투자자-국가분쟁해결제도(ISDS)의 현황･쟁점 및 국내 공법 체계에 대한 영향

With the recent economic globalization, ISDS proceedings became a remarkably universal phenomenon. In Korea, since Lone Star Fund filed an ISDS claim against the Republic of Korea in 2012, the Dayyani case and the Elliott/Mason cases have attracted public attention. An ISDS claim is filed on the basis of international investment treaties such as FTA and BIT, which prescribe various standards that can restrict domestic regulations. Because ISDS proceedings are normally brought in the form of international arbitration, the principles of common law jurisdictions apply to the proceedings. In addition, the notion of claimant (“investor”) and respondent (“State”) has been broadly construed under such standards. These characteristics of ISDS can have a significant impact on the system of public/administrative law in Korea. In the realm of public/administrative law in Korea, international norms and dispute settlement procedures have not been sufficiently analyzed. However, given that a country highly dependent on international trades will inevitably face various ISDS claims, ISDS proceedings have to be understood on a larger scale. In other words, ISDS proceeding has to be viewed as a signal for the globalization of public/administrative law. Therefore, it is necessary to partly incorporate the system and principles of common law jurisdictions and interpret the actions of public institutions from a public/administrative law perspective. In addition, unnecessary and hasty legislations, abusive administrative guidances or interventions must be avoided. The need for fortifying transparency and fairness in legislative and administrative procedures should also be emphasized, along with the respect for various procedural principles and due process of law. Chiefly, domestic laws and regulations must be adapted to and conform with global standards.