ICSID 중재 제도의 개혁 방향

This article reviews current problems of ICSID arbitration system, typical international investor-state disputes settlement mechanism, and tries to provide reasonable direction of reformation and improvement of the ICSID arbitration system. The most ideal ICSID arbitration would be investor-state disputes settlement mechanism securing and reinforcing the fairness for system of investor relief which is the purpose of ICSID Convention. Also, the ideal system would maximize benefits of general commercial arbitration such as effectiveness through swiftness, cost effectiveness, the professionalism of the arbitrators concerning the specific investment area, confidentialness, while minimize its weakness like short information resulted from simple examination of evidence for disputed subject, uncertainty or inaccuracy of judgement. Under the present situation, ICSID arbitration system would be reformed to unify and clarify the criteria of ICSID arbitration jurisdiction, improve procedural transparency, strengthen the expertise and prevent the judgement of error by way of reinforcing fact finding function including examination of evidence, rather than radical method like creating and building global organization like WIO and its court. Very various types of contents and standards in BIT or FTA provisions as the accent to the jurisdiction of ICSID arbitration should be defined clearly in unified manner. So, it is recommendable to adopt a tentatively named “Protocol of ICSID convention for ICSID arbitration jurisdiction” to clarify the various and complicated standards of the jurisdiction of ICSID arbitration and to prevent a multinational corporation from “BIT Shopping”. ICSID Convention provides that “A Contracting State may require the exhaustion of local administrative or judicial remedies as a condition of its consent to arbitration under this Convention.” So certain kind of domestic remedy system could be designed in BIT or the other international document as the condition for consent to ICSID arbitration. Such a domestic remedy system would be working as self-examination, self-reviewing, and self-correcting mechanism. For example automotive lemon law arbitration in the United State, namely informal dispute settlement procedure, would be the model for the domestic remedy system. Like the condition of exhaustion of such a local remedy system would be included in BIT in the short term and included in “Protocol of ICSID convention for ICSID arbitration jurisdiction” in the long term.