미국의 국가안보를 이유로 한 외국인투자제한의 법률적 검토- Ralls Case를 중심으로-

The Legal Analysis of the US Review System of Foreign Investment For National Security Concerns –Focusing on Ralls Case- On August 13, 2018, the U.S. Government has a new review system of foreign investment by amending the related law. The new law, so called FIRRMA(Foreign Investment Risk Review Modernization Act), which amended previous FINSA(Foreign Investment and National Security Act of 2007), strengthened the role and function of CFIUS (The Committee on Foreign Investment in the United States). Above all, FIRRMA is known to cover practically all the cases with respect to foreign investment which could have a critical impact on the national security of the United States. In particular, rapidly increasing Chinese investment into the United States for the last couple of years caused the U.S. government to pay special attention to such investment. Ralls case was the first case where the US court adjudicated the claims of foreign owned US company. In Ralls v. CFIUS, the Court of Appeals, D.C. Circuit, determined that CFIUS and the US President have deprived of Ralls rights under Due Process Clause under the US Constitution. The Court found that CFIUS and the US President have violated the Fifth Amendment of the US Constitution, which can never be limited by any decision of the Administration or the Congress, by not providing adequate evidence to the Plaintiff for such decision. Ralls case was the first case in terms of not only determining that the decisions of CFIUS and the President would be subject to judicial review, but also finding that even a foreign investor would have a right under the Due Process of the U.S Constitution if the foreign investor has legitimate rights under the relevant state laws. As a result of Ralls case, newly amended FIRRMA adopted a new rule establishing an exclusive jurisdiction of DC Circuit, Court of Appeals, in CFIUS cases. Further, necessary evidence in resolving a certain CFIUS case can be produced only ex parte and in camera to the court. A new US review system is generally considered not to be a violation of GATT Article XXI because such national security concerns would be subject to member countries’ discretion. On the other hand, such national security considerations of each member country can be deleted or limited by bilateral agreement. Korea has several laws regulating foreign investment into Korea, which include the Law on the Promotion of Foreign Investment, the Law for Industrial Technology Outflow Prevention, and the Law on Monopoly Regulation and Fair Trade, etc. Considering recent trend with respect to the global foreign investment, Korea may need a new review system of foreign investment in light of recent national security concerns. Among others, establishing a new Committee on Foreign Investment Risk Review within the Korean Government seems to be necessary.