ISD 중재판정의 승인과 집행에 관한 연구

BIT(Bilateral Investment Treaty) or FTA(Free Trade Agreement) defines ISD(Investor-States Settlement of Investment Disputes) in its investment chapter as an important investment protection system which allows investors and host countries to resolve a dispute directly. ISD provides both local remedies and international arbitration, but investors have to choose one of them (Fork-in road). International arbitration is more attractive to investors because fairness could be secured and sovereign immunity could be avoided effectively by choosing it. In the case of local remedies, ISD occurs by amendment of laws or administrative actions of the host country; the amended law becomes the governing law, and due process of administrative actions is the only object of a hearing whereas legitimacy and legality are dealt with separately. On the other hand, ISD would be an advantage to investors because it could handle legality of the amended law or administrative actions in the international legal standard. If both parties are members of ICSID, ISD arbitration forum would be formed by Convention on the Settlement of Investment Disputes Between States and Nationals of Other States(ICSID), and if one of the parties is not a member of ICSID, a special ad-hoc committee would be organized by Additional Facility Rules of the ICSID, UNCITRAL Model Law on International Commercial Arbitration and other arbitral rules agreed between the parties in disputes. Therefore, ISD arbitrations fall into the following two categories: ICSID arbitrations and non-ICSID arbitrations. Arbitration is a series of following procedures: consultation and negotiation, submission of a claim to arbitration, selection of arbitrators, conduct of the arbitration, award, recognition of an award of the court in the execution place and enforcement of the award. Recognition and enforcement are important for securing effectiveness because an arbitral award has an effect under the range of judicial sovereignty of its venue. Recognition and enforcement of the arbitral award target problems in sphere of public law such as breaches of BIT/FTA, licensing authority and state contracts. There are some different views whether an award imposing responsibility for the fulfillment of obligations is possible, but cases and theories agree that it would be possible in principle. Recognition and enforcement ICSID arbitral awards follow provisions of ICSID Convention itself. As recognition and enforcement are independent procedures: recognition follows ICSID Convention, and enforcement follows domestic laws in venue and international treaties. If there are domestic laws about sovereign immunity, exemption of enforcement would be available. However, an exemption of enforcement is possible only for non-commercial property of state. Regulations on recognition and enforcement of non-ICSID arbitral awards in UNCITRAL Model Law and International Chamber of Commerce Arbitration Rules are not complete. Thus, recognition and enforcement of non-ICSID arbitral awards follow New York Convention: it is stance of theories and domestic courts. When New York Convention is applied, arbitration possibility and public order could become problems; courts of each country resolve these problems by a broad interpretation. An important thing is that there is no legal ground to deny recognition and enforcement of ISD arbitral awards. Finally, ICSID Convention regulates diplomatic protection as a remedy in case enforcement is not available. BIT/FTA may define installation of a panel which the third parties participate in. In this case, the investors' home country becomes a party and the new party should undergo a new procedure of the exhaustion of local remedies.