Back on the Negotiating Table Again? - Recalibrating Provisions of the Korea - U.S. FTA ISDS Proceedings through a Prospective ‘Amendment’ -

As promised, the Korean government is now considering seeking to re-discuss or re-negotiate the investment chapter of the Korea-U.S. FTA as early as in 2014. Once the re-discussion is initiated, the focus will be placed on provisions relating to the ISDS proceedings of the FTA. Specific schedules and parameters of such discussions or negotiations are yet to be determined, but in order to avoid repeating the same politicized domestic controversies again and to ensure improvement of the relevant provisions, some of the key outstanding issues need to be examined and analyzed carefully in advance based on the recent development of jurisprudence and discussions in other international forums. Indeed, if the two countries can use the opportunity as an occasion to clarify and fine-tune some of the key provisions of the ISDS proceedings, they may be able to establish workable and reliable proceedings of investment arbitrations between the two countries in the future. As has been widely observed in recent investment disputes, it is critical to have treaty texts as clearly drafted as possible so as to avoid unnecessary future disputes. The prospective re-discussion or re-negotiation under the Korea-U.S. FTA will help achieve this crucial objective, if properly conducted. At the same time, Korea’s response to these challenges will offer a useful platform and guidelines for other countries who encounter similar problems in this area, either at the FTA/BIT negotiating tables or at ISDS proceedings.