국제투자분쟁(ISDS)의 새로운 지평:조정(Mediation) 활성화 방안 연구 - 사례와 국제규범 분석을 중심으로 -

The contemporary Investor-State Dispute Settlement (ISDS) regime faces a severe “legitimacy crisis” due to high costs, prolonged proceedings, inconsistent awards, and controversies regarding the infringement of states’ sovereign right to regulate. Above all, the adversarial structure of arbitration, which determines a clear winner and loser, inevitably destroys trust between parties. As evidenced in the Metalclad v. Mexico case, this structure exposes limitations where even a prevailing investor suffers the loss of a “broken relationship.” Against this backdrop, “Mediation,” which reflects the parties' substantive interests and seeks mutual benefits, is emerging as a new paradigm for dispute resolution. However, its actual utilization in the ISDS landscape remains minimal. This study aims to examine the causes of this discrepancy and explore concrete institutional measures to revitalize ISDS mediation. This study identifies that the fundamental barrier to mediation is not the commonly cited “lack of enforceability of settlement agreements,” but rather the unique characteristics of the respondent State - specifically, the “political and institutional barriers” within state bureaucracies. The move by many states to exclude government-involved settlements via Article 8 reservations under the Singapore Convention suggests that factors deeper than enforceability are at play. Notably, the SPP v. Egypt case serves as a decisive example showing how a bureaucrat’s fear of political backlash regarding a voluntary settlement can thwart a rational agreement and result in massive losses to the national treasury. In other words, state officials exhibit a tendency to “defer responsibility,” preferring arbitration - where they can shift the blame to a third-party tribunal even in the event of a loss - over bearing the “active responsibility” associated with a settlement. Therefore, this paper argues that to promote ISDS mediation, institutional designs providing “Political Cover” - safeguards against post-audit scrutiny, criminal liability, and political criticism - must be prioritized for officials. Two specific measures are proposed. The first is the introduction of “Mandatory Mediation.” By stipulating mediation as a compulsory precondition to arbitration in investment treaties, officials gain procedural justification, engaging in negotiations to fulfill treaty obligations rather than by arbitrary discretion. This also prevents the issue of missing the optimal window for settlement due to the “procedural inertia” of arbitration (i.e., the entrenchment of adversarial relationships) once proceedings commence, as seen in the Achmea case. The second is the active utilization of “Evaluative Mediation.” By leveraging the mediator’s authority to make recommendations introduced in Rule 21(4) of the 2022 ICSID Mediation Rules, a credible expert mediator can assess the objective probability of success and the reasonableness of a settlement proposal. This provides officials with substantive justification to defend against domestic political criticism and make rational decisions. The international community is already establishing mediation as a new global standard for ISDS through the adoption of the UNCITRAL Guidelines and Model Provisions, and the enactment of the 2022 ICSID Mediation Rules. Aligning with this trend, the Korean government should actively incorporate mandatory and evaluative mediation clauses when enacting or amending investment treaties. Domestically, it is urgent to strengthen the ISDS response control tower centered on the Ministry of Justice’s International Dispute Settlement Division. Furthermore, institutional reforms are needed to establish clear legal authority and budgetary grounds for mediation, ensuring officials can engage in flexible and creative dispute resolution for the national interest without fear of audits or political censure. In conclusion, mediation is an essential procedure that complements, rather than replaces, arbitration. By revitalizing mediation, the ISDS regime can evolve into a more cost-effective and future-oriented dispute resolution system.