체계이론에 따른 국제투자법의 이해- 세계화 시대에서 법의 기능과 개념을 중심으로 -

This paper is aimed to provide with the ground for constructive debate for Korea-US Free Trade Agreement: Will Korea accept the international investment law through Korea-US Free Trade Agreement? This is related to the question: is it possible to say that the international investment law is the law? In fact, although the ICISD Convention and many bilateral investment treaties established the major procedural framework of the current global investment law, it remains controversial as to whether global investment law can or should be qualified as a legal system. The answer to this question might make many differences in proposing solutions to problems mushrooming in the global investment field. Here, application of Gunther Tuebner and Niklas Luhmann’s systems theory can provide theoretical clues to those issues by focusing on the function of a legal system. Systems theory argues that the law as a legal system can and should stabilise the normative expectations which enable actors to continue communicative interactions, rather than to control behaviours or resolve conflicts. To put it differently, the law can be said to emerge when one can find any degree of this function which is achieved through autopoietic structuralisation and operation of the constitutive elements of a certain normative system. Based on this theoretical framework, the global investment field has not produced the law as a legal system until it has gained enough capacity to stabilise normative expectations. This argument requires the formation of the global investment regime. The global investment regime is gradually formed by the relevant global actors (e.g. nation-states, global investors and social activists) who cooperate and compete over a common issue (i.e., the balance between the restrictions and the protections of global investments). In the global investment regime, their operations stipulate the operations of others. But, all relevant actors operate according to their different rationalities so that actors are often involved in conflict in regards to regulatory power and property protection. Such conflicts carry the risk of total paralysis of the entire global investment field, in which anyone cannot put down other actors permanently under its own rationality. In order to avoid such disastrous results, global actors gradually form a common ground, the Global investment regime, in which they compete or cooperate based on some degree of expectation for their own interests (e.g. property protection, political controllability or social justice). However, it is true that the global investment regime become more fragile with increased regime complexity. Finally, the Global investment regime requires the function of GIL to stabilise normative expectations, by setting up two elements of global law: openness of participation mechanism and autopoietic structuralisation and operations of dispute settlement. This participation mechanism makes the normative expectations reflective to various values of the nation-state, investors and other social actors. In addition, such original expectations could be secured by independent dispute settlement which can make disappointment of expectation illegal. Finally, this mechanism allows the global investment regime members to expect what actions will be clearly allowed or prevented in the future. This paper articulates that the current development of international investment law achieves some degree of autpoiesis in the sense that the some evidences of two elements could be found. However, current legal system has merely crossed the line between the law and just a social norm, and it remains to be seen whether this system will develop into a more mature type of legal system. The reason is that those elements do not seem to develop fully. At this point, one could find direction for reformation of the current international investment law.