엘리엇·메이슨 대(對) 한국 투자중재판정 본안전 쟁점 분석: 투자와 투자자의 개념을 중심으로

This paper discusses two international investment arbitration cases, which were brought by Elliott and Mason against Korea. In these cases, administered by the Permanent Court of Arbitration (PCA), the two hedge funds sought damages which were allegedly suffered in the merger of Cheil Industries Inc. and Samsung C&T Corp. under Chapter 11 of the Korea-US FTA. This paper focuses on the definitions of investment and investor among the preliminary objections. The author points out that the Tribunals erred in acquiescing to a breach of the principle of estoppel, conflating the distinct concepts of ‘investors of the other Party’, ‘covered investments’ and ‘investments’, thus expanding the scope of ‘covered investments’; transforming Mason General Partner’s activities for other Mason partners into resource commitments for the benefit of Korea; relying on subjective rather than objective elements in the application of the duration requirement. In addition, the paper pointed out that Korea failed to effectively defend its position against shareholders’ status as claimants for reflective losses. Lastly, the author regrets that the Tribunals as well as Korea failed to take due note of intentions of Contracting Parties expressed in the submissions and changes made by the 2018 Amendment Protocol of the Korea-US FTA, which should have been duly taken into account in accordance with Article 31.3(a) & (b) of the 1969 Vienna Convention on the Law of Treaties. The author recommends, if circumstances allow, to stipulate removal of short-term portfolio investment from the covered investment, and standing limitation to bring a claim for reflective loss and indirect investment.