사실상 국가기관(de facto state organ) 행위의 국가귀속 문제 - 엘리엇 사건과 메이슨 사건의 비교를 중심으로 -

Attribution of the Conduct of De Facto State Organs to the State ‒A Comparison of the Elliott and Mason Cases‒

In June 2023 and April 2024, arbitral awards were rendered in the Elliott and Mason cases, both Investor–State Dispute Settlement (ISDS) proceedings brought against Korea arising from the same factual background. Although issued only a few months apart and addressing the same issues, the two arbitral awards drew attention for reaching divergent conclusions on a particular point. Both tribunals found that Korea had breached the minimum standard of treatment obligation under the Korea–US Free Trade Agreement (KORUS FTA). However, they reached different conclusions on whether the conduct of the National Pension Service (NPS) was attributable to Korea. In determining whether the NPS qualifies as a de facto state organ under international law, it is necessary to examine the requirements for such qualification. A review of arbitral awards shows that no uniform criteria have been established, but operational dependency could be regarded as the most significant factor. However, the arbitral award in the Elliott case found that the NPS constituted a de facto state organ, without sufficient examination of its completely dependency on the state and lack of operational autonomy. As illustrated by the Elliott award, attributing the conduct of Korean state-owned enterprises to the state could be highly disadvantageous to Korea. It is therefore essential to emphasize their operational autonomy or independence in future ISDS cases.