재판의 거부와 국내구제수단완료의 원칙

Under traditional international law, the local remedies rule was applied as an absolute rule. However, under modern international law, the local remedies rule is quite often excluded. The typical area where such local remedies rule has been excluded is the area of international investment arbitration. Still, there is a question of whether local remedies must have been exhausted at least when applying denial of justice, which forms one of the principles of fair and equitable treatment. This is because denial of justice means the refusal of a state to grant an investor access to its courts or a failure of a court to pronounce a judgment. The Loewen v United States case confirmed that the local remedies requirement ought to be satisfied where the investor claimed denial of justice. However, since it is the main spirit of international investment dispute that the local remedies rule should be excluded, there is scathing criticism to the Loewen v United States award. Such critics assert that where the investor claims denial of justice, the local remedies requirement should not act as an actual requirement. The international investment arbitration tribunal has not yet overruled the principle that the local remedies requirement ought to be satisfied where the investor claims denial of justice. However, in the Saipem v Bangladesh case and the Chevron v Ecuador case, the tribunal respectively applied standards on judicial expropriation and set forth a requirement to provide effective means of asserting claims and enforcing rights, in order to circumvent the local remedies requirement set forth in Loewen v United States. The above 3 awards are all based on the same issue, which is the judgement of the national court, and therefore, the international investment arbitration tribunal has rather been issuing varying decisions when judging the rulings of national courts. Such rulings of the international investment arbitration tribunal may be desirable in that the rulings give an impression that the tribunal protects the rights of individual investors and promote international investment dispute, but such arbitrary rulings confuse the international investors and in the long run, would discourage international investment. Since the principle that the local remedies requirement ought to be satisfied where the investor claimed denial of justice is in fact been disused in cases such as Saipem v Bangladesh case and Chevron v Ecuador case, there is no need to maintain the local remedies requirement which may only confuse the international investors.