한미자유무역협정(FTA) 투자자국가소송제도(ISD)의 오해와 진실

초록

Debates over the Free Trade Agreement(“FTA”) between U.S. and Korea are now focused on the single issue; Investor-State Dispute Settlement(“ISD”). It was ISD that was the issue as well when U.S. and Korea began to talk on FTA. It is indispensible for a foreign investor to have an effectively reparing tool when the local laws and policies caused them suffer from damages. They can lean on a locan judicial system. However, it would not be easy for a foreigner to trust a local judicial system when it faces a dispute related to a local law or any action taken by the government. It thus would need to run an independent judge system such as an international arbitration under international organization. ISD is the one to meet with this need. When a foreign investor suffers from any damages caused by the laws or policies of local government, it can take an action for ISD under the International Centre for the Settlement of International Dispute(“ICSID”). U.S. and Korea has agreed to adopt ISD as a dispute settlement procedure under U.S.-Korea FTA. It is under Chapter 11 which states in detail for the ISD along with other arbitration tools entitled, “Investor and the State Dispute Settlement.”It is truly controversial, however, whether ISD, as a dispute settlement procedure, would do a good or a bad to Korea. FTA supports along with Korean government argues that it is the global standard which has produced a fair and reasonable judgement by a third and independent party. It is not a logic of power but a logic of fairness that has ruled over all procedures. It is not fair to U.S. nor to Korea and it has proved that it has played a fair role. On the other hand, the opposition party and the critic presses argue that there are only 8 Koreans registered at the ICSID while there are 137 Americans. U.S. has lost in 20% out of all cases it has filed. This simples shows that how unfair ICSID has run. Also, ISD would interfere in the judicial system of Korea what must be respected by Korean government. This paper has reviewed what ISD is and analyzed the major issues raised by the opposition. This effort to clarify what is true and what is false would help unnecessary conflicts in Korean society.

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