Challenges and opportunities for the national constitutional system in dealing with the global investment regime: a case study of the indirect expropriation doctrine and investor-state arbitration under the free trade agreement between the Republic of Korea and the United States of America
In 2011, Korea ratified the Korea-US Free Trade Agreement (KORUS-FTA). This treaty remains controversial in Korean society, particularly because many Koreans claim that the indirect expropriation doctrine under investor-state arbitration in the investment chapter will allow global investors to challenge governmental regulation justified by the Korean constitution. Despite such criticism, the KORUS-FTA indirect expropriation doctrine and the Korean constitutional property doctrine share more than might be expected in practice. However, this substantive doctrinal convergence between national and global legal systems does not eliminate all risks of conflict between the nation-state and global investors; conflicts can occur whenever two actors interpret the same text differently. Once an investment dispute happens, independent investor-state arbitration reviews governmental action according to independent interpretative rules. Systems theory suggests that nation-states can turn such global challenges into opportunities by taking contextual control over global investment in relying on the global investment legal system of the global investment regime. The nation-state can convince global investors that the nation-state respects transnational investment mechanisms, whilst indirectly imbuing norm-making with minimum national interest without incurring serious damage to its reputation. To be specific, the nation-state can attract more foreign investors by accepting the indirect expropriation doctrine and the investor-state arbitration respected by global investors. Simultaneously, the nation-state can secure minimum control over global investment under legitimate regulatory power reflected in the same indirect expropriation clause. In addition, the nation-state can guide the investment tribunal to secure a balance between investment protection and the regulatory power of the host state by prescribing the proportionality principle. Contextual control can be a sub-optimal choice for the nation-state in the sense that it avoids a worst-case scenario by securing proportionality and predictability. In order to make this measure more effective, the current global investment legal system needs to secure more commensurate autonomy or autopoiesis by furthering simultaneous and balanced structural coupling with a greater variety of social powers. In this context, global constitutionalism provides national constitutional tools for the nation-state; specifically, democratic participation in national treaty-making procedures and autopoietic structuralisation of the investment arbitration mechanism can make the substantive contents and application of global investment law fairer and more acceptable, not only to global investors and strong states, but also to social movements and smaller countries. In the context of the KORUS-FTA, the Korean government needs to make the treaty terms of indirect expropriation clearer through democratic participation. At the same time, the Korea should pay attention to making arbitration process reflexive to more various social interests, whilst protecting its operation from inappropriate influences. Such measures can prevent KORUSFTA tribunals from making extremely unacceptable decisions to actors of the global investment regime, including the Korean government, although they could not guarantee ideal decisions that stratify all actors perfectly.