국제투자분쟁에서 조세조치의 실제 적용에 관한 소고

Abstract

This thesis examines the intricate relationship between taxation measures and investment agreements, highlighting the jurisdictional issues arising from clauses that exempt taxation measures from these agreements. These exclusion clauses are designed to delineate the jurisdictional boundaries of arbitral tribunals, specifying that disputes arising from taxation measures falling within these exclusions may be beyond their jurisdiction. This becomes particularly relevant when assessing whether taxation measures, excluded from the scope of investment agreements, are bona fide taxes. If they are not, the exclusion may not apply, potentially bringing the dispute within the tribunal’s purview.
 Conversely, taxation measures enacted under a state’s sovereign authority, even in the absence of specific exclusion clauses, are generally unlikely to be deemed violations of investor protection obligations, such as against expropriation or breaches of fair and equitable treatment standards. The critical questions is whether the contested taxation measures are genuinely aimed at raising public revenue in a fair and equitable manner, or if they serve to discriminate against or penalize foreign investor unfairly in the guise of taxes.
 This distinction is important for two reasons. First, bona fide taxation measures supported by exclusion clauses do not give rise to jurisdictional authority for an arbitral tribunal. Second, the absence of such clauses does not necessarily imply a breach of the host country’s obligations, provided the taxation measures are legitimate exercises of its sovereign power.
 The thesis argues that the mere presence of exclusion clauses should not automatically legitimize all taxation actions by the host state, nor should the absence of such clauses deter the state from implementing necessary tax policies aimed at public purposes. In international investment disputes concerning taxation, the core issue is whether the taxation measures were unfairly aimed at discriminating or penalizing foreign investments, rather than achieving a legitimate public purpose or deviating from the measures promised at the time of investment attraction. Overreliance on exclusion clauses to apply clearly unreasonable measures in the guise of taxation measureless could grant jurisdiction to the arbitral tribunal. However, in the absence of such conditions, and regardless of the presence of exclusion clauses in the investment agreement, host countries should confidently implement necessary tax policies for public objectives.