한국이 당사자인 ISDS 사례의 개정 한ㆍ미 FTA 「투자자와 국가간 분쟁해결제도」(ISDS)에의 시사점과 향후 대응방향

In this article, I will draw some implications for the provisions of the Investor-State Dispute Settlement (ISDS) of the revised KORUS FTA from the ISDS cases to which the Republic of Korea (hereinafter referred to as “ROK”) is party and take a look at the future challenges of the ROK. ISDS is a system for seeking arbitration or dispute resolution by a third party other than a relief by a domestic court of an investment host country when a company which invested in a foreign country is injured by unlawful or unreasonable measures of the host country. According to the UNCTAD source, worldwide ISDS claims are 855 (as of 2017) and US ISDS claims are 166 (as of the first half of 2018). At the time of the incorporation of the ISDS into the KORUS FTA text were there two positions in conflict. In view of the inevitable and unavoidable adoption of the ISDS in relation to the United States, it was said that the ISDS was considered a system to resolve investment disputes in a neutral way and that US companies had a relatively low success rate. On the other hand, those who view the introduction of the ISDS negatively in relation to the US argued that the ISDS was advantageous for only US investors and corporations, can be a real threat to Korea's public policy, and can lead to the loss of sovereignty. After the KORUS FTA entered into force, the ISDS case which the claimed country is the ROK and the applicant's nationality is ROK has begun to appear. As of November 2018, there are six cases in which ROK was claimed against (one additional ISDS claim imminent), and five cases in which the applicants are Korean. Recently, the amendment of the Korea-US FTA ISDS is expected to prevent foreign investors' investment in Korean companies from shopping for a more advantageous investment treaty. Secondly, the revised KORUS FTA recognized certain contribution as pre-investment only when there is a specific and concrete investment activity, not the investment plan to Korea. Thirdly, the mere fact that the Government’s act is inconsistent with the investor's expectations is not a violation of the minimum standard of treatment. Fourthly, the principle on evidence was reconfirmed in the revised KORUS FTA that the burden of proof about elements of a claim which foreign investors submit is definitely on the side of investors. Fifthly, there is a positive effect that the KORUS FTA has banned the use of the most-favored-nation treatment clause to take advantage of other international investment dispute resolution procedures or mechanisms. In addition, the KORUS FTA Joint Committee will be able to further improve the investment chapter as a result of the amendment of the KORUS FTA. In order for the revised KORUS FTA ISDS to have a positive effect, it is necessary to: ① revise the other BIT ISDS reflecting the advanced elements of the KORUS FTA ISDS; ② monitor the international discussion trends in the ICSID and UNCITRAL to deter the filing of frivolous claims by foreign investors; ③ make every effort to close disputes through negotiations even after the initiation of the ISDS; ④ educate and train experts who will be arbitrators or legal defenders in preparation for future ISDS cases, and ⑤ select and concentrate on the industry sectors with high incident rate of ISDS.