JEAIL > Volume 12(1); 2019 > Regional Focus & Controversies
Research Paper
Published online: May 30, 2019
DOI: http://dx.doi.org/10.14330/jeail.2019.12.1.06

Two Bites at the Same Apple? ‘Derivative’ ISDS Proceedings in the Revised Korea-US FTA

Jaemin Lee
Seoul National University School of Law, 1 Gwanak-ro, Gwanak-gu, Seoul 08826 Korea.
Corresponding Author: jaemin@snu.ac.kr

ⓒ Copyright YIJUN Institute of International Law
This is an Open Access article distributed under the terms of the Creative Commons Attribution Non-Commercial License (http://creativecommons.org/licenses/by-nc/3.0/) which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original work is properly cited.

Abstract
The 2018 amendment of the KORUS has made an important stride in the investment chapter of the agreement. In particular, the amendment introduced new provisions to regulate multiple, subsequent or parallel ISDS proceedings involving the same governmental measures. The new provisions, however, arguably contain inherent limitations. They will be able to address only some of the multiple, subsequent or parallel proceedings. They then leave open a possibility where essentially the same investor raises a series of ISDS proceedings against essentially the same measures by an advance planning on the scope of ‘measures’ and/or form of ‘control.’ This means that the new provisions will not be able to fully prevent multiple, subsequent or parallel proceedings in the same context or circumstances from taking place, as was originally intended by the drafters. More detailed wordings and elaborations would have helped to achieve the objective. Future Joint Committee discussions or additional amendments should consider such clarification or elaboration.

Keywords : Investment Arbitration, ISDS Proceedings, ISDS Reform, Korea-US FTA, Parallel Proceedings, Subsequent Proceedings, Multiple Proceedings

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