리스크(risk)로서 한미-FTA 상의 간접수용 조항

This paper aims to generate a launching pad for a productive discussion about the Korea-US Free Trade agreement(KORUS-FTA) by understanding an indirect expropriation as a risk. It is controversial whether the concept of indirect expropriation developed in the international investment law is compatible to the jurisprudence of Korean property law. Nevertheless, it is certain that the Korean property law and the indirect expropriation persue the same goal, namely the balance between the property (investment) protection of individual right and the resonable regulatory power of the sovereign state. In this context, the international investment tribunal under the KORUS-FTA is expected to review the measure which causes expropriation-like effect on the investment in a similar way to the Green Belt reasoning of Korean Constitutional Court, which employs a proportionality test. As long as the Korean government would take a constitutionally justified measure, that measure would not lead to a disastrous investment claim. Especially, the investor might not want to be involved in unnecessary conflicts with the Korean government and consumers if Korea provides the US investor with compensation under ordinary circumstances. However, such doctrinal similarities could not eliminate all the possibilities of indirect expropriation claims in rare but extraordinary situations; for example, the US investor decides to give up the businesses because of allegedly too severe burden imposed by the host state. In such extreme cases, the US investor could argue for the breach of indirect expropriation clause despite the compensation measure on the ground that the compensation measure based on the Green Belt case is different from full-market value compensation prescribed by the international investment law. In addition, although the Korean government argues that relevant measures are aimed to achieve justifiable public welfare objects of Annex 11-B, it is uncertain to the Korean government whether the KORUS-FTA investment arbitration accepts the Korean argument. The reason for this is that the investment tribunal interprets the concept of justifiable public welfare objective independently from the Korean government’s intention. As a result, the indirect expropriation needs to be considered as a risk toward Korean government in the sense that Korea will be forced to suffer incredible uncertainties in a certain situation. Of course, this does not necessarily means that the indirect expropriation should be eliminated from the KORUS-FTA because the existence of risk means the existence of opportunities. In this context, the people needs to analyse the risks and opportunities of Korea to accept the indirect expropriation clause. Based on this analysis, the Korean people should consider the way to enlarge the opportunities and reduce the risks; otherwise, if the risk is incredibly bigger than the opportunities, we need to discuss this clause from scratch.