EU ESG 규제와 국제경제규범: 긴장과 조화

In recent years, the necessity of incorporating ESG perspectives into corporate management has gained considerable attention, leading many countries to introduce ESG-based regulations. Among them, the European Union (EU) has emerged as one of the most proactive actors in addressing sustainability issues, such as climate change and human rights. Notably, recent ESG regulations often embody not only normative goals such as environmental protection and sustainability, but also economic and strategic aims including industrial protection and the pursuit of a fair international trade order. This raises important questions about the potential tensions between ESG regulations and international economic norms, and whether a harmonious balance between the two can be achieved. EU ESG regulations are characterized by several features: (1) extraterritorial application affecting foreign companies and overseas activities; (2) due diligence obligations that extend across global supply chains; (3) potential to act as trade barriers, such as through import or export restrictions; and (4) use as tools to enhance economic security. These characteristics may give rise to potential inconsistencies with international trade rules, including the GATT and the Korea-EU FTA, particularly in relation to the prohibition of quantitative restrictions, tariff concessions, and the principles of most-favoured-nation (MFN) and national treatment (NF). Similar concerns may arise under international investment law, especially regarding fair and equitable treatment (EFT), MFN, and NT obligations. Nevertheless, evolving interpretations of trade and investment norms – guided by customary international law and general principle of law – may justify the regulatory space for ESG measures. In particular, regulatory actions taken in pursuit of legitimate public policy objectives, such as environmental protection or public health, have increasingly been recognized in recent investment treaty practice, even though such exceptions are often absent in Korea’s existing investment agreements with EU member states. Given the complex and interdependent nature of modern global value chains, the EU’s ESG regulations hold substantial legitimacy and reasonableness in seeking to prevent human rights violations and environmental harms across supply networks. Their normative foundations should be duly reflected in the interpretation of international economic rules. Even in the absence of explicit treaty provisions, the development of such rules should be guided by evolving principles of international law.