중소기업 업종보호법제와 투자자-국가 중재(ISD중재)

The law on the designation of the business sectors for the small business owner, which is anticipated to be enforced recently, has a legal measures to impose compulsory performance fee or penalty to the large companies that violated it. As large companies may include foreign investors, there is a possibility that foreign investors may raise ISD arbitration on the grounds that they have suffered damages from the government measures on the restriction of business sectors. In order to prevent such risks, it would be better to design and operate the related system for small businesses by autonomous agreements or recommendations. It has been pointed out that the ISD arbitration has the problem of overly restricting the sovereign measures for the public interest of the host states. Nevertheless, unless the investment treaties are revised, it would be better to minimize that risks on the current investment treaties. As a countermeasure, it is important to make every efforts to ensure that the government measures should have the procedural adequacy and compliance with the due process principles, the protection of reasonable and legitimate expectations of foreign investors, predictability, stability and transparency. And, as stipulated in the minimum standard of treatment(Article 11.5) and the Annex 11-B of the Korea-US FTA, it is necessary to revise the existing investment treaties in a way that explicitly adds that the government’s measures in accordance with the needs of the public interests are not in breach of the duties of host state such as indirect appropriation or minimum standard treatments for investors under the international customary law.