기후변화 관련 사건에 적용되는 국제투자중재의 투자자 보호 기준

• 영문명: Standards of Protection in Investment Arbitration for Upcoming Climate Change Cases
• 발행기관: 한국중재학회
• 저자명: 김대중(Dae-Jung Kim)
• 간행물 정보: 『중재연구』 제24권 제2호, 33~52쪽, 전체 20쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2014.06.30

영문 초록

Although climate change is a global scale question, some concerns have been raised that principles of investment arbitration may not adequately address the domestic implementation of climate change measures. A recent ICSID investment arbitration of Vattenfall v. Germany with regard to the investor’s alleged damages from the phase-out of nuclear plants is a salient climate change case. The 2005 Kyoto Protocol was made to reduce greenhouse gas emissions and it provides a number of flexible mechanisms such as Joint Implementation (JI) and Clean Development Mechanism (CDM). Implementation of the Kyoto Protocol allows dispute settlement through investor-state arbitration. Any initiation of stricter emission standards can violate the prohibition on expropriations in investment agreements, regardless of the measures created to reduce greenhouse gas emissions. The effect-based expropriation doctrine can charge changes to existing emission standards as interference with the use of property that goes against the legitimate expectation of a foreign investor. In regulatory chill, threat of investor claims against the host state may preclude the strengthening of climate change measures. Stabilization clauses also have a freezing effect on the hosting state s regulation and a new law applicable to the investment. In the fair and equitable standard, basic expectations of investors when entering into earlier carbon-intensive operations can be affected by a regulation seeking to change into a low-carbon approach. As seen in the Methanex tribunal, a non-discriminatory and public purpose of environmental protection measures should be considered as non-expropriation in the arbitral tribunal unless its decision would intentionally impede a foreign investor’s investment.

목차

I. Introduction

II. Vattenfall v. Germany : Salient Climate Change Dispute

III. Climate Change Regime, Kyoto Protocol and Investor-State Arbitration

IV. Re-evaluating Standards of Protection in International Investment Arbitration for Considering Climate Change Cases

V. Conclusion

키워드

Climate Change Kyoto Protoco Investor-State Arbitration Indirect Expropriation Regulatory Chill Fair and Equitable Treatment