ICSID 중재판정의 집행(enforcement)에 관한 연구

Arbitration is widely used beyond simple International Commercial Arbitration areas to the realm of Investor-State Dispute. Notably, 『Convention on the Settlement of Investment Disputes between States and Nationals of Other States (hereinafter ‘ICSID Convention’)』 has been most frequently used as the legal basis for the Investor-State Disputes. There are several reasons why the ICSID Convention is so popular but one of them must be the establishment of forward-looking post-Award process such as unconditional recognition and enforcement for ICSID award and treatment of a pecuniary award as a domestic final judgment. However, despite the above streamlined efforts of the ICSID Convention, the winning investor faces a few difficulties in practice where the losing country refuses to voluntarily implement the ICSID award. Unclear procedure for recognizing and enforcing the award is one of those hardships needless to mention the huge obstacle of sovereign immunity in execution state. This is due to the fact that each Contracting State has operated the procedure in various ways pursuant to its own domestic law and practice with very few accumulated cases. In this regard, recent trends in major countries in terms of the enforcement of the ICSID award are meaningful. Particularly, German legislation trying to reduce the scope of the unclear interpretation of the ICSID Convention by treating not only a pecuniary award but also a non-pecuniary award as a judgment should be noted. Additionally, recent cases of the U.S. Court of Appeals for the Second Circuit restricting ex parte action to be applied in enforcing the ICSID award should get attention as well. Those trends cannot be applied to South Korea as they are because South Korea does not legislate separate enabling statute for the ICSID Convention and nor does it have any foreign sovereign immunity act. However, it is desirable to take a plenary action-type proceeding in order to offer the respondent country a chance of participating in the enforcement proceeding based on the comity of nations. Specifically, Korean court can achieve its purpose by notifying the process of the opponent country and holding a hearing whenever possible in the enforcement proceeding. Lastly, from a long-term point of view, establishing an enabling statute on the ICSID Convention is necessary to clarify the relationship it with other Korean domestic laws, such as the Civil Enforcement Act, the Civil Procedure Act and the Arbitration Act. Enacting a sort of foreign sovereign immunity act would be also very helpful to make it the legal status of foreign countries in the proceedings clear.