FTA 하에서 최소기준대우 위반의 인정에 관한 연구 -Eco Oro Minerals Corp. v. Republic of Colombia 사건을 중심으로-

The decision in Eco Oro Minerals Corp. v. Republic of Colombia attracted immediate public and academic attention and sparked enormous controversy. This was due to the arbitration tribunal’s unconventional interpretation of the general exception clause in the Canada-Colombia Free Trade Agreement(FTA) and its argument that the host country’s compensation obligations remain intact even if the challenged measure meets the requirements of this exception. This conclusion has since been interpreted as an indication that tribunals continue to ignore these sensitivities, despite attempts by States to decouple certain regulatory and/or administrative measures (e.g. environmental protection) motivated by public interests from the scope of protection under some recent international investment agreements (IIAs). Initially, both the majority opinion and the opinion of arbitrator Philippe Sands agreed that the provision should not be interpreted as an autonomous FET provision separate from the minimum standard of treatment (MST) under customary international law. However, the arbitrators disagreed over whether to adopt a restrictive approach to the content of the standards, similar to the majority opinion of the NAFTA tribunal, which adopted a broad interpretation. In the light of this background, this study focuses on the parties’ arguments, the tribunal’s analysis, and the interpretive implications of the award, with a focus on the application of indirect expropriation, fair and equitable treatment(FET)/minimum standard of treatment(MST), and general exception provisions.