해외건설 국제투자분쟁 사례 연구

Recently, a growing number of Korean construction companies have made inroads into emerging economies where large-scale SOC projects have been actively underway in line with the opening of the construction market and economic development. In particular, it is expanding its scope from simple construction to EPC and investment development projects. On the other hand, our companies are exposed to more risks and disputes due to worsening business conditions abroad and the delay and cancellation of project orders due to low oil prices. Amid the growing possibility of such overseas construction disputes, there have been growing cases of Korean companies conducting legal procedures, including international commercial arbitration, against the Middle Eastern countries. Through international commercial arbitration, the company strives to prevent losses caused by unfair breach of contract by local owners, including unilateral termination of contract and demand for delayed compensation. In addition, the number of cases involving investor-state dispute settlement (ISDS) that seek compensation for illegal actions or regulations by host countries has increased significantly. In particular, disputes related to construction projects were raised by ISDS between foreign investors and investment attraction countries in connection with BOT and BTL projects that were actively implemented as private investment projects after the 2000s. As construction companies have begun to actively utilize ISDS in disputes with the owners, ISDS has now become recognized as a safety device that builders can use very useful in overseas construction. However, it may be a little burdensome for our construction company to raise ISDS against the host country, due to difficulties in obtaining additional orders in the region in the future and high legal costs. Therefore, it is very important to analyze the possibility of raising disputes and the possibility of winning through previous cases of investment decisions, and to prepare strategies to respond to unfair practices in the host country. First, in order to help domestic investors advance overseas, the U.S. and other capital advanced countries revised their model BIT through thorough analysis of their investment decisions, and developed international legal arguments that can be used from the perspective of investors. Therefore, the Korean government should also make efforts to provide a basis for protecting our construction companies such as BIT, which will be signed or revised in the future. In addition, our construction companies should check if the country and the nation have an investment treaty when advancing overseas, check the definition and scope of investment and investors stipulated in the investment treaty, and review specific investor protection clauses in the investment treaty. In other words, it is necessary to prepare for legal action by analyzing what actions of the owner country caused the investment arbitration and what requirements are required to raise the investment arbitration. These efforts should ensure that our construction companies do not suffer heavy losses from unfair practices by the host country in the overseas construction market.