코로나 팬데믹 상황에서의 미국의 외국인 투자규제의 정당성에 대한 연구

This paper made a study about justification of foreign investment regulations in USA under the COVID-19 pandemic. The USA implemented regulations on foreigners and its own response measures based on administrative and economic aspects as an emergency response to the COVID-19 pandemic. These USA regulatory measures and responses were implemented without prior review of other countries’ economic measures. It is believed that they were implemented without sufficient review and interpretation of the free trade agreement (WTO, FTA) and Bilateral InvestmentTreaties (BIT) between other countries and the USA. This could lead to unexpected and sudden losses for foreign investors. In addition, various benefits for individuals (including cash support policies) were not applied at all to foreigners having visas. This shows that, compared to other countries, it severely discriminates between its citizens who are permanent residents and citizens and foreigners in terms of support for individuals. The USA’s COVID-19 regulatory measures have had a huge impact on the entire world. The USA’s COVID-19 regulatory measures provide standards and guidelines for other countries, but they were implemented unilaterally without considering, reviewing, or providing direction for the regulatory measures of other countries. It is also questionable whether the federal COVID-19 regulatory guidelines and standards were properly communicated to each state. In addition, the lack of unified regulations due to the imbalance in the regulatory measures of each state is also considered a problem. This imbalance in the regulatory measures of each state is likely to cause significant damage to foreign investors who were investing based on the WTO, FTA, and BIT. Also, the COVID-19 pandemic situation, which no one expected, expanded the concept of national security as the basis for the regulation of foreign investors under FIRRMA, which was the existing legal basis for foreign investment regulations in the USA, and led to a comprehensive understanding of the concept of national security in order to comply with the request for national security. Furthermore, the concept of national security has developed to the point where China, a major virtual adversary, can be held responsible for the spread of the virus due to its claim that the virus originated from China and its violation of the duty of territorial management under international customary law. This has even enabled the formation of a political foundation that can clearly regulate Chinese investment in the United States in response to national security threats. For other foreign countries, excluding China, the expansion and application of the concept of health security has resulted in the establishment of a system that can restrict and regulate free investment by foreigners, and thus a system that can also serve as a basis for regulating foreign investment. The justification of foreign investment regulations and restrictions in response to the COVID-19 pandemic situation in the United States must establish a natural flow of connection in terms of causation judgment. In other words, the spread and expansion of the COVID-19 virus causes a serious threat to the health security of the United States, which in turn causes a threat to national security, and in order to defend against this threat, the United States has taken measures to restrict and regulate investment in foreigners, and foreigners have also suffered the consequences of the damage. These all flows must be acknowledged between them as causations. In addition, if the application of necessity and conflict of duties as justification defense could be included under the ‘national security exception’, which is a preceding constituent by strict supplemental principal, it is thought that there is no need to bring and apply this justification defense.