국제투자분쟁에서 조세조치의 실제 적용에 관한 소고

• 영문명: Application of Taxation Measures in Investment Arbitration
• 발행기관: 국제법평론회
• 저자명: 한창완(Changwan Han)
• 간행물 정보: 『국제법평론』제67호, 111~135쪽, 전체 25쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2024.02.28

영문 초록

This thesis examines the intricate relationship between taxation measures and investment agreements, highlighting the jurisdictional issues arising from clauses that exempt taxation measures from these agreements. These exclusion clauses are designed to delineate the jurisdictional boundaries of arbitral tribunals, specifying that disputes arising from taxation measures falling within these exclusions may be beyond their jurisdiction. This becomes particularly relevant when assessing whether taxation measures, excluded from the scope of investment agreements, are bona fide taxes. If they are not, the exclusion may not apply, potentially bringing the dispute within the tribunal’s purview. Conversely, taxation measures enacted under a state’s sovereign authority, even in the absence of specific exclusion clauses, are generally unlikely to be deemed violations of investor protection obligations, such as against expropriation or breaches of fair and equitable treatment standards. The critical questions is whether the contested taxation measures are genuinely aimed at raising public revenue in a fair and equitable manner, or if they serve to discriminate against or penalize foreign investor unfairly in the guise of taxes. This distinction is important for two reasons. First, bona fide taxation measures supported by exclusion clauses do not give rise to jurisdictional authority for an arbitral tribunal. Second, the absence of such clauses does not necessarily imply a breach of the host country’s obligations, provided the taxation measures are legitimate exercises of its sovereign power. The thesis argues that the mere presence of exclusion clauses should not automatically legitimize all taxation actions by the host state, nor should the absence of such clauses deter the state from implementing necessary tax policies aimed at public purposes. In international investment disputes concerning taxation, the core issue is whether the taxation measures were unfairly aimed at discriminating or penalizing foreign investments, rather than achieving a legitimate public purpose or deviating from the measures promised at the time of investment attraction. Overreliance on exclusion clauses to apply clearly unreasonable measures in the guise of taxation measureless could grant jurisdiction to the arbitral tribunal. However, in the absence of such conditions, and regardless of the presence of exclusion clauses in the investment agreement, host countries should confidently implement necessary tax policies for public objectives.

목차

Ⅰ. 들어가면서

Ⅱ. 투자협정상 조세조치 적용배제조항과 적용

Ⅲ. 조세조치로 인한 투자협정상의무 위반

Ⅳ. 마치며

키워드

조세조치 적용배제 조항 투자협정 투자분쟁 과세주권 Taxation Measures Exclusion Clause Investment Agreement Investment Arbitration Tax Sovereignty