역외적용 및 로컬서버요건의 통상규범양립성에 관한 고찰

초록

This study assesses two clauses included in recent amendments of bills governing the telecommunications and broadcasting services, namely those of the comprehensive extraterritorial jurisdiction and local server requirement. The central concern is whether those clauses are compatible with the substantive rules under the GATS and the KORUS FTA. Our study concludes that despite the lack of provisions regarding extraterritorial jurisdiction in the GATS and the KORUS FTA, the extraterritorial jurisdiction clause in its entirety is unlikely to be justified in light of the fundamental spirit of the WTO Agreement and its jurisprudence. Likewise, the local server requirement is highly likely to contravene the market access and national treatment obligations under the GATS and the KORUS FTA. This is because the local server requirement leads to 1) total prohibition of foreign service providers’ cross-border supply of services by mandating the transfer of their permanent establishments (servers) to Korea; and to 2) de facto discrimination by distorting the terms of competition between foreign and local providers of like services. In contrast to recent media reports, the local server requirement may contravene the country's obligations under the KORUS FTA.

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