국제투자중재에 대한 반작용 - 정당한 규제권한 조항 도입 검토 -

As criticism over the international investment arbitration is gradually gaining ground, both substantive and procedural rules are currently under review in a way to secure public policy spaces. Recent outbreak of the Covid-19 gives further impetus to the backlash against international investment arbitration. Moreover, the necessity to regulate newly-emerged issues such as critical and emerging technologies(Artificial Intelligence, quantum computer, or autonomous systems) and economic security looms large, not to mention traditional issues such as public health, public morals, and environment. International investment arbitration, however, has ensured public policy spaces of states in a inconsistent and fragmented manner especially on key substantive provisions. In addition, it has been difficult to successfully invoke exceptions such as general exception provision under international investment treaties and circumstances precluding wrongfulness under customary international law. Considering that striking a balance between police powers of states and provision of investment protection is closely related to the long-term durability of the international investment treaty, it is, therefore, of importance to review ways to tackle this issue. In this vein, this paper carefully reviews the introduction of the ‘Investment and Regulatory measures’ provision which is newly drafted based on elements of investment arbitration cases and recent international investment treaties. With this new provision, it is expected that not only jurisprudence over legitimate public policy spaces be coherently developed but the purview of legitimate regulations be widened.