국제투자분쟁에서 비례성원칙의 적용에 관한 연구

Recently, the investment measures for the public interest purposes, such as environmental, health are a factor causing a number of international investment disputes. An important issue in these matters is on compliance with the principle of proportion between public interest realized by the restrictions on investment and an infringement on investor. The principle of proportionality consists of three sub-principles: the principle of appropriateness, the principle of necessity, the principle of proportionality in a narrow sense. The Arbitral Tribunal of ISD, while deciding whether a FTA, BIT Member’s investment measure is necessary, have been used the proportionality analysis. The Arbitral Tribunal considered, in order to determine if they are to be characterized as expropriatory, whether such actions or measures are proportional to the public interest presumably protected thereby and to the protection legally granted to investments, taking into account that the significance of such impact has a key role upon deciding the proportionality. The Arbitral Tribunal determine whether such measures are reasonable with respect to their goals, the deprivation of economic rights and the legitimate expectations of who suffered such deprivation. There must be a reasonable relationship of proportionality between the charge or weight imposed to the foreign investor and the aim sought to be realized by any expropriatory measure