국제투자법에서 주식과 기업의 보호에 관한 고찰

• 영문명: A Study on the Protection of Stock and Enterprise in International Investment Law - Focus on the Meaning of Owns or Controls -
• 발행기관: 경희법학연구소
• 저자명: 김여선(Kim, Yeu-Sun)
• 간행물 정보: 『경희법학』제46권 제1호, 9~35쪽, 전체 27쪽
• 주제분류: 법학 > 민법
• 파일형태: PDF
• 발행일자: 2011.03.30

영문 초록

In the case of international investment, it is very important regime for a host country to either establish enterprise or participate in investment capital. Thus, protecting enterprise and stocks is viewed as necessary for international investment. Enterprise and stock protection are subject to the law of international investment. Also, investors and enterprise as shareholders may call upon ICSID (International Centre for Settlement of Investment Disputes) to implement ISD (Investor-State Dispute Settlement) where they are damaged due to a host country s breach of its obligation. If international investment laws protect both enterprise and stocks, there is no theoretical problem in protecting them. In reality, however, because most international investment laws provide that only stocks are subject to legal protection, there are some debates over the protection for enterprise. Indeed, the laws protect stocks by defining them as a form of proprietary assets. Also, stocks owned by foreign investors may be protected regardless of whether a host country’s enterprise owns them or enterprise does. In this case, rights of shareholders to bring to claim are derived from a stockholder’s right, which enables shareholders to gain economic benefits from enterprise. If those rights are infringed or restricted by a host country, it may be subject to ISD because it isregard as taking. On the contrary, there is a controversy about whether it is possible to approve rights of enterprise to bring to claim as rights of shareholders to bring to claim. As for rights of enterprise to bring a claim, it is important to note that domestic enterprise cannot claim responsibility for damages against its government because it is regarded as the host country’s enterprise, corresponding to the local companies standard. For that reason, international investment laws provide more accurate clause of protecting enterprise. International investment laws protect not only stocks, but also enterprise. That is, the clause of the definition of investment categorizes enterprise as a type of assets, defining the requirements of ownership or control of it. This means that the enterprise s nationality should be judged on its ownership or control. If investors own or control enterprise, they can call for ISD because it is regarded as a foreign enterprise. Recently, it has been increased to use the BIT, which includes the requirements of ownership or control of enterprise as a type of assets. This aims to grant enterprise rights to claim ISD. No standard provides a perfect tool for resolving the problem with protecting enterprise in international investment laws. This is because international investment laws do not provide accurate legal rules, because most multinational enterprise has a complicated ownership relationship and governance structure, and because arbitration and tribunal are inconsistent. Korean BIT and FTA define both stocks and enterprise in order to protect enterprise. The FTA between Korea and EU also provides the standard for defining ownership and control of enterprise. When determining ownership relation, control, nationality of enterprise, it is necessary to consider the regulation of shell companies. It might be possible to permit establishing the shell companies in terms of investment deregulation. However, it must be implemented to avoid the abuse of permission that may impede the fundamental function of international investment laws. Thus, the regulation should be calibrated by balancing interests on individual cases.

목차

l. 서설

ll. 주식의 보호와 범위

lll. 기업 보호와 소유 또는 지배의 기준

lV. 결론

키워드

국제투자법 주식보호 기업보호 투자자와 정부간 분쟁해결 국제투자분쟁해결센터 투자정의조항 양자간투자협정 소유 또는 지배 International Investment Law protection of stock protection of enterprise ISD ICSID definition of investment clause BIT owns or controls.