조약상 의무 이행과 사법부― 대법원 강제동원 판결에 대한 한일 투자협정의 적용 가능성 ―

The obligations set forth in the BITs apply to all elements of governments of contracting parties. In that regard, naturally they also apply to the judiciary of the contracting parties. The obligations contained in the BITs are no exception. Recent discussions and decisions of the ISDS proceedings clarify this principle. There are two routes through which the obligations of the BITs apply to the measures adopted by the judiciary. The first route is through specific provisions designed to address court proceedings and decisions, namely provisions relating to fair and equitable treatment, full protection and security, denial of justice, and effective means of asserting rights. These provisions are implicated when the judiciary conducts judicial proceedings and reach conclusions in a way that seriously undermines the basic principle of due process or otherwise disregard laws applicable to the judicial proceedings, triggered by “bad faith” toward the foreign investors at issue. This is a quite high threshold to be satisfied. The other route to be applied to the judiciary is through general provisions of the BITs such as the NT, MFN or Expropriation provisions. This is the situation where the judiciary itself becomes a governmental agency that issues and enforces a governmental measure for the purpose of BITs that directly affects the foreign investment or investors. Here also, the ISDS tribunal seems to be quite cautious in applying these provisions to the decisions and judgments of the courts. Whether or not illegality is somehow involved including possible violation of relevant international agreements is contemplated by the tribunal in this regard. This issue of BITs as explained above is being raised at the moment with respect to the Korea Supreme Court’s judgment in May 2012 concerning compensation for the victims of forced labor during the Japanese colonial occupation. While this issue is fundamentally a diplomatic and political issue, a possibility is being floated at present that Japanese corporations involved in the Supreme Court decisions may attempt to utilize the ISDS proceeding contained in the 2003 Korea-Japan BIT. How this potential dispute will fare is not entirely clear at the moment, but the recent decisions and discussions of the ISDS tribunals shed helpful lights in this regard. In any event this development also indicates the wide scope of the application of the BITs. It also evidences the political sensitivities associated with the investment disputes. All these issues need to be scrutinized carefully in negotiating and implementing BITs in the future.