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Institutionalising Reflection of National Elements in the International Investment Treaties, from the Public Law Perspective

Korea has been establishing international investment treaties through free trade agreements and bilateral or multilateral investment treaties. However, the legal doctrines on which these treaties are arguably incompatible with domestic law or national interests. Furthermore, critical commentators contend that these treaties are channels through which global standards are grafted into Korea’s domestic legal system. Nevertheless, this paper demonstrates that domestic legal elements or national interests are reflected in the international investment agreements, although this could be like passing a camel through the eye of a needle. Investment policy-makers usually tend to comply with international standards concerning investment protection schemes. However, the preceduralised treaty-making allows channels through which various perspectives can influence the treaty-making led by a particular department, from discussing trade policies to the legislative consent. Of course, this domestic influence cannot change the fundamental principle of international investment law. However, the national influence can have a small but not negligible impact on the flow of international investment law, which could ultimately contribute to secure a balance between investment protection and legitimate regulatory powers in the longer term.