WTO 분쟁해결 제도와 투자자-국가 중재 제도의 조화: 담배 상표 및 포장규제를 중심으로

The WTO DSB is a state-state dispute resolution system that determines whether a member state violate WTO agreements, namely international law, and recommends corrective measures regarding such violation. Therefore, private investors can not be a party to the WTO DSB. On the other hand, the international investor-state arbitration is a kind of private law dispute settlement system, which initiated by the investor determines whether the investment host state violate country the investment agreement or investment contract. As a remedy system for investor, the WTO DSB and investor-state arbitration might be complementary in purpose and function. Remedies for investors provided by investor-state arbitration are primarily compensation for damages and remedies in the WTO DSB are the withdrawal or amendment of Member State measures that violate the WTO Agreements. Because the actions of the Member State that violate the WTO Agreement cause damages to investor and the withdrawal or amendment of the measures according to recommendation issued by the WTO DSB could prevent future damages, investors are trying to rely on the two systems both to get proper remedy. Through various channels, the state-investor arbitration tribunal is able to interpret and apply WTO agreements, in particular TRIPs agreements, to show the possibility of making decisions other than those of the WTO DSB. The comparison of the investor-state arbitration award and the WTO panel report on the violation of the WTO TRIPs Agreement by tobacco trademark and packaging regulations reveals duplication of jurisdiction over whether to violate the Agreement. The possibility of overlap between the jurisdictions of the two systems and the application norms implies that each system may render different factual and legal judgments on the same issue, which implies a possibility of conflict of judgment. If the violation of the WTO agreement by the host country could be heard in the investor-state arbitration, the investor will first rely on the investor-state arbitration as a party rather than asking the national government to file a complaint with the WTO. If the investor loses the arbitration afterwards, it will push forward the WTO filing method again. Despite these overlapping situations, the international community has not yet established international norms that demarcate jurisdiction between investor-state arbitration and the WTO DSB, and no measures have been taken to prevent conflicts of opinion in both systems. Conflicts of these judgments could bring the negative effect such as spilt of international law or legal instability. Both systems should be harmonized to eliminate these negative effects. The direction of harmonizing the WTO DSB with the investor-state arbitration system is to reduce the inefficiencies arising from the overlapping of jurisdictions and the possibility of conflict of judgment, and to increase the effectiveness of both systems as dispute resolution or remedies complementary to each other in function and purpose. Each function of both systems should be exercised sufficiently. In short, the direction of reasonable harmonization is to establish mutual cooperation while clarifying the roles and functions of two systems as follows. First, in accordance with the principle of interpretation of the treaty law, any dispute resolution body should consider the decisions made by other dispute resolution agencies with the context in interpreting article of a treaty as an authoritative expression in international law. Considering expertise, the WTO DSB report could be a major reference for the interpretation of the WTO agreement. On the other hand, investor-state arbitration award could be a good reference for interpretation of investment treaties or investment-related measures. States should clearly define the dispute resolution provisions when they are concluding a BIT. In particular, the contents and scope of the umbrella provisions of the BIT, including whether or not the WTO Agreement is being reviewed, should be clarified. To this end, an authoritative investor-state arbitration institutions such as ICSID needs continuously to develop and provide a Model BIT which clarifies the dispute settlement clause and the umbrella clause. In order to rule out the possibility of conflict of judgment before the decision, it is necessary to establish cooperative relations between WTO and investors-state arbitration institutions such as ICSID. To secure constant interpretation of the WTO agreements, investor-state arbitral tribunal may ask the WTO specific agreement committee or the DSB an advisory opinion on the applicability on the disputed issues and on the interpretation. Through the advisory opinion system, the WTO DSB may also use the facts found in the arbitration hearing procedure or the facts recognized in the arbitration award as a very important reference if an investor-state arbitration was awarded to the same factual case before being filed with the WTO.