안성주택과 중국의 ICSID 중재사건에 관한 사례연구

• 영문명: Comments on the ICSID Award Ansung Housing v. People s Republic of China
• 발행기관: 한국중재학회
• 저자명: 강병근(Pyoung-Keun Kang)
• 간행물 정보: 『중재연구』 제27권 제2호, 37~57쪽, 전체 21쪽
• 주제분류: 사회과학 > 무역학
• 파일형태: PDF
• 발행일자: 2017.06.30

영문 초록

On 9 March 2017, a Tribunal constituted under the ICSID Convention issued its ruling in the case of Ansung Housing v. People s Republic of China, dismissing with prejudice all claims made by the Claimant, Ansung Housing Co., Ltd., in its Request for Arbitration, pursuant to ICSID Arbitration Rule 41(5). Ansung Housing v. PRC has drawn attention since it is the first case where an investor with Korean nationality initiated an ICSID arbitration on the basis of the Korea-China Bilateral Investment Treaty (BIT) as amended in 2007 between the Republic of Korea and the People s Republic of China. The Tribunal finds that its ruling is about a lack of jurisdiction of the ICSID and of its own competence as well as regarding manifest lack of legal merit due to a lack of temporal jurisdiction, since a Respondent’s Rule 41(5) objection is concerned with the three-year limitation period in Article 9(7) of the Korea-China BIT. The Tribunal held that, under Article 9(7) of the Korea-China BIT, the limitation period begins with an investor’s first knowledge of the fact that it has incurred loss or damage, not with the date on which it gains knowledge of the quantum of that loss or damage. Finally, the Tribunal held that Ansung submitted its dispute to ICSID and made its claim for purposes of Article 9(3) and (7) of the BIT after more than three years had elapsed from the date on which Ansung first acquired knowledge of loss or damage and that the claim is time-barred and, as such, is manifestly without legal merit. It remains to be seen whether the aggrieved Claimant initiates annulment proceedings before an ad hoc committee under the ICSID Convention. It is quite interesting to see whether the decisions by the Tribunal should be reversed on the basis of the Claimant’s arguments as to the start date as well as the end date of the limitation period under the Korea-China BIT.

목차

Ⅰ. 서 론

Ⅱ. 사실관계 개요

Ⅲ. ICSID 중재규칙 제41조 제5항의 적용 여부

Ⅳ. 한중 BIT 제9조 제7항의 적용 여부

Ⅴ. 결 론

키워드

본안전 항변 ICSID 중재규칙 제41조 제5항 한중 BIT 제척기간 관할권 Preliminary Objections ICSID Rule 41(5) Korea-China BIT Limitation Period Jurisdiction