초과이윤세(횡재세) 부과로 인한 국제투자분쟁사례분석 및 정책적 시사점 - Perenco v. Ecuador 사건을 중심으로 -

In the process of soaring energy prices, windfall tax bills have been enacted and implemented in 25 European countries including Germany. Also, In Korea, windfall tax bill was proposed, and many controversies were raised in the process of enacting the bill. Apart from the controversy over the legitimacy of the windfall tax, ISDS has also been raised against countries that have imposed the windfall tax. For us ahead of the enactment of legislation on excess profit taxes, implications can be obtained from the Perenco v. Ecuador case. Foreign investors investing in equity participation can be recognized as indirect investors and can file ISDS if they suffer losses such as a decrease in dividend profits or a decline in stock prices due to the windfall tax legislation. Second, in the Perenco case, the FET violation was recognized for the statute that recovered up to 99% of the excess profit, and the indirect expropriation of the concession contract was recognized. Despite the strict requirements for acknowledging violations of investment agreements on windfall taxes, legislation must be prudent. These legislative measures could significantly reduce Korea's policy consistency and predictability, eventually leading to a decrease in foreign investment attraction. However, problems due to the fact that government policies and measures for public purposes such as labor, environment, and health are significantly restricted by foreign investors' ISDS complaints have recently emerged. In order to solve this problem, methods are being considered to exclude government policies due to labor, environmental and public order from the subject of investment disputes in FTAs or BIT. In addition, in order to prevent foreign investors from filing ISDS against public policies, the necessity of reviewing measures to avoid state responsibility by analyzing existing mid-trial precedents when establishing the policy is also emphasized.