GATS협정 해석에 대한 국제투자규범의 기여와 전망

Prospective Contribution of International Investment Law to the Interpretation of GATS

There have been not enough attempts to clarify the ambiguities in the GATS provisions causing potential disputes among the WTO members. Meanwhile, with the fast growing number of BITs and related arbitrations, more discussions on the cross-cutting issues have taken the place in the international investment context. Despite their different elements, sources and procedures of rule development, would it be possible for the international investment law with the fast speed of development to help the delayed negotiations for the GATS? The critical nexus between the GATS and the international investment law is ‘the service supply through the commercial presence which accompanies investments in the services sector’. They have an overlapping scope of application due to the broad coverage of the GATS according to its Article I:1. Also, the conditions for the entry and establishment under each Member’s specific commitments guaranteed under the mode 3 supply coincide with the investor protection clauses under their BITs. The trend of including ‘investment chapters’ in the rapidly increasing number of RTAs supports the growing awareness on this relevance among the WTO members. Due to this relevance, there are some cross-cutting issues–rules of origin, likeness, and procedural fairness–between the two regimes. Specific comparisons of each issue showed that the discussions on the similar terms in the investment context can at least suggest some possible resolutions to the GATS. First, due to complex corporate structures, defining the nationality of juridical persons through the ownership or control requirement in the GATS would be a difficult task. These limitations of the GATS rules of origin may be supplemented by the control test from the investment treaties which requires ‘sufficient link’ test and the ‘substantial business activities’ test together. Second, since there is the practical interpretative relevance on the ‘supplier’ in the text of non-discrimination rules in the GATS related to the relationship between the service and the supplier with regard to ‘likeness’, the so-called ‘merged test’ that requires weighing and balancing of the factors related to both services and the suppliers seems desirable. As the ‘like circumstances’ standard, which has been developed in investment treaties, resembles the merged test, a number of examples of this comprehensive approach in the international investment arbitrations would suggest whether it can be a viable option for the GATS. Third, the obligations for the ‘procedural fairness’–such as Articles VI and III for due process and transparency–in the GATS have ambiguous expressions such as ‘reasonable’, ‘prompt’, ‘adequate’, of ‘appropriate’. While they have not yet been clearly interpreted due to the lack of enough WTO jurisprudence, the similar concept of the ‘Minimum Standard of Treatment’ including ‘Fair and Equitable Treatment’ developed along with the customary international law in the investment agreements would likely to provide a good guidance to the management of GATS obligations. Then how can make the lessons from the investment regime be ‘practicably contributable’ to the GATS? If the international investment law is regarded as ‘the relevant rues of international law’ during the dispute settlement procedures, it may have a practical influence on the GATS interpretation according to DSU Article 3.2. Despite a debate on how to interpret the VCLT Article 31(3)(c), the ILC report to see it as a method for ‘systemic integration’ and the recent WTO jurisprudence suggest the concept of ‘common understanding’ of the WTO members regarding other relevant rules of international law.