이란 다야니 일가와 한국 정부간 투자자국가분쟁(ISD) 사건에 대한 고찰

In December 2019, the High Court of Justice Business and Property of England and Wales Commercial Court rejected the application of the Republic of Korea to overturn the Awards rendered by the Tribunal constituted under the auspices of the Permanent Court of Arbitration in the Dayyani v. Korea. In this case, the Dayyanis had argued that: the Korean government breached the fair and equitable treatment (FET) obligation under the Korea-Iran Bilateral Investment Treaty (BIT) in respect of the acquirement of Daewoo Electornics (DE). Both the Korean government and the Dayyani did not dispute the facts: the Share and Claim Purchase Agreement (SPA) was concluded between the Korean Sellers (including KAMCO) and D&A which was incorporated in Singapore by the Dayyanis with the sole purpose of acquiring DE; KAMCO refused to return the contract deposit (approximately US $ 50 million) paid by D&A after terminating SPA; and the contract deposit was forfeited by the Sellers. The Korean government mainly defended that the arbitration tribunal lacked jurisdiction for the reason that the case was merely a commercial dispute, not amount to investment dispute under the Korea-Iran BIT. According to the Court’s decision, the Dayyani had“standing”under the Korea-Iran BIT to claim in respect of SPA and the contract deposit; there was a breach of the FET standard by KAMCO’s objection to the return the contract deposit; the acts of KAMCO and/or the Sellers were attributable to the Korean government; and the Korean government separately breached the FET obligation by failing to intervene to compel the return of the contract deposit. On the other hand, the Korean government decided to disclose the arbitration award for the reason of confidential agreement with the Dayyani. This decision is hardly understandable because it does not seem that all parts of the award contain the Dayyanis’ businesses secret.