Exxon Mobil ICSID 중재 사건의 분석

This article addresses important issues in ExxonMobil v. Venezuela with respect to ICSID tribunal’s decision on jurisdiction and award. ExxonMobil, which holds a great number of mining rights and resources around the world, participated in unconventional oil production through subsidiaries in Orinoco Oil belt. Venezuela took several national measures and directly expropriated ExxonMobil’s assets because ExxonMobil refused to accept new terms for the Orinoco projects. Accordingly, ExxonMobil filed a request for arbitration with the ICSID in regard to compensation from Venezuela for the expropriation of their assets under the Netherlands-Venezuela BIT. The ICSID tribunal decided that corporate restructuring to gain access to ICSID arbitration through the BIT is a perfectly legitimate goal as regards future disputes; therefore, it had jurisdiction over the claims born after the dates of the restructuring of investments in Venezuela through a Dutch holding. The ICSID tribunal also found that expropriation was lawful because national measures are taken in the public interest, under due process of law, and non-discriminatory; therefore, “just compensation” should be paid to the claimants on the basis of market value of the investments as required by Article 6 of the Netherlands-Venezuela BIT. The ICSID tribunal awarded ExxonMobil over US $1.6 billion in damages. In this study, I first summarize and examine the background of the case, ICC arbitration, nationalization measures, jurisdiction, expropriation, and award. Further, I explore important legal issues in practice with respect to overseas resources development.