국제투자중재에서의 자연인 투자자 관련 인적 관할 - 국적 판단 및 다중국적 관련 주요 판정례의 법리 분석

Protections and privileges under an investment treaty extend only to those who are qualifying investors. In order to bring an international investment claim, purported claimants must satisfy the requirements under the relevant investment treaty and the ICSID Convention, as the case may be. In other words, one needs to be an investor not only for the purposes of invoking substantive protections of the relevant investment treaty, but also for the purposes of commencing an investment arbitration as a procedural matter. In practice, the question of whether these requirements are satisfied is categorized as one of jurisdiction ratione personae, in the absence of which the tribunal must dismiss the claim. The sources governing the definition of an investor include the relevant investment treaties as well as Article 25(2) of the ICSID Convention. The definition of an investor varies from treaty to treaty, and the applicable procedural framework for an international investment arbitration ranges from the ICSID Convention to UNCITRAL arbitration rules, which makes it difficult to identify generally accepted principles. Therefore, it is necessary to comprehensively review the relevant investment arbitration awards and, in addition, jurisprudence on diplomatic protection. Jurisprudence on the nationality requirement as a prerequisite for diplomatic protection still matters in the field of international investment arbitration not only because it provides historical and theoretical background but also because it may be applicable in non-ICSID arbitrations, subject to specific provisions of the relevant investment treaty. In particular, the principle that each State settles, by its own legislation, the rules relating to its nationality, but when the nationality of a person is challenged in international arbitral or judicial proceedings, the international tribu nal is competent to pass upon that challenge is just as applicable in the context of international investment arbitrations as it is in the context of diplomatic protection. On the other hand, the requirement of genuine connection or jurisprudence on dominant and effective nationality are less likely to be applicable in international investment arbitrations. Various issues surrounding nationality as a requirement for a natural person who seeks to qualify as an investor have been dealt with in Soufraki v. UAE, Siag v. Egypt, Al Tamimi v. Oman, and Seo v. Korea. These awards have provided or are expected to provide guidance in subsequent cases involving the same or similar issues. That said, it is important to note that, when reviewing the reasoning and findings of the above arbitral awards, the outcome of each case would ultimately depend on the facts of the matter at hand as well as specific provisions of the relevant investment treaties and the applicable procedural framework, such as the ICSID Convention. Further, it would be prudent for purported claimants to take those differences into account in choosing the applicable procedural framework for their arbitration.