국제투자분쟁에서의 심사기준과 국가의 규제권한 — 국제투자분쟁 제도가 우리 행정법에 미치는 영향을 중심으로 —

Korea introduced the ISD in signing a number of investment treaties, and ISD arbitration was actually applied for against Korea, which created a risk of actual loss in Korea. ISD restricts the state's right to regulate, causing a problem of regulatory chill. In relation to this, it is argued that, from the public law point of view, the public interest regarding the state's regulatory authority should be fully considered through the proportionality principle, or the exercise of the state's discretion should be respected in public policy. In fact, there are also judgment cases that reflect this point of view. Although ISD is for foreign investors, it is in the realm of administrative law as it relates to the legality of administration and national responsibility for illegal administration. When there is a difference between the level of protection for foreign investors under the ISD and the protection against domestic investors under the domestic administrative law, inequality for domestic investors arises. Since various efforts are being made in international investment law to ensure the legitimate regulatory authority of the state, it is necessary to reflect this in our administrative law on the premise that the national responsibility under the international investment agreement is to provide a reasonable level of protection for investors. In other words, by actively referring to the ISD judgment standards in the application of Korean administrative laws, Korea's judgment standards are aligned with the global standards. Furthermore, in the case of indirect expropriation, Korea does not yet have a system to directly claim monetary compensation, but it is necessary to prepare a procedure for claiming monetary compensation as state liability by referring to the ISD procedure. In addition, from the point of view of international investment law, only the recognition of illegality under domestic law does not immediately result in liability for compensation, but requires an additional requirement that it is a serious and obvious violation. This provides implications for the relationship between illegality and negligence in state liability. It should be used as an opportunity to raise the level of rule of law in domestic administration through comparison of ISD arbitration jurisprudence and domestic jurisprudence, away from the viewpoint that ISD is a risk to state.