엘리엇·한국정부 간 투자중재에 관한 연구: TRS거래관련 쟁점을 중심으로

ISD against the Korean government has been raised one after another. Global attention is being focused on the merger between Samsung C&T and Cheil Industries, which is Elliott ISD's claim. Several issues should be reviewed in relation to the Elliott ISD, this study specifically focused on the Total Return Swap (TRS) contract signed by Elliott while acquiring a stake in Samsung C&T. The purpose of this study is to develop a response logic that can deny protection under the KOREA-US FTA based on the fact that Elliott's investment is illegal or contrary to the principle of good faith, which is a general principle under international law. As the use of the TRS contract has recently increased in Korea, there seems to be no established precedent or theory on whether it is an investment under international law. This discussion was the first to take place with the ISD that Elliott raised against the Korean government. This study deals with two main things. First, it has been established in the field of international investment arbitration that only legitimate investment is the object of protection. If Elliott violates the actual laws of Korea, there is a possibility that the eligibility for investment will be fundamentally denied due to the illegality of the Elliott investment transaction. This was reviewed. Second, the Elliott TRS transaction does not meet the term and territorial requirements, and has the characteristic that the inherent characteristics of investment are also absent. For this reason, it seems that it is possible to develop the logic that the substantive protection regulations cannot be applied because the investment is not in accordance with the new rules of conduct. It is hoped that the results of this study will contribute to the development of the Korean government's defense logic at the present time when the ISD against the Korean government is raised one after another.