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The Possibility of Investor-State Dispute under Korea US FTA in relation to Korean Environmental Impact Assessment: A Lesson from Bilcon v. Canada Case under NAFTA

  • Journal of Environmental Impact Assessment
  • Abbr : J EIA
  • 2012, 21(4), pp.525-541
  • Publisher : Korean Society Of Environmental Impact Assessment
  • Research Area : Engineering > Environmental Engineering

Taehwa Lee 1

1연세대학교

Accredited

ABSTRACT

This study aims to investigate the possibility of Investor-State Dispute under Korea US FTA in relation to Korean environmental impact assessment scheme. The study analyzes the Investor-State Dispute case between Bilcon of Delaware and the government of Canada. The case study shows that Bilcon challenged Canada with violations of NAFTA 1102, 1103 and 1105, arguing that Canada treated Bilcon in an arbitrary and discriminatory manner. The study analyzes two different scenarios that Korea could face with arbitration for alleged breach of its obligations under the Korea US FTA in relation to EIA scheme. From analyzing the case study in relation to two different scenarios, the study finds that problems previously identified and associated with EIA scheme in Korea could directly or indirectly cause Investor-State Dispute Settlement process between Korea and American investors. The study concludes that the risk of violating Korea US FTA related with Korean EIA could be reduced by creating Korean EIA scheme in a transparent and unarbitrary manner which guarantees fair public participation and elaborating the concrete meaning of sustainable development in EIA law.

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This paper was written with support from the National Research Foundation of Korea.
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