미국 엑슨-플로리오법의 특징 및 시사점

초록

This study analyzes the pubic interest test under the “Exon-Florio Amendment”, with the objective of evaluating the mechanisms of governing foreign capital. It is argued that the public interest test under this law has trade-restrictive attributes, as it is applied only against foreign investors. An in-depth case study of foreign M&A in the telecommunications sector was conducted as public interest tests under both Section 310 of the Telecommunications Act and the Exon-Florio Amendment are applied. This study makes the following conclusions. (i) The real effect of the public interest test lies in delaying the domestic market entry of foreign capital; requiring Network Security Agreements (NSA) only on foreigners may have both positive or negative effect on the national interest. (ii) As qualitative regulation, the public interest test may be used in place of quantitative regulations no longer permissible under WTO rules; however its implementation must be carefully considered since the concept of public interest and its review process may be viewed as barriers to trade. (iii) Thus, the concept of public interest, if clarified or stipulated explicitly into law, may compromise regulatory flexibility but can provide for greater institutional transparency and market incentive for foreign capital.

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