신희택. (2017). 국제투자협정상 투자자의 정의와 정책적 고려사항. 통상법률, (133), 11-56.
[ABSTRACT]
Policy Considerations on the Definition of an Investor in the International Investment Agreements
The definition of an investor is one of the most essential elements in international investment agreements (IIA). Definition of an investor delimits the scope of investors eligible for protection of IIAs. The definition of an investment determines the jurisdiction ratione personae of the investment tribunals. According to UNCTAD, of the cases that ended in favour of the State, about half were dismissed for lack of jurisdiction. Therefore, jurisdictional objection is one of very important defenses of respondent states. There are some common features in the existing IIAs, but the actual wording of the investor definition in IIAs has a wide range of variance reflecting the timing of conclusion of such IIAs, the reasons for entering into such IIAs, respective economic status and investment flows between contracting states, and the particulars of investment policies of the state parties as well as the bargaining power of the parties. However, in general, the wording used to define an investor tended to be relatively simple. As a result, in actual investor-State disputes, the tribunal may have to interpret the text in reliance of Vienna Convention on the Law of the Treaties or customary international law. As the number of investor-State dispute increases, we occasionally see the cases where some claimants either abuse or manipulate the system beyond what it was intended by the contracting States. There are also free riders. States are responding to these phenomenon by refining the treaty texts and devising ways to reduce such undesirable practices in considering of the trends of the decisions of investment tribunals. It is also essential to review whether the current wording in the existing BITs is appropriate to be used in the multi-party investment agreements. This article attempted to review some of the major issues relating to the definition of an investor in IIAs which require fresh look in view of the current state of international investment law from the policy perspective of state parties. The conclusion is that there are many areas in the existing BITs and investment chapters of FTAs which need to be improved or strengthened to avoid the expansive application of the IIAs beyond what States reasonably anticipated at the time of conclusion of such IIAs and to address the potential abuses of treaty protection by their own nationals or nationals of non-party State.
Key words
BIT, Definition of an Investor, Denial of Benefits, ICSID Convention, International Investment Agreements, Nationality Planning, Investment Treaty Arbitration, Treaty Shopping
신희택. (2017). 국제투자협정상 투자자의 정의와 정책적 고려사항. 통상법률, (133), 11-56.
[ABSTRACT]
Policy Considerations on the Definition of an Investor in the International Investment Agreements
The definition of an investor is one of the most essential elements in international investment agreements (IIA). Definition of an investor delimits the scope of investors eligible for protection of IIAs. The definition of an investment determines the jurisdiction ratione personae of the investment tribunals. According to UNCTAD, of the cases that ended in favour of the State, about half were dismissed for lack of jurisdiction. Therefore, jurisdictional objection is one of very important defenses of respondent states. There are some common features in the existing IIAs, but the actual wording of the investor definition in IIAs has a wide range of variance reflecting the timing of conclusion of such IIAs, the reasons for entering into such IIAs, respective economic status and investment flows between contracting states, and the particulars of investment policies of the state parties as well as the bargaining power of the parties. However, in general, the wording used to define an investor tended to be relatively simple. As a result, in actual investor-State disputes, the tribunal may have to interpret the text in reliance of Vienna Convention on the Law of the Treaties or customary international law. As the number of investor-State dispute increases, we occasionally see the cases where some claimants either abuse or manipulate the system beyond what it was intended by the contracting States. There are also free riders. States are responding to these phenomenon by refining the treaty texts and devising ways to reduce such undesirable practices in considering of the trends of the decisions of investment tribunals. It is also essential to review whether the current wording in the existing BITs is appropriate to be used in the multi-party investment agreements. This article attempted to review some of the major issues relating to the definition of an investor in IIAs which require fresh look in view of the current state of international investment law from the policy perspective of state parties. The conclusion is that there are many areas in the existing BITs and investment chapters of FTAs which need to be improved or strengthened to avoid the expansive application of the IIAs beyond what States reasonably anticipated at the time of conclusion of such IIAs and to address the potential abuses of treaty protection by their own nationals or nationals of non-party State.
Key words
BIT, Definition of an Investor, Denial of Benefits, ICSID Convention, International Investment Agreements, Nationality Planning, Investment Treaty Arbitration, Treaty Shopping