국제투자협정상 안보예외조항의 심사기준 －신의칙의 재조명 －

International courts and tribunals have interpreted ‘essential security interests’ stipulated in security exceptions provisions in international agreements to denote vital interests of a state, such as military interests. However, as states perform their international trade and investment policies with a view to achieving economic security, we have noted several legal interpretations on essential security interests with extended meaning and scope. At the same time, the question has arisen as to who shall interpret the security exceptions provision by what standard of review. There are four interpretative issues concerning security exceptions in international investment agreements. The first issue is the scope of essential security interests provided in the security exceptions provision, and the second issue is who has the authority to interpret and determine the scope of security exceptions. The third issue is the jurisdiction of investment tribunals to decide states’ defense based on security exceptions provisions. The fourth issue is related to the standard of review applied to security exceptions provisions in investment disputes. The heated discussion is currently underway on the standard of review issue between the disputing parties. In Angel Seda and others v. Colombia, the tribunal examined these four issues of security exceptions in order. This paper analyzes the standard of review on the security exceptions provision in international investment agreements, focusing on the principle of good faith. The analysis starts with interpretive issues discussed in a number of international dispute cases related to security exceptions. Then, it examines the principle of good faith in international law from the standpoint of a general principle of international law and of the element of treaty interpretation provided in the Vienna Convention on the Law of Treaties of 1969(VCLT). Lastly, it suggests the meaning and limitation of the principle of good faith by examining its role as the standard of review of states’ regulatory powers in investment disputes. The principle of good faith is a general principle of law applicable to every step of the international investment process. Considering this general nature, it is necessary to examine the meaning of the principle of good faith in general before adopting it as the standard of review applied to the security exceptions provision. The principle of good faith is an element of treaty interpretation provided in the VCLT, and the principle has not been interpreted to permit a margin of appreciation beyond the boundary of the ordinary meaning of a treaty term. Unlike the security exceptions in the General Agreement on Tariffs and Trade 1994, the scope of permitted investment measures can be changed in accordance with the standard of review applied by investment tribunals to the security exceptions provisions. Therefore, it is necessary to suggest a new standard of review on the security exceptions provision in international investment agreements.