국제투자협정의 예외조항에 관한 연구

연세대학교 일반대학원 법학과 이서연 석사학위논문
지도교수 박덕영

2012 년 6 월

출처 : 연세대학교 중앙도서관 원문공개 (http://library.yonsei.ac.kr/ )

목 차
제1장 서론 ································································································· 1
제1절 연구의 목적···································································································· 1
제2절 연구법위 및 연구방법 ·················································································· 2
제2장 예외조항과 국가의 규제권한 ··················································· 5
제1절 예외조항의 정의 ···························································································· 5
제2절 구체적인 IIA상의 의무와 예외조항의 비교: 국가의 규제권한을
중심으로··········································································································· 6
I. 내국민대우·최혜국대우와 국가의 규제권한 ··············································· 6
II. 공정·공평한 대우와 국가의 규제권한························································ 7
III. 수용과 국가의 규제권한·············································································· 9
IV. 예외조항과 국가의 규제권한 ···································································· 10
제3절 소결 ················································································································ 11
제3장 예외조항과 긴급피난의 관계 ················································· 12
제1절 긴급피난의 개관 ·························································································· 12
제2절 예외조항과 긴급피난의 관계 ···································································· 12

I. 예외조항과 긴급피난의 요건 비교····························································· 12
II. 아르헨티나 경제위기 관련 사건을 통해 살펴본 양 조항의 관계····· 16
제4장 예외조항의 유형 ········································································ 25
제1절 국가의 규제권한을 보장하는 유형 ·························································· 26
제2절 GATT 제XX조 유형 ···················································································· 27
제3절 절차적 요건이 있는 유형·········································································· 28
제4절 자기판단적 유형 ·························································································· 30
I. 자기판단성이 명시된 경우··········································································· 30
II. 자기판단성이 명시되지 않은 경우 ··························································· 31
III. 자기판단조항과 사법심사의 가능성 ························································ 33
제5절 특정 의무 위반에 한정된 유형································································ 33
제6절 분쟁의 대상으로부터 배재하는 유형······················································ 34
제7절 그 외 논란이 되는 유형············································································ 34
제5장 예외조항의 일반적 요건 ························································· 38
제1절 예외사유의 종류 ·························································································· 38
I. 필수적 안보이익····························································································· 38
II. 환경 ················································································································· 54
III. 공중보건 ········································································································ 57
IV. 국제평화·안보의 유지················································································ 61
V. 공공질서········································································································· 63
제2절 예외조항상의 조치의 관계요건에 관한 논의········································ 65
I. ‘관계요건’의 의미·························································································· 65
II. 아르헨티나 경제위기 사건들과 필요성 요건········································· 66
제3절 조치발동국의 기여: 새로운 요건의 도입인가? ······································ 71
제4절 예외조항에 대한 입증책임 부담······························································ 72
제6장 한국의 국제투자협정상의 예외조항 분석 ·························· 74
제1절 BIT상의 예외조항 현황 ·············································································· 74
I. 한-독 BIT 제12조··························································································· 75
II. 한-일 BIT 제16조························································································· 76
제2절 FTA상의 예외조항 현황············································································· 81
I. 한-칠레 FTA 제20.2조··················································································· 81
II. 한-싱가포르 FTA 제21.2조 및 제21.3조 ·················································· 83
III. 한-EFTA FTA 투자협정 제20조······························································· 86
IV. 한-ASEAN FTA 투자협정 제20조 및 제21조······································· 89
V. 한-인도 CEPA 제10.18조·부속서10-나·부속서 10-다····························· 92
VI. 한-EU FTA 제7.50조················································································ 97
VII. 한-페루 FTA 제24.1조 및 제24.2조······················································· 99
VIII. 한-미 FTA 제23.2조 ··············································································· 101
제3절 한국의 국제투자협정의 예외조항에 대한 전반적인 평가················ 102
I. 예외조항의 유형 측면················································································· 102
II. 예외사유 측면····························································································· 103
III. 평가·············································································································· 104
제7장 결론 ····························································································· 106
참고문헌 ························································································································ 109
부록 ········································································································· 122
부록 A. 각종 국제투자협정 내의 예외조항 ···················································· 122
I. 국가별 모델 BIT에서의 예외조항 ···························································· 122
II. 선별된 국제투자협정의 예외조항··························································· 123
III. 그 외 참조조항 ·························································································· 128
부록 B. 발효 중인 한국의 국제투자협정상의 예외조항 ······························· 133
I. 한-독 BIT ······································································································· 133
II. 한-일 BIT ····································································································· 133
III. 한-칠레 FTA ······························································································· 135
IV. 한-싱가포르 FTA ······················································································· 136
V. 한-EFTA FTA 투자협정 ············································································ 138
VI. 한-ASEAN FTA 투자협정 ······································································· 138
VII. 한-인도 CEPA ··························································································· 141
VIII. 한-EU FTA ······························································································· 144
IX. 한-페루 FTA ······························································································· 146
X. 한-미 FTA ···································································································· 147
<표 차례>
[표 1] 미국-아르헨티나 BIT 제XI조와 국가책임초안 제25조의 문언 비교 ····· 12
[표 2] 미국-아르헨티나 BIT 제XI조와 국가책임초안 제25조의 관계에 관한
중재판정부의 입장··························································································· 17
[표 3] 아르헨티나 경제위기 관련 사건의 시간적 순서······································· 23
[표 4] 발효된 한국의 BIT 현황················································································· 74
[표 5] 한국의 발효된 FTA 현황과 예외조항 유무 ················································ 81
[표 6] 한국 국제투자협정 예외조항의 유형별 현황 ··········································· 103
[표 7] 한국 국제투자협정 예외조항상의 예외사유 현황··································· 103