of information on arbitration commencement, automatic publication of documents on list, publication of and/or access to other unlisted documents, submission by a third persons, contents and format of amicus submission, non-disputing Party's submission on treaty interpretation, public hearings, exceptions to transparency, and the establishment of repository. In similar vein, KORUS FTA has provisions on publication of information on commencement of arbitration, written amicus submissions, submissions on treaty interpretation from non-disputing Party, and public hearings. Under KORUS FTA, however, there is no facility like repository as proposed in the context of TR. Under TR, a repository is to take an important role of disseminating transparency through keeping information or documents on treaty-based investor-state arbitration initiated under the UNCITRAL arbitration rules, or making such information or documents available to the public. As for Korea, the issue of the application of TR to existing treaties does not look very difficult to handle. The proposed repository is sure to contribute expanding access to information and documents which is beneficial to scholars and practitioners in Korea. Hopefully, the Korean Government may not resist the concept of good governance which might be enhanced by increased transparency in a treaty-based investor-state arbitration.