국제투자규범에서 국가안보에 대한 규제

A host country regulates M&A-type investment by foreigners for national security. This case is called Review System of National Security. This review system is based on domestic law. Foreign Investment and National Security Act of the USA is a good example. This system has been most actively applied in the USA, Australia, and Germany. In China, M&A across borders has been main target of regulation due to Chinese policy of foreign investment. China also plans to execute Review System of National Security through legislation. Focus of national security has been mainly on defense and protection of core technologies of a nation. However, it has been recently extended unlimitedly into environment, labor, food, purchase of real asset, and so on. Thus, regulation of foreigners’ investment for national safety more likely to function as a protection mechanism for core technologies of domestic industry and the right of management. There is high possibility that the target of the review of national security is expanded from M&A-type investment into green field investment. This trend is witnessed in the USA in the legislation of Foreign Investment Risk Review Modernization Act, 2017 (FIRRMA) that strengthens the power of Committee on Foreign Investment in the United States(CFIUS). The origin of Review System of National Security is as the follows. First, excluding the review of national security from the coverage of IIA (International Investment Agreement). Second, the article of General Treaty Exception in IIA. Third, the article of Essential Security Interests in IIA. Review System of National Security has been applied as the execution of national sovereign power based on IIA. However, it could be covered by IIA/ISDS since it is possible to review national security through the whole process of M&A-type investment. Investor can voluntarily apply for the review process to avoid uncertainty of M&A-type investment. Completed M&A-type investment can be cancelled through the review of national security. This case can have the same effect as the restoration of M&A-type investment or transfer of business. This means that Review System of National Security can have retroactive effects. Because completed M&A-type investment is already established in host county, the established one should be protected by local law. For Ralls Corp. v. CFIUS case in the USA, US Court of Appeals judged violation of due process of law and deprive of property rights according to deprive of property rights. This case can be a violation of Fair & Equitable Treatment, Expropriation and National Treatment in IIA. Korean Review System of National Security is based on Act of Foreigner Investment Promotion and Act on Prevention of Divulgence and Protection of Industrial Technology. The issues of a single legislation, range of national security, transparency of process still remain as main concern. Of course, no Review System of National Security has been applied in Korea. However, these issues should be complemented as we expect to witness increasing number of M&A-type investment on Korean companies in coming years.