간접수용의 판단기준에 관한 ICSID 중재사례 연구

• 영문명: A Study on the ICSID Arbitration Cases for Determination Standards of Indirect Expropriation
• 발행기관: 한국중재학회
• 저자명: 오원석(Won-Suk Oh) 황지현(Ji-Hyeon Hwang)
• 간행물 정보: 『중재연구』 제25권 제1호, 65~86쪽, 전체 22쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2015.03.30

영문 초록

Under current international investment law clear criteria to determine standards of indirect expropriation are absent. Arbitral tribunals determine on a case-by-case whether an indirect expropriation has occurred by conducting a fact-based inquiry. However, three common determination standards can be inferred by analyzing prior arbitration cases. The appropriate analytical framework that can be applied to determine whether a state’s measure constitutes an indirect expropriation is as follows. ⅰ) the degree of economic invasion of the state’s action into the foreign investor’s property rights and durability of the period, ⅱ) interference with the foreign investor’s distinct and reasonable investment-backed expectations, and ⅲ) the nature, purpose and character of the state’s measure. Therefore, it is necessary to fully acknowledge and to utilize strategically this determination standard. However, derived standards cannot be applied to all disputes en masse. So, it is desirable to exclude ambiguity and to clearly define the determination standard of indirect expropriation in investment agreements, since arbitral tribunals can apply different determination standards on a case-by-case basis. And, based on the discussions until now, more developed standards and direction in response to demand should be established through consistent analysis and review of precedents related to indirect expropriation. Lastly, This study is expected to be a useful guideline to prepare a necessary countermeasure to prevent dispute related to indirect expropriation beforehand or in case of dispute occurrence.

목차

Ⅰ. 서 론

Ⅱ. 간접수용의 의의

Ⅲ. 간접수용의 판단기준

Ⅳ. ICSID 중재사례 분석

Ⅴ. 결 론

키워드

간접수용 ICSID 국제투자분쟁 ISD 국제투자협정 Indirect Expropriation ICSID International Investment Dispute ISD International Investment Agreement