국제투자중재상 공정·공평대우에 관한 연구: 투자자의 ‘정당한 기대’ 성립과 한계

Legitimate expectation has played a dominant role in interpreting and applying the Fair and Equitable Treatment, though it is not explicitly stipulated in International Investment Agreement(hereinafter “IIA”). Legitimate expectation, especially, is an important element in setting the policy direction for the IIA since it is closely tied to balance investor’s legal rights and host States’ legitimate right to exercise regulatory power. In this regard, this paper reviews as followed to find a way to improve the IIA through analysis on legitimate expectation specified by international investment arbitration cases. First, this paper examines requirements for legitimate expectation by separately analysing ①host states’ representations or promises, ②invests’ reliance, and ③implementation of investment. Second, this paper analyzes limitations of legitimate expectation centered on ①legitimate public policy objectives, ②legal status as a stand-alone legal obligation, and ③relative and individual aspects of legitimate expectation standards. Based on the these analysis, this paper comes up with a policy implication that the interpretation and application of legitimate expectation be made in a way to provide host states with further protection for their legitimate regulatory power in order to relieve the structural problems of international investment arbitration system such as violation of sovereignty and undermining of legitimacy of international investment law system. In conclusion, this paper proposes that it is worthwhile to consider adding a clause under the FET provision, which stipulates the importance of provision of protection for legitimate public policy objectives.