국제투자계약의 안정화 조항에 관한 고찰

The State Contract is a long term contract related to investment for resource or economic development. National contract is that One of contract parties becomes a nation or a public enterprise, and concession contract is that one authorizes exclusive permission or authorization for the object of a contract to investors. International Investment can be exposed to expropriation according to political objects or national public interests. For an instance, in case of amending governing law in the time of concluding the contract or enacting the new law, the contract can be influenced. In this case, shrinkage of investment or frustration of one itself may be confronted by the results. Thus, the parties, for the non-commercial risk aversion like national regulations, enact stabilization clauses to ones’ contract. The purposes of stabilization clauses ask the agreement of investors for thee nationalization prevention and the contract adjustment effecting investment of host country. For promising the stabilization in domestic law, Legal stabilization clauses are general. Recently, the stabilization clauses are changing to host country taxation and the form of investment protection by amendments of environmental and other regulations. In other words, financial matters includes non-financial matters like environment and labor. The formality of stabilization clauses develops from conventional freezing clauses to economic equilibrium clauses. Particularly noteworthy is the economic equilibrium clause of a representative type of the stabilization clauses. This contains the damage compensating by the new law application. The economic equilibrium clause allows a host country to amend provisions of the contract, but, to maintain the economic status of investors, it contains compensations through renegotiation/adaptation clause of the contract. The economic equilibrium clause, compared to the freezing clause, has firm salvation remedies. This is a new approach in a regard of including renegotiation not limiting legislative power. The economic equilibrium clause causes problems between investment protection and realization of profit and sovereignty of state in legislation. Accordingly, The legitimacy of the economic equilibrium clause can be disputable, so that resolution of a dispute settlement body is necessary. The effectiveness of the economic equilibrium clause by ISD Arbitration gets settled in leading precedents. In case of ISD Arbitration resolveing, in national contract, whether it directly is legitimate, the economic equilibrium clause, itself, is on the hearing. As the economic equilibrium clause becames IIA Arbitration, the problem is which application ground provisions are. The Argentina ISD precedent caused by economic crisis is adjudicated by applying the Umbrella Clause. The act of a nation is judged by whether it violates the economic equilibrium clause based on Umbrella Clause of IIA. ISD Arbitration tries to minimize the range of applying the economic equilibrium clause by restrictive Interpretation of the protection range of the umbrella clause. This is because, first, when violation of contract by IIA umbrella clause becomes IIA violation, other regulations of IIA come to futility, second, in simple commercial contract, investors can enact commercial arbitration so that there is no need to ask for IIA arbitration, and, third, extensively interpreting the umbrella clause results in investors utilizing the umbrella clause in trivial dispute. The supremacy of state is not unlimited, and realization of civil rights based on duty of international law and observance duty on environmental protection are international principle. The economic equilibrium clause is restricted as compliance with international law. The economic equilibrium clause does not limit nations of public interests. The purpose of the economic equilibrium clause is to burden the damage by amending governing laws. Host country will regulate to investment of foreign. It is not a violation of international law. The host country act not on international code as the economic equilibrium clause but on not regulating because of indemnification.