한미FTA상의 투자자국가제소제와 우리 헌법 -그 위헌성을 중심으로- (The Challenge to Constitutionalism of the New World Trade Regime-Some Critics on the Investor-State Dispute Settlement System of the KORUS FTA-)

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초록

This paper tries to prove the Neo-constitutionalism in new world trade regime will infringe so many significant ideals of the constitutionalism of nation states in order to make so much free space for transnational capitals to move all over the world. The most exemplary case is that of the Investor-State Dispute Settlement (ISD) system, which has been adopted in FTA's made by U.S. The ISD was originally introduced as a dispute resolution method in BIT's. Since it was combined with FTA in the NAFTA, it has construed one of the most powerful mechanism to enforce obligatory provisions of investment agreements and to protect transnational capitals.
The first legal challenge to such ISD system was made in Canada. The petitioners have argued that ISD sould be declaired as unconstitutional because it impaired Canadian constitutionalism, infringed the judicial souvereignty, and denied human rights which was guaranteed by the Bill of Rights. The Superior Court has rejected such argument and the appellate court has affirmed that decision on ground that the NAFTA was not domestically binding legal norms, but only internationally valid norm.
Such holding of the Canadian courts shall not be valid in Korean legal system, where international legal norms can automatically be applied with same effects and forces as municipal law made under Korean Constitution. Rather, the petitioners' arguments shall be much more salient and plausible in Korean legal system. This paper analyses those arguments in details. In addition, the constitutional orientations toward so called Sozialstaat, under which Korean government should implement several constitutional obiligations and mandates, if necessary, at the sacrifice of private properties. Neo-liberalism shall be no more compatible with Korean cosntitutionalism than ISD be with Korean social market economy system under chapter 9 of the Korean Constitution.
Surely this paper is written from a kind of partisan perspective against KORUS FTA. But such political bias can be legitimated when the ideal of Korean constitutionalism toward human rights is taken into account: It is the ISD that seriously impairs human rights protection system and destroy public virtu guaranteed by the constitution.

영어초록

This paper tries to prove the Neo-constitutionalism in new world trade regime will infringe so many significant ideals of the constitutionalism of nation states in order to make so much free space for transnational capitals to move all over the world. The most exemplary case is that of the Investor-State Dispute Settlement (ISD) system, which has been adopted in FTA's made by U.S. The ISD was originally introduced as a dispute resolution method in BIT's. Since it was combined with FTA in the NAFTA, it has construed one of the most powerful mechanism to enforce obligatory provisions of investment agreements and to protect transnational capitals.
The first legal challenge to such ISD system was made in Canada. The petitioners have argued that ISD sould be declaired as unconstitutional because it impaired Canadian constitutionalism, infringed the judicial souvereignty, and denied human rights which was guaranteed by the Bill of Rights. The Superior Court has rejected such argument and the appellate court has affirmed that decision on ground that the NAFTA was not domestically binding legal norms, but only internationally valid norm.
Such holding of the Canadian courts shall not be valid in Korean legal system, where international legal norms can automatically be applied with same effects and forces as municipal law made under Korean Constitution. Rather, the petitioners' arguments shall be much more salient and plausible in Korean legal system. This paper analyses those arguments in details. In addition, the constitutional orientations toward so called Sozialstaat, under which Korean government should implement several constitutional obiligations and mandates, if necessary, at the sacrifice of private properties. Neo-liberalism shall be no more compatible with Korean cosntitutionalism than ISD be with Korean social market economy system under chapter 9 of the Korean Constitution.
Surely this paper is written from a kind of partisan perspective against KORUS FTA. But such political bias can be legitimated when the ideal of Korean constitutionalism toward human rights is taken into account: It is the ISD that seriously impairs human rights protection system and destroy public virtu guaranteed by the constitution.

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