국제투자중재에서의 공기업 관련 국제법적 문제

Legal Problems Concerning State-Owned Enterprises in International Investment Arbitration

Since the mid-1990s, there has been a significant increase in the number of international investment disputes and dozens of new investment disputes are brought to international arbitration every year. Moreover, the investors tend to submit the claims directly against the host states when the dispute arises out of a contractual breach by state-owned enterprises, and Dayyani v. Korea is one of them. In Dayyani v. Korea, Korea has become a respondent state due to the conduct of the state-owned entity, and this kind of investment disputes raises a number of issues concerning the status of state-owned enterprises in public international law. However, problems related to the status of state-owned entities in international investment arbitration have not been discussed in much detail so far, and moreover, the existing research in this field is usually focused on the protection of investors or the substantive standards of treatment. Therefore, it is important to identify some common problems regarding the relationship between state-owned enterprises and the host states that could be raised at each stage of arbitral proceedings. By looking at the issues regarding personal jurisdiction, state responsibility, and the enforcement of arbitral awards, this thesis seeks to explore the ways that the host states, including Korea, could deal with these problems in arbitral proceedings. First, with regard to the establishment of the jurisdiction of ICSID, there can be two kinds of respondents in investor-state arbitration: state-owned company as a respondent, or host state as a respondent state. Regarding the latter, it is questionable whether the host state could be responsible for the breach of investment contract by state-owned enterprises. In order to answer this question, two elements, which are (i) attribution of conduct to the host state, and (ii) breach of an international obligation, should be analyzed. Also, regarding the execution of arbitral awards, the question arises whether the properties owned by state-owned enterprises could enjoy immunity from execution when the investor intends to enforce an arbitral award against them, in case the award that was rendered against the host state is not executed voluntarily. Overall, it could be concluded that state-owned enterprises under municipal law might be considered as state organs under international law, and thus, it is possible for the host state to be a respondent state and be held internationally responsible for the act of its state-owned entities. Accordingly, it is required to look at the factors that are taken into account when examining the relationship between state-owned enterprises and the host states in each problems. The decisive factors include, in general, the ownership of corporation’s shares, the power to appoint members of the board of directors, and the control over corporation by approval of plans. In addition, when it has been established that the host state is responsible for the act of its state-owned enterprise, it could be understood that the close relationship between state-owned enterprise and the host state has already been recognized. And thus, it raises a question whether the host state might be able to argue at the enforcement stage that the state-owned entity exists separately from the state so that its assets cannot be equated with those of the host state. The host state might be able to make such argument as the threshold required for identifying the state-owned entity as the host state at the enforcement stage is higher than that required for establishing jurisdiction or state responsibility of the host state. Moreover, even if this argument is not accepted and as a result, the properties of the state-owned entity is equated with those of the host state, the host state might still be able to argue that noncommercial assets of the state-owned enterprise are immune from execution. Considering that investment arbitration claims are continuo