ICSID 중재의 물적 관할에 관한 연구 (A Study on the Jurisdiction Ratione Materiae of ICSID Arbitration)

서지정보

· 발행기관 : 한국무역상무학회
· 수록지 정보 : 무역상무연구 / 79권 / 53 ~ 72페이지
· 저자명 : 황지현, 장은희

초록

The ICSID Convention stipulates the need for investment, but does not specify the definition of investment, so there is much controversy over the scope of investment. Therefore, this study considers the meaning and scope of investment required to establish jurisdiction over ICSID Convention Article 25 focusing on ICSID cases.
Many Arbitral Tribunal judges that the interpretation of the investment satisfies the requirements such as the a contribution of money or assets, an element of risk, a certain duration, a contribution to the economic development of the host state. In interpreting the investment, it is desirable to consider the general meaning of the investment under the ICSID Convention, the definition of the investment specified under the BIT, and the meaning of the investment under the general principles of law in international law.
If the scope of the investment is broadly defined under the BIT, the scope of the investment in the ICSID Convention should be broadly interpreted accordingly. However, there is a view that even if the scope of investment in the BIT is broadly defined, the investment in Article 25 of the ICSID Convention should be interpreted in a general sense, and the ICSID Convention does not apply to a wider investment beyond this.
In relation to the legality of the investment, only the investment that meets the laws and regulations of the host state is protected, and the illegal investment in violation does not constitute the jurisdiction of the arbitral tribunal. Many arbitral tribunals consider legitimacy to be an important element of investment.

영어초록

The ICSID Convention stipulates the need for investment, but does not specify the definition of investment, so there is much controversy over the scope of investment. Therefore, this study considers the meaning and scope of investment required to establish jurisdiction over ICSID Convention Article 25 focusing on ICSID cases.
Many Arbitral Tribunal judges that the interpretation of the investment satisfies the requirements such as the a contribution of money or assets, an element of risk, a certain duration, a contribution to the economic development of the host state. In interpreting the investment, it is desirable to consider the general meaning of the investment under the ICSID Convention, the definition of the investment specified under the BIT, and the meaning of the investment under the general principles of law in international law.
If the scope of the investment is broadly defined under the BIT, the scope of the investment in the ICSID Convention should be broadly interpreted accordingly. However, there is a view that even if the scope of investment in the BIT is broadly defined, the investment in Article 25 of the ICSID Convention should be interpreted in a general sense, and the ICSID Convention does not apply to a wider investment beyond this.
In relation to the legality of the investment, only the investment that meets the laws and regulations of the host state is protected, and the illegal investment in violation does not constitute the jurisdiction of the arbitral tribunal. Many arbitral tribunals consider legitimacy to be an important element of investment.

참고자료

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