국제투자법상 투자의 개념과 가상화폐의 지위

The Definition of Investment under International Investment Law and the Status of Cryptocurrencies

The use of cryptocurrencies(virtual currencies) has exploded across the world in recent years, however, the term that refers to this new asset has not been settled yet. In addition, investment in cryptocurrencies has also been growing over the past years, and it raises the question whether cryptocurrencies could be protected under the international investment regime. In other words, it is questionable whether the investment in cryptocurrencies could be classified as “investment” under international investment law, and as investment disputes concerning investment in cryptocurrencies are likely to be raised soon, it is important to look at the definition of investment and the legal status of cryptocurrencies under the existing investment law. Thus, this article examines the characteristics of cryptocurrencies, and then analyzes the definition of investment under the investment treaties and arbitral awards. Several elements, including territorial link, that are controversial particularly in the case of cryptocurrencies are examined in order to find out whether the investment in cryptocurrencies itself might be fitted into the definition of investment. However, investment in cryptocurrency-related entities, institutions, or funds, which is similar to investment in foreign companies, is not addressed in this paper. Overall, it might not be able to give a definite answer to this question as the investment in cryptocurrencies can be made in various ways. Yet, it is likely that the investment in cryptocurrencies could be classified as investments under the international investment regime except in cases where the investors are only holding deposits of the cryptocurrencies in foreign cryptocurrency exchanges or financial institutions. Nevertheless, since the features of cryptocurrencies are constantly evolving, it is necessary to understand their features and the most important thing to consider would be how the relevant investment treaties define the term “investment”.