조약청구⋅계약청구의 구분과 국제투자중재

As the importance of foreign investment as a stimulus for the economy increases, host states are avidly introducing policies encouraging foreign investment into their territories. One such policy is the conclusion of international investment agreements (hereinafter IIAs) between two or more states. These IIAs, which are instruments of international law, provide for a framework that include obligations of the state parties to provide protection to investors of the other state party and an arbitration procedure to settle disputes between the investors and the state party. Investment contracts, especially those concluded between the foreign investor and the host state or state enterprise are also entitled to the protection of these IIAs and its dispute settlement forum. The contracts themselves embody the rights and obligations of the contractual parties, and issues arise when the foreign investor argues that a breach of contract by the host state amounts to a violation of the IIA. This is because, as a rule, investment contracts are governed by the national law of the host state and disputes regarding the contracts are under the jurisdiction of the host state’s national courts. Allowing foreign investors to bring their contract-related disputes to investment treaty arbitration seems to give foreign investors the opportunity to bypass the jurisdiction of the host state. Investment arbitration tribunals were aware of such possibility when confronted with contract-related disputes. They employed a two-tier test to filter the claims of breach of contract (hereinafter contract claims) from the claims of violation of the IIA (hereinafter treaty claims). The first step to this process is called the simplified triple identity test; Tribunals saw that it was sufficient for jurisdictional purposes that the legal bases of the contract claims and treaty claims were different. The simplified triple identity test was particularly useful in finding whether the forum selection clause of the IIA has been triggered by a contract claim pending in the national courts of the host state. The second step, the sovereign act test, was employed at the merits phase. Tribunals took a closer look at the act alleged to violate the IIA to determine its character. While reviewing claims of fair and equitable treatment and expropriation, tribunals determined whether the host state’s act (or the act of the state enterprise attributed to the host state) had an element of sovereignty, or in other words, was an act that no ordinary contracting party could do. In the situation where the foreign investor claims the violation of the umbrella clause, however, the above two-tier test has to be employed in a different manner. While the nature of these clauses are still in debate, umbrella clauses claims should be seen as treaty claims that are substantially contract claims. Therefore, given their nature as contract claims, contract claims pending in the national courts of the host state should be seen as triggering the forum selection clause of the IIA. In addition, to find a violation of the umbrella clause, tribunals must first identify whether the host state’s act is commercial, not sovereign. This method of interpretation gives new meaning to the otherwise superfluous forum selection clause and umbrella clause and efficiently distinguishes contract claims from treaty claims.