양자간 투자협정의 발전과 국제관습법의 형성가능성

Abstract

Developing countries have today been pushed toward liberalization by the need to attract capital in the form of foreign investment, given the reduced availability of commercial loans as a result of the third world debt crisis and the massive flight of domestic savings from developing countries. One component of the move toward liberalization is the conclusion of bilateral investment treaties (BITs) between developing and developed countries. BITs protect investment by investors of one party in the territory of the other party. More than 160 countries have concluded at least one BIT and a total of more than 1300 such treaties have been signed, all involving at least one developing country. To the extent that these treaties have been concluded in large numbers, cover most countries in all regions and have similar provisions, a question that may be raised is whether they have an influence in shaping and clarifying the principles and concepts of international law applying to foreign investment. Some commentators on BITs view them as vehicles that entrench customary principles of international law relating to the protection of foreign investment. In this paper, I will investigate the effects of BITs in the formulation of customary international law in the areas of the protection of foreign investment. I think that the frenetic conclusion of BITs is occasioned by the uncertainty that pervades international investment law since the advent of the developing countries on the international scene, and that international law has not kept pace with the developments that have taken place in the last thirty years in foreign direct investment. To the extent that this is so, I contend that each BIT is nothing but a lex specialist between parties designed to create a mutual regime of investment protection, and that the proliferation of BITs will help to confirm the present and indicate the possible future trends in international foreign investment law.