韩国自由贸易区：对GATS V协议和双边投资条约中的新方法的意义

发布时间：2016-03-18 12:35

Abstract摘要

本文重点介绍了欧盟及其成员国之间的最近结束的自由贸易协议的一部分的，提供的服务和投资的功能，以及共和国其他部分的韩国。这项协议是由欧盟在其区域贸易协定采用了新的调度方法的早期例子。而不是孤立的服务和投资成关注不同的部分，对于这些因素的规定合并为设立和国民待遇的单一和综合的方法。
概述该协议的主要特点后，，我们分析各方采取的服务和投资自由化的办法。最后，这种做法的影响将在贸易上的WTO总协定的光经济一体化协议的服务规则考虑，和现有的双边投资条约各方之间运行。
This paper focuses on the services and investment features of the recently concluded free trade agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part. This agreement is an early example of a new  scheduling
 approach adopted by the European Union in its regional trade agreements. Rather than isolating services and investment into diffferent sections for attention, the provisions for these factors
 are merged into a single and integrated approach for establishment and national treatment.
After outlining the primary features of the agreement, we analyze the approach taken by the parties to services and investment liberalization. Finally, the implications of this approach are
 considered in light of the WTO General Agreement on Trade in Services rules for economic integration agreements, and existing bilateral investment treaties operating between the parties.

Introduction 介绍

欧盟已商定的服务和投资承诺按新办法最近的自由贸易协定1（自由贸易协定）。
这个设想供应2的模式，由欧盟刻有其自身的市场准入承诺的手段，以不同的结构。 3这种新的模板是在“服务贸易，建立与电子商务”欧盟及其成员国之间的自由贸易协定一章中的一个部件，和共和国其他部分的韩国，（显示器在下文中，欧盟 - 韩国自由贸易协定或协议）。在这里，fijirst识别的变化是，总协定关于服务贸易（GATS）由指定供应的模式已经从四种模式减少到三个。服务贸易总协定模式二（境外消费）已经合并到服务贸易总协定模式一为服务的“跨境”供应。这种新的单模基本上涵盖不意味着任何形式的投资服务的所有交付。
The European Union has negotiated its services and investment commitments in recent free-trade agreements 1 (FTAs) according to a new approach.

This envisages a diffferent structure for the modes of supply 2 and the means by which the EU inscribes its own market access commitments. 3 This new template is on display in the ‘Trade in Services, Establishment and Electronic Commerce’ chapter of the Free Trade Agreement between the European Union and its Member States, of the one part, and the Republic of Korea, of the other part (hereinafter, the EU – South Korea FTA, or the Agreement). Here, a fijirst recognizable change is that the modes of supply designated by the General Agreement on Trade in Services (GATS) have been reduced from four modes to three. The GATS mode two (consumption abroad) has been merged with the GATS mode one for ‘cross border’ supply of services. This new single mode essentially covers all delivery of services that do not entail investment in any form.
For the other two modes, commercial presence (GATS mode three) and presence of natural persons (GATS mode four), the approach contemplates the scheduling of commitments, as in keeping with the structure of scheduling in the GATS, but with the distinguishing feature that the defijinedscope of
 the modes here are not limited to trade in services – the limiting scope of
 the GATS Agreement. 4 In the EU approach, it is ‘investment’ that is being scheduled – and for that purpose, investment is defijined as extending to ‘all economic activities’. 5 In short, services are a part of what is being scheduled as an aspect of cross-border investment, but are no longer defijining the scope of what is being committed.
This approach may be advancing the relationship between services and investment in a regional trade agreement and in its relationship to existing bilateral investment agreements between the parties. One could position theagreement as a hybrid somewhere between a services liberalization agreement (a trade agreement, as in the GATS Article V) and a bilateral investment agreement (a bilateral investment treaty, as in a BIT). The trade agreement aspect of scheduling market access is here, but not through the exclusive lens of ‘services and service providers’ modes of supply. Rather, the subject of liberalization is that of economic activity delivered in the form of investment which encompasses the range of services deliverable under the mode of commercial
 presence. On the other hand, while a traditional (European) bilateral investment agreement does not schedule for market access of investment, it does provide for norms of investor and investment protection in the form of fair and equitable treatment and compensation for expropriation. This is a characteristic that the EU – South Korea Agreement is currently lacking.
In this sense, and in contrast with the approach found in the North America Free Trade Agreement (NAFTA), we cannot say that the EU – South Korea Agreement contains a ‘BIT within a trade agreement’.

I. EU - South Korea FTA – General Aspects

II. Services and Investment in the EU – South Korea FTA
II.1 WTO Context
II.2 Chapter Seven on Trade in Services, Establishment and E-Commerce
III. Implications
III.1 The GATS regime and the exception provided by GATS Article V
III.2 Comparative analysis of the national treatment requirement

IV. Conclusions总结

We have examined the EU’s approach in including investment liberalization as part of an FTA through the expansion of activities under the notion of ‘establishment’. This has been done with an eye toward the application of theWTO GATS provisions governing the formation of economic integration agreements and the relationship that results between the establishment provisions of the FTA and the existing EU Member State BITs with South Korea. Examining the GATS Article V provisions for economic integration, we can see that there are limits to how extensive such an agreement can be and still fijind coverage under the regional exception provisions. This should not be so surprising. What is perhaps more surprising is that there are analytical possibilities in the ‘afffecting trade’ standard whereby provisions not so directly related to GATS-like activities may fijind some claim on the value of the economic integration exception. This seems the stronger possibility for investor protection types of provisions that are located within an Article GATS V agreement.We doubt this is conceivable for pure investment commitments, but are not entirely discounting the possibility.
Our comparative analysis of the national treatment clauses reveals that, for the admission phase, the potential for overlap of the national treatment provisions appears to be limited to those instances in which the applicable BIT provides for unconditional market access. Among the sampled agreements, this seems the case of the Czech Republic BIT with South Korea. The overlap exists
 to the extent that clauses envisaging national treatment for ‘investments’ may
 cover admission via the acquisition of shares, where such a requirement is coupled with an obligation to admit foreign investment without any further qualifijication ( i.e. , without subjecting such admission to the legislation of the host country).
Where this is not the case in regard to the admission phase – as it appears not to be in the majority of the sampled BITs, 74 the disciplines arising from the EU – South Korea FTA and those of the EU Member States’ BITs with South Korea should be viewed as complementary to each other, given their operation in separate spheres. In fact, through the EU – Korea FTA, EU Member
 States and South Korea have exchanged binding commitments in respect of the entry and establishment of investments in the other Party, an area in which no establishment commitments had so far been exchanged.
Thus one turns to the potential for overlap of national treatment obligations under the two frameworks, and its signifijicant expansion in relation to the post-establishment stage of investments. A determination of this overlap specifijically depends on the content of the national treatment requirement in the EU Member States’ BITs. This is usually broad, as it encompasses (at least) ‘investment,’ and may extend to the management, maintenance, use, enjoyment or disposal of each Party’s investments, as well as compensation for
 losses (in fewer instances). Another factor in determining the potential overlap of the national treatment provisions is the extent to which the obligations under the BITs may cover limitations scheduled for national treatment in the EU – South Korea FTA. An example might be scheduled restrictions on real estate and nationality requirements. With this limitation in mind, such an
 overlap – and some potential inconsistency between the two frameworks – cannot be excluded. 
While this paper has not focused directly on the potential inclusion of investor protection principles into an evolving EU – South Korea FTA, we see these developments will have implications for the scope of coverage under GATSArticle V, as well as for the operation of the GATS national treatment provisions for scheduled sectors. This will be the subject of additional discussion as these elements emerge with more clarity over time.

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