BIT·FTA상 외국인투자심사 실행에 관한 연구

Abstract

Countries with foreign investment screening mechanism have developed practices to avoid international investment disputes. These practices include using security exceptions, exceptions to dispute settlement provisions, and schedules to Annex regarding non-conforming measures in investment agreements. These practices do not specify specific national security requirements and are subject to full self-judgment. Countries with a long history of foreign investment screening, such as the United States, Canada, and Australia, actively use these practices to exclude foreign investment screening from international agreement obligations. These countries interpret the national security exception jurisprudence as applying to foreign investment screening, meaning that foreign investment screening is entirely self-judged.
 However, South Korea does not have a consistent approach to foreign investment screening in its Bilateral Investment Treaties (BITs) and Free Trade Agreements (FTAs). The security exception clause in these agreements is different in each agreement, and the contents of the reservations are not uniform. However, it can be interpreted that Korea has decided to treat foreign investment screening as an exception to international law, since it joined the Regional Comprehensive Economic Partnership (RCEP), which stipulates that the screening regime shall not be subject to the dispute settlement provisions.
 Foreign investment screening is likely to become more important as a policy tool in the era of expanding national security. The concept of national security has evolved from being applied only in exceptional emergencies such as war to encompassing more permanent situations such as economic security, high-tech protection, supply chain crisis response, and climate change. State measures to protect national security have also become more permanent. Given these circumstances, it is important to reconsider whether it is appropriate to treat foreign investment screening as an exception to international law. Allowing foreign investment screening as an exception to international law could lead to a crisis in the international legal system due to potential abuse of this exception. However, from the government's perspective, securing policy space for foreign investment screening can be advantageous in effectively addressing the growing threat to national security. Therefore, it is crucial to contemplate the stance and standards that should be established for the foreign investment screening practice in Korea moving forward.