ICSID 협약상 준거법 적용에 관한 연구

This study examines the application of governing law under the ICSID Convention, emphasizing the importance of interpreting the Convention according to its original context and legislative intent. It argues that some ICSID tribunals have shown a tendency toward arbitral activism, rendering awards based on personal or policy considerations rather than the text and structure of the Convention. While such activism may sometimes be seen as progressive interpretation, it can undermine the rule of law, predictability, and treaty coherence. Therefore, tribunals should base their reasoning on the Convention’s text, systemic logic, travaux préparatoires, and general principles of international law rather than on subjective policy preferences. Article 42 of the ICSID Convention underwent several drafting stages. The initial draft allowed tribunals discretion to apply either international law or the host State’s domestic law, but concerns about excessive discretion led to revisions. The final version, widely supported, removed the tribunal’s power to arbitrarily choose between legal systems. Parties may select the governing law in several ways: international law alone, though domestic law cannot be entirely excluded; domestic law alone, whether of the host State or a third country; third-country law, either by agreement or through conflict-of-law rules; or both international and domestic law concurrently, often producing results similar to Article 42(1) when the governing law is not explicitly agreed upon. Ultimately, the study underscores that clear specification of governing law by investors and balanced adherence to domestic and international norms by host States are essential for legitimacy, predictability, and effectiveness in ICSID arbitration.