투자자 중재에 있어서 중재합의 방식에 관한 검토

The investment disputes between a host State and a foreign investor may be resolve through a direct agreement to arbitration between the parties, or consent through host State national investment legislation or investment treaty. The arbitration clause contained in an investment law or a treaty means the offer by a host State to consent to arbitrate the investment disputes. When a disputing investor may accept the host State’s offer to arbitration, the arbitration agreement between the host State and the investor will be reached. If an arbitration clause due to its unequivocal consent to arbitration is not constituting actual binding offer by the host State, the host State has still to make an offer of arbitration before the investor can express its acceptance. It is desirable that the expression of consent by a host State may be contained in the arbitration clause as Article 1122 of NAFTA. It may be restrictive that contractual claims would be resolved by the umbrella clauses contained in a treaty for the principle of party autonomy or pacta sunt servanda. And an arbitral tribunal may have an jurisdiction to a counterclaim by the respondent host State to the claimant investor without its consent to the counterclaim.