ICSID협약의 준거법에 관한 고찰

Tribunal Award in ISD Arbitration, during hearing process, can be shown differently by the legal application. This is caused by the problem of the application law. A Investor can be influenced by the amendment of domestic law in investment by the state contract among host countries. Accordingly, stabilization clauses are regulated in the autotelic national contracts, making the responsibility problem of the nation itself by concluding BIT. In case of amending domestic law and ISD choosing local remedy, the court would adopt the amended domestic law as the governing one. In above case, the host country, through amending domestic law, regulates investors as one pleases. Not regulating the governing law is plenty at IIA. ICSID, Convention on the Settlement of Investment Disputes Between States and Nationals of Other States, enacts the provision of the governing law. In the Article 42 at ICSID, (1) The Tribunal shall decide a dispute in accordance with such rules of law as may be agreed bythe parties. In the absence of such agreement, the Tribunal shall apply the alw of the Contracting State party to the dispute (including its rules of the conflict of laws) and such rules of international law as may be applicable. (2) The Tribunal may not bring in a finding of non liquet on the ground of silence of obscurity of the law. (3) The provisions of paragraphs (1) and (2) shall not prejudice the power of the Tribunal to decide a dispute ex aequo et bono if the parties so agree. In the case of agreement by the parties in Article42(1), First Sentence, the issue of law is not significant. However, in Article 42(1), Second Sentence), the standard of prior application, domestic law or international law, is not set, nor is the range clear. At Klockner v. Cameroon(KlocknerI) Decision on annulment, Ad hoc committee, in case on lacuna domestic law, for complementary, refer to the application of international one. Also, for domestic law not according with the principle of international one, international law performs as a corrective of domestic one. In case of Wena v. Egypt, Ad hoc committee did not have any consensus on the position of international law in Article 42(1), Second Sentence. The committee said that there were no applicable range on the domestic and international law. International law can be applicable solely or in conjunction with domestic law. The case of Wena v. Egypt became leading precedent of direct application of international law. The application principle of the established precedent by the case of Wena v. Egypt is based on BIT concluded by the parties. In relation to the range of application of international law, successive application of BIT directly applied by disputing parties, the customary international law, the principle of international law can be estimated not to have any problems. This is the established precedent of ISD Arbitration and shown to be correct on definition of ICSID Article 42.