ICSID 중재상 ‘경제개발에의 기여’라는 기준의 의미

다국어 초록 (Multilingual Abstract)

1) The concept of investment in ICSID is much more important because it constitutes a criteria of its jurisdiction ratione materiae. Unless an asset or economic activity constitutes an ‘investment’ under Art. 25 of ICSID Convention, it is not subject to ICSID jurisdiction. This concept in both doctrines and arbitral decisions is, however, diverse and not coincident. This discordance is basically caused by lacuna of definition or of concrete criteria of investment in ICSID convention. Of which taking advantage, respondent tries to refute its jurisdiction in case necessary, arguing that the asset or economic activity concerned is not ‘investment’ under ICSID Convention.
2) This discord of the concept of investment in ICSID is more complicated by the doctrine that ‘contribution to economic development’ is required as an component of investment. This doctrine has been adopted for the first time by the Salini arbitration tribunal and furthermore the sole arbitrator of MHS case has dismissed the claim of investor for no other reason but the fact that he did not make a sufficient contribution to Malaysia’s economic development to qualify as an ‘investment’ for the purpose of art. 25(1) of ICSID convention.
3) The ‘contribution to economic development’ criteria still tends to be adopted by ICSID tribunals as a component of investment. But this trend causes several significant problems originated from it’s evaluation and it finally makes suspicious even whether it is an requisite component of investment or not. This situation results ultimately in hurting the legal stability and predictability in international investment arbitration. But neither scholars nor arbitrators still solve this problem nonetheless.
4) Therefore this article tries to contribute to solve this problem in the following manner: First, it examines what is the legal basis which the ‘contribution to economic development’ must be a component of investment in art. 25(1) of ICSID convention.
Next, it examines what problems are caused when the ‘contribution to economic development’ must be a component of investment and consequently it becomes a criteria of the jurisdiction of ICSID. For this purpose, the ICSID awards concerned and their intents is necessary to be analysed carefully. Such analysis leads to conclusion that the ‘contribution to economic development’ must not be a component of investment of art, 25(1) of ICSID convention but it should be an element for judging if an investment needs to be protected, for solving all problems caused in case of a component of investment.
Besides, it also examines which status separated with issue of jurisdiction, the issue of ‘contribution to economic development’ holds in case of a criteria of ‘protection’. As a result, it proposes the status of ‘admissibility’ to it.

참고문헌 (Reference)

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