투자보장협정의 체결 동향 - 2019 네덜란드 모델 BIT를 중심으로

In 2019, the Dutch model BIT underwent a change from an active role of protecting investors to incorporating elements that prevent abuse of international investment agreements and improve the investor-state dispute settlement (ISDS) system. By comparing and reviewing the Dutch model with Korea's international investment agreements, including the investment chapter of the Korea-US FTA concluded in 2007, and analysing controversial issues, we discuss the future direction of Korea's international investment agreement. The Dutch model prevents potential abuse of international investment agreements by ① requiring investors to engage in substantial business activities and ② prohibiting corporate restructuring with sole purpose for ISDS filing. The model also limits substantive protection by ① specifying the host state's right to regulate, ② restricting the scope of most favored-nation treatment, and ③ specifying the criteria for fair and equitable treatment. To improve the ISDS system, the Dutch model ① supplements an alternative dispute resolution system other than arbitration, ② improves the economic efficiency of the dispute resolution procedure, and ③ strengthens the requirements for fairness and independence of arbitrators to address the issue of double-hatting. Finally, the model includes discussions on sustainable development and corporate social responsibility to lay the foundation for new ESG-related policies and regulations. Since the signing of the Korea-US FTA over 15 years ago, which has been served as a model for Korea's current international investment agreement, the number of ISDS cases filed against Korea has increased. Thus, it is necessary to reexamine the direction of Korea’s international investment agreement in a way that balances regulatory authority and prevents abuse of the ISDS system.