Legal regime of investments in the Russian Federation. Legal regime of foreign investment in Russia
IN INTERNATIONAL PRIVATE LAW
§one. The concept of foreign investment and the ways of their implementation in Russia. Guarantees and benefits for foreign investors.
§2. The legal status of a commercial organization with foreign investment.
§ 3. International mechanisms for the protection of rights foreign investors and the resolution of investment disputes.
§ 4. Legal regime of production sharing agreements.
§ .5 Legal regime of free (special) economic and offshore zones.
Foreign investment concept
And the ways to implement them in Russia.
General Provisions
States interested in attracting foreign capital adopt special legislation on foreign investment, whose purpose- providing foreign investors with guarantees and benefits.
Russia, China (which accounts for a quarter of all foreign investments), the countries of Southeast Asia, South America, and some African countries have such legislation. IN highly developed countries such as the United States or Japan, there is no special legislation on foreign investment - in such countries there is a national treatment for domestic and foreign investors.
There are also international agreements on the promotion and mutual protection of investments, the purpose of which is to provide international legal guarantees to investors from the respective country (guarantees of payment of compensation in case of nationalization, fair settlement of the dispute, etc.). Russia has already concluded more than 50 such agreements with all developed states, such as Great Britain, the United States, the EU countries, that is, with investor countries, from which Russia expects capital investments.
In the field of foreign investment regulation, the decisive role is played not by a conflict of laws, but by a substantive method of regulation.
In Russia, a system of state bodies has been created and is functioning to support foreign investment. Thus, at the federal level, under the Ministry of Economic Development and Trade of Russia, a specialized body was created - the State Investment Agency, the purpose of which is to perform the function of a "one window" for foreign investors (formation of a database investment projects and their support, legal services and registration, preparation of business plans, selection of potential partners, etc.).
Private investments are supported by international organizations - the International Bank for Reconstruction and Development, the European Bank for Reconstruction and Development, which, in accordance with their charters, either provide loans themselves, for example, for technical re-equipment, and in this case act as investors, or give guarantees to foreign investors, who invest in Russian enterprises. The activities of such organizations as the American Chamber of Commerce in Russia and the Union of the German Economy are also aimed at supporting investors.
On July 9, 1999, Russia adopted a new Federal Law "On Foreign Investments in the Russian Federation" (effective as amended by the Federal Law of December 8, 2003), from the moment of entry into force of which the previous Law "On Foreign Investments in the RSFSR" 1991 The practice of considering investment disputes is summarized in the information letter of the Presidium of the Supreme Arbitration Court of the Russian Federation of January 18, 2001 No. 58 "Review of the practice of resolving disputes by arbitration courts related to the protection of foreign investors."
Definition of foreign investor and foreign investment. In accordance with the Federal Law "On Foreign Investments in the Russian Federation »Foreign investors recognized: 1) foreign legal entities, as well as foreign organizations that are not legal entities; 2) foreign citizens, as well as stateless persons permanently residing outside the Russian Federation; 3) international organizations and foreign states.
Foreign investment is an investment of foreign capital in an object of entrepreneurial activity on the territory of the Russian Federation in the form of objects of civil rights belonging to a foreign investor, including in the form of money, securities, other property, intellectual property, as well as services and information. However, within the meaning of the Law, not every investment of foreign capital (foreign investment) should enjoy the same state support. Therefore, in addition to the concept of "foreign investment", the Law distinguishes the categories of "foreign direct investment", "investment project", "priority investment project".
It should be noted that the concept of "investment" is not purely civil law, it also carries a public law character. By defining, in accordance with an international agreement or on the basis of its domestic legislation, some activity as investment, the state extends to it a number of benefits (tax, customs, registration) in order to attract capital to the country's economy. In science, however, there is a reasoned position according to which investment relations are implemented within the framework of both absolute and relative relations. From our point of view (if we do not interfere with the substantive part of the discussion about the possibility of recognizing investment relations as an independent type of civil law relations), the provisions of international treaties on the protection of investments provide guarantees owners (to foreign investors) from unlawful withdrawal of this property the state. Therefore, in this part, these agreements govern civil (civil) relations.
Direct foreign investment is recognized: 1) the acquisition by a foreign investor of at least 10% of a share in the authorized (pooled) capital of a Russian business partnership or company; 2) capital investment in the fixed assets of a branch of a foreign legal entity established in the territory of the Russian Federation; 3) import into the territory of the Russian Federation of equipment (specified in Sections XVI and XVII of the TN VED CIS) with a customs value of at least 1 million rubles. (rubles are taken at the exchange rate as of the date of the adoption of the Law) under a lease agreement in which a foreign investor acts as a lessor. Note that we are talking specifically about the acquisition of a 10% stake, and not just shares of a Russian enterprise: a foreign investor must become a member of a commercial organization, which is associated with the need to amend the constituent documents of the organization and their registration.
The Federal Law "On Foreign Investments in the Russian Federation" provides guarantees mainly for direct investments. At the same time, such projects as the construction of large facilities, the purchase of an enterprise (as a property complex), loans to Russian companies do not belong to direct investments, and they are not subject to all guarantees and benefits under this Law, which does not contribute to attracting capital investments into the economy. countries.
Investment project- This is a justification of the economic feasibility, volume and timing of foreign direct investment, including design and estimate documentation. The law also distinguishes the category "Priority investment project", Which includes: 1) projects, the total volume of foreign investments in which is at least 1 billion rubles. (approximately $ 41 million); 2) projects in which the minimum share (contribution) of foreign investors in the authorized (pooled) capital of the enterprise is at least 100 million rubles. (about 410 thousand dollars). Such projects are subject to registration with the "federal executive body responsible for coordinating the attraction of foreign direct investment in the economy of the Russian Federation."
Methods for making foreign investments in Russia. There are four main directions in attracting foreign investment to Russia.
1. Investment of foreign capital in existing Russian organizations through the acquisition by foreign investors of a share (stakes) in the authorized capital of an already established Russian legal entity. In particular, most of the provisions of the Federal Law "On Foreign Investments in the Russian Federation" actually call on foreign investors to invest in the authorized (pooled) capital of Russian business entities and partnerships. Technical re-equipment of Russian organizations can also be carried out with the help of development international leasing when a foreign leasing company (investor) buys the necessary equipment ordered by a Russian organization and transfers this equipment to a Russian organization for rent. Leasing transactions in the amount of over 1 million rubles. are directly referred to by the legislation of Russia as foreign direct investment, and are subject to guarantees and benefits.
2. Creation of new business companies or partnerships with foreign capital participation. As practice shows, investors create organizations either in the form of a CJSC or in the form of an LLC. For example, when establishing a CJSC, an investor brings equipment to Russia as payment for shares during their initial offering.
3. Creation by foreign firms in Russia of their branches and representative offices and contribution of property to the fixed assets of such structures.
Organizations with the participation of foreign capital, or, in the terminology of the new Law, "commercial organizations with foreign investments", are created in the form of Russian legal entities - business companies or partnerships. Previously, the category used was “joint venture” (JV), with previous legislation treating the JV as a specific legal entity. The Institute of the joint venture ceased to exist since the adoption of the first part of the Civil Code.
4. Financing of specific projects by foreign investors, for example, construction of buildings and structures in Russia, purchase of enterprises, shareholdings Russian companies(if we are not talking about an initial placement), the provision of loans to Russian organizations, including targeted loans. However, according to the Law, such financing does not fall under the definition of direct investment.
Guarantees and benefits for foreign investors
The legal regime for the activities of foreign investors cannot be less favorable than the regime for the activities of Russian investors. Moreover, foreign investors enjoy special guarantees under the Foreign Investment Law. All foreign investors, regardless of whether they make direct or other investments, have the following guarantees (in fact, guarantees mean rights):
The right to compensation for losses caused to him as a result of illegal actions (inaction) of state bodies;
The right to cede their claims to another person and transfer the debt to another person (first of all, this means the transfer of the investor's rights to his state in connection with the investment insurance agreement concluded between them);
The right to compensation for the nationalization and requisition of property;
The right to a proper resolution of a dispute in court or arbitration;
The right to free transfer abroad of income from investment activities and to unimpeded export outside Russia of property and information previously imported as an investment;
The right to purchase securities, rights to land plots, natural resources, real estate in accordance with Russian law;
The right to participate in privatization.
As you can see, many of the above guarantees (rights) are of a general nature for Russian and foreign investors and were enshrined in the general civil legislation of the Russian Federation even before the adoption of the Law.
Only those foreign investors who implement priority investment projects enjoy: 1) customs privileges in accordance with the customs and tax legislation of the Russian Federation; 2) guarantees against unfavorable changes in legislation.
Customs incentives consist in the exemption of property imported into Russia as an investment from customs duties and VAT, provided that the goods: 1) are not excisable; 2) relate to fixed assets; 3) are imported within the timeframes established by the constituent documents for the formation of the authorized (share) capital. Such goods are imported in the conditional release mode, that is, the benefits will be canceled if the goods are not used as a contribution to the authorized capital (for example, they are sold).
According to Art. 149, 150 of the Tax Code of the Russian Federation, technological equipment and cash deposits imported by a foreign investor into the Russian Federation as a contribution to the authorized (pooled) capital of organizations are exempt from VAT. Note, however, that neither in the RF Government Decree No. 883, nor in the RF Tax Code, the granting of benefits is associated with “priority investment projects”.
Guarantee against adverse changes in legislation(the so-called stabilization, or " grandfather clause» - grandfather "s clause) is that if regulations of the Russian Federation are adopted, which lead to an increase in taxes and customs payments, establish bans on the activities of a foreign investor, thereby worsening his position in comparison with that which existed at the date of the start of financing an investment project, such regulatory acts are not applied to the investor during the payback period of the project, but not more than seven years from the beginning of the project financing. "Grandfather's clause" does not apply if changes are made to the legislation in order to protect the constitutional order, health, morality, the rights of others, defense and security of the state.
If a foreign investor fails to fulfill his obligations to implement priority investment projects, he loses the benefits provided to him by the "grandfather clause", and the amount of funds not paid as a result of the clause is subject to return to the budget. However, there may be problems with the implementation of the provisions of the Law on the "grandfather clause", since according to the Tax Code of the Russian Federation, any taxation issue is regulated exclusively by the legislation on taxes and fees.
- the concept and types of foreign investment;
- the status of foreign investors;
- guarantees for foreign investments.
― concept and types of foreign investment;
The concept of investment is key in investment law, since any litigation begins with determining whether a particular investment is an investment or not. Where can we find the concept of investment? In national legislation or in international agreements (bilateral - BIT; multilateral - MIT).
Usually, investments are understood as tangible and intangible values of legal entities and individuals of one state, which are exported from this state to the territory of another state in order to make a profit.
According to Russian legislation, foreign investment is understood as an investment of foreign capital in an object of entrepreneurial activity on the territory of the Russian Federation. Under the 1999 Law, not all investments are required to enjoy the same support. Therefore, in addition to the actual term "investment" there is also the term "foreign direct investment" and the term "priority investment project". According to the law, priority investment projects include projects with a total cost of 1 billion rubles, where the share of a foreign investor is at least 100 million rubles.
The concept of investment differs everywhere - it may be broader, it may be narrower. The broadest understanding of investment is found, as a rule, in bilateral agreements on the protection and promotion of investment. Russia has concluded more than 50 such agreements. An example from the Agreement between Russia and Japan, concluded in 1998: “investment is understood as the investment of investors from one country on the territory of another” (ie, we see that it is a very broad definition).
Most often it is customary to divide investments into
Direct- investments that make it possible to exercise control over the enterprise;
Portfolio- the investor, through the acquisition of assets in the form of securities (shares, bonds), does not have the ability to exercise management control.
― the status of foreign investors;
Who is an Investor? An investor is one who invests capital. In investment law, the concept of an investor is as widely different as that of an investment. As foreign investors, the legislation of the Russian Federation understands:
1) foreign legal entities, foreign organizations that are not legal entities;
2) foreign citizens, stateless persons permanently residing outside Russia, international organizations and foreign states;
3) organizations under the control of foreign investors, including those created on the territory of the Russian Federation.
Many states seek to use foreign resources. But the factors of the negative influence of foreign participation are known: the establishment of control over domestic production. In Russia, in order to overcome such negative phenomena, the adoption of the Federal Law “On the Procedure for Making Foreign Investments in Business Societies of Strategic Importance for Ensuring the Defense of the Country and Security of the State” was of particular importance. This law includes a list of 42 sectors of the economy where the participation of foreign entities is possible only with the special permission of the Government Commission for the Control of Foreign Investments in the Russian Federation (KII).
Along with the question of whether a particular investment is an investment, the question very often arises whether this investor is foreign.
The case of Tokyo Tokeles v. Ukraine. The Ukrainian company has established a legal entity on the territory of Lithuania under the laws of Lithuania. The new legal entity has invested in Ukraine. A dispute arose. Ukraine argued: what kind of foreign investment is this? These are our people. And between Ukraine and Lithuania there is an agreement on foreign investment. The arbitration tribunal said the investor was Lithuanian.
Sufraki case... Sufraki was a Canadian citizen and invested in the UAE. Sufraki filed a lawsuit with ICSID based not on the BIT between Canada and the UAE, but on the agreement between Italy and the UAE. In confirmation of his nationality, he presented 2 passports, 5 certificates of nationality and a letter from the Ministry of Foreign Affairs. The UAE proved that in 1991 the investor changed his Italian citizenship to Canadian, and did not take measures to preserve his Italian citizenship. The arbitration tribunal said it did not meet the requirements for effective Italian citizenship. Therefore, the jurisdiction was rejected.
― guarantees for foreign investments.
What is the specificity of foreign investment legislation? This legislation must be comprehensive. It must be stable. Further, there are almost no conflict of laws in investment legislation (states try to regulate foreign investment in their country on their own). Investment legislation should establish a legal regime for foreign investors (national treatment, MFN, preferential treatment (exemption from taxes, duties, etc.)). In addition, the legislation on foreign investment is associated with the establishment of restrictions (exemptions from the provided regime) - most often it is a ban on investment in certain industries or enterprises. The latter is done, as a rule, to protect domestic producers.
Providing national treatment- foreign investors are provided with a regime no less favorable than domestic investors, that is, foreign investors are actually equated with domestic ones.
Providing most favored nation- that is, the regime is no less favorable than that provided to investors of another foreign state.
It is possible to use both modes simultaneously (Agreement between Japan and Russia. 1998).
According to the Law on Foreign Investments, the legal regime for the activities of foreign investors cannot be less favorable than the legal regime for the activity and use of the profit received from investments provided to Russian investors.
In Russia there is a so-called normative-attendance the procedure for investments, according to which prior authorization is not required for admission. The exception is investments in strategic areas - a license is required.
The Foreign Investment Act 1999 provides a number of guarantees for foreign investors:
Guarantee of legal protection of activities;
A guarantee of the use by a foreign investor (AI) of various forms of investment;
A guarantee of the AI's right to purchase securities;
Guarantee of AI participation in privatization;
A guarantee of the transfer of the rights and obligations of AI to another person;
Guarantee of ensuring the proper resolution of a dispute arising in connection with the implementation of investments;
A guarantee of the AI's right to unimpeded export of property and information outside Russia;
Guarantee of compensation for the nationalization and requisition of AI property, etc. (see law).
Guarantee of granting the right to land plots - for AI there are certain restrictions on the acquisition of land plots in ownership: they cannot have the right ZU ownership located in border areas or special territories (where strategic objects, military facilities are located). Special treatment in relation to the ownership of agricultural storage facilities. AIs cannot have ownership of such plots6 can only own such plots on a leasehold basis.
The grandfather or stabilization clause is a clause according to which the AI is provided with a guarantee against adverse changes in the legislation that was previously in force for it. But there are limitations: the reservation does not apply to changes that are made to legislation in order to protect the foundations of the constitutional order, morality, health, etc.
One of the most significant factors (if not the most important) influencing investment in any country in the world is the current regulatory framework, thanks to which the national regime for regulating investment work is determined and establishes uniform principles, methods and mechanisms for interaction of foreign investors as with economic agents. relationships, as well as with government agencies.
According to the statement of the President of the Russian Federation at the Council on Foreign Investment, there was a clear need for private investment, which means not just money, but investments that include high technologies that contribute to the creation of jobs.
For the development of the economy of any state, there are one of the positive phenomena. But when implementing investment projects in the realities of Russian legislation, numerous problems arise that are caused by the new investment institution, as for Russian legislation. Taking into account this factor, taking into account the last twenty years, the state has adopted normative legal acts, which have become the main ones, as well as implemented interstate agreements to regulate relations with foreign investors. Let us consider in more detail what these acts are and what is their legal nature and necessity, as well as what is the legal regime of foreign investment.
Legislative regulation of foreign investment
The legal framework and current legal doctrine in Russia implies the regulation of foreign investment both at the interstate and domestic levels.
Taking into account the main provisions of the current Constitution, the implemented international acts have supreme legal force. Consequently, it is logical to begin the review of the legislative framework with international agreements and conventions.
The greatest practical value for foreign investors in the Russian Federation is contained in two conventions - Seoul (or MIGA), which Russia has been a party to since 1992, and Washington, which was signed by representatives from the Russian Federation, but has not yet been ratified. In addition to these two fundamental conventions, there are a huge number of intergovernmental agreements and acts that are aimed at the bilateral management of foreign investment both in Russia and in another state, and is a kind of the second party to the agreement.
The Washington Convention was created to ensure the protection of private investors from the recipient state (the one in which the investment is made). The convention itself presupposes jurisdiction over investment disputes not in the domestic legislation of the country, not in the national courts, but in a specially created international body that was created under the management of the IBRD. The convention was signed in the Russian Federation in 1993, but to date it has not been ratified. This convention is a kind of guarantee for investors, which provides an impartial, unbiased and comprehensive consideration of an investment dispute, if any.
The Seoul Convention was created in order to protect private investors from possible non-commercial risks (in particular, political). Thanks to this convention, a special international organization was created that deals with (International Investment Guarantee Agency). Guarantees are given in cases where the validity and commercial viability of the investment is proven. The agency provides coverage for several types of risks, including civil unrest, military action, expropriation or similar situations. As of 2013, there are more than 170 member states of the Seoul Convention in the world.
In the CIS, an agreement was adopted that serves as a guarantee of investment. In 1997, the Investor Protection Convention was signed in Moscow.
We will not delve into individual details of the legislation, but only note that the essence of the convention is a combination of the general principles of the two above conventions, taking into account the legislation of the CIS countries. Note that since 2007, the Russian Federation has not been a member state of this convention due to the fact that all existing legal relations with foreign investors are regulated through bilateral agreements with each individual state.
The legislative framework of the Russian Federation contains at least several dozen international agreements between the parties on the protection of investments with a number of European Union countries, the Baltic countries, the Scandinavian Peninsula, Japan and some other developed Asian countries. Analyzing a number of intergovernmental agreements, it can be concluded that there is a single pattern in all regulatory legal acts, which manifests itself in the form of consolidating the norms that guarantee compensation for insurance risks for foreign investments, avoiding the nationalization of capital investments. It is also necessary to note the existence of various agreements in order to avoid double taxation, of which there are no less than fifty and which directly stimulate an increase in foreign investment.
Legislative framework of the Russian Federation on foreign investment
International legal acts and the established international mechanisms for protecting foreign investments are more effective and impartial for investors, however, national regulatory legal acts are also an important part of the formation of the state's regulatory policy in this area of commercial relations. The end of the 90s and 2000s were marked by the appearance of a number of legal acts in Russian legislation. So, the most important of them are Law No. 39-FZ "On investment activities", as well as the Federal Law" On Foreign Investments ", which were adopted in 1999.
The last named Law on Foreign Investments specifies special provisions for foreign investors, which restrict them in certain types of activities, and also indicates the possibility of capital withdrawal in cases strictly defined by law. In addition to direct restrictions, the law also contains provisions regarding a set of measures that create certain guarantees for foreign investors.
Despite the fact that today the investment legislation is developed, some conflicts and contradictions of a legal nature remain. Thus, the draft law regulating a commercial concession agreement with the participation of foreign investors has remained unfulfilled. There is also no clear and definite mechanism for regulating investment risk guarantees.
Such problems are a kind of demonstration for investors of the attitude of the state towards persons who plan to invest their own funds in a certain field of activity. The generally accepted assessment of the security of investment and the attractiveness of the state for investments coming to domestic countries from abroad is based on the level of development of the legal field (legislative acts), economic factors (the level of socio-economic development) and administrative features (functioning of the executive and legislative branches) ... And despite the fact that the state positions its own policy and legal framework as favorable for the flow of large amounts of investments from abroad, the problem of the existence of a barrier in the form of national legislation still exists.
Legal regulation of foreign investment in the Russian Federation is largely represented by the country's general positions and provisions regarding foreign investment, which, by and large, are a kind of tracing of international agreements and conventions. However, simple declamations and general formulations are not enough to attract foreign investors - it is necessary to create conditions that are conducive to general economic, political and legal stability.
Legal guarantees for foreign investors in the Russian Federation
The existing law on foreign investment enshrines the following provisions, which are guarantees for foreigners who plan to invest in the Russian Federation:
Conclusion: for this period of time, foreign investors are offered extensive rights and opportunities in the Russian market, and the current legislation, even taking into account conflicts and imperfections in some investment issues, creates favorable conditions for foreign investors. Taking into account this factor, taking into account the last twenty years, the state has adopted regulatory legal acts, which have become the main ones, and also developed special mechanisms that represent a special government regulation foreign investment. How correct and effective they are can be checked in statistical data on the amount of investments that came to the Russian Federation from abroad.
Sarkisyan Georgy Robertovich - post-graduate student of the Modern Humanitarian Academy (Moscow).
The formation and development of legal regulation of foreign investment in modern conditions reflects the specifics of the transition period that Russia is going through. The foreign investment regime is the regulation of entrepreneurial activity carried out in a foreign state. This means that the legal status of a foreign investor always remains vulnerable, regardless of the specific socio-political situation at a particular stage in the development of a particular state.<1>.
<1>Bogatyrev A.G. Investment law. M., 1992.S. 8 - 13.
Despite the considerable experience accumulated in the field of legal regulation of foreign investment, there is still no proper mechanism for the relevant international legal regulation. This, in our opinion, is explained to some extent by the weak development of the topic. A comprehensive analytical approach to research in the framework of international investment law, which is in the system of international economic law, can help here.
Many states establish a number of barriers to foreign citizens and companies in the course of their admission to the implementation of investment activities on their territory. States are afraid of the active introduction of foreign capital into those sectors of the economy that are of particular importance for national security and constitute its basic industries. In some cases, governments, at the request of their employers, conduct protectionist policies, wanting to protect them from competition with foreign companies. Therefore, many states establish restrictions or special conditions for admitting foreign direct investment in the most important sectors of the economy, which is also legally enshrined in Russia.
The obligation of the recipient state to encourage and protect foreign investment is, as a rule, the following legal norms and provisions: to ensure and encourage admission to its territory of foreign investment; guarantee foreign investors high standards of treatment, including fair and equitable, non-discriminatory treatment, most favored nation or national treatment; provide legal protections under international law and guarantees for investments, especially in relation to fund transfers and expropriations, including standards of compensation to be paid, and thereby reduce the possibility of arbitrary nationalization; guarantee access to international means of dispute resolution in the event of a dispute, etc.
It should be emphasized here that international investment law does not contain a uniform definition of the concept of foreign investment. This is due to the fact that specific rights and obligations are imposed on the subjects of investment relations in the course of this type of entrepreneurial activity, the scope of which is determined by the relevant acts. Therefore, the definition of this concept depends on the content and objectives of the regulation.
Despite the lack of a generally accepted understanding in the specialized literature legal content The concept of foreign investment, in our opinion, should be adhered to the 1985 Seoul Convention on the Establishment of MIGA, according to which the constituent features of this legal category are three mandatory conditions:
- so that investments are expressed in a contribution in cash or material form, while a contribution in the form of the provision of services cannot be considered a contribution;
- that investments are long-term and medium-term;
- so that in the course of investment activities there is a minimum entrepreneurial risk.
But, in addition, long-term investment relations should be directly established, in our opinion, between an investor and an entrepreneur in the sector of the real economy, and the investor should also be able to manage the enterprise he invests.
The legal nature of foreign investment relations is such that they require special legal regulation. Foreign investment relations, which are essentially private law in nature, simultaneously require international legal public regulation. By the way, this is the main goal of our scientific research. In other words, there is a multidimensional complex of relations, the participants of which are participants of different legal origins. Moreover, in connection with the above-mentioned controversy, we emphasize that the subjects of international investment relations do not always act as owners, that is, owners, users or managers of property goods in material terms, that is, investments.
For example, the state, as the main subject of international investment law, plays a leading role in ensuring legal protection of foreign capital on an international basis. At the same time, in the field of foreign investment, it, as a rule, does not act as a participant in international private law property relations. In this case, the state plays primarily the role of a guarantor of foreign investment activities within its own territorial jurisdiction. In other words, the state provides the organizational and legal basis for the activities of a foreign investor. Yes, a foreign investor enters into property relations, but not the recipient state, which, by virtue of its legal status, is a special subject of international investment relations.
International investment law in the broadest sense of the word is a complex industry both in the system of public international law (LIA) and in the system of private international law (IPL) simultaneously, coexisting along with the main branches of law and occupying a special place in the legal system. The legal nature of legal relations in the field of foreign investment lies in the creation of appropriate conditions and guarantees for investors, as well as in the determination of the appropriate organizational and legal forms of investment. First of all, in national law - in special investment legislation, as well as in regulatory legal acts of a general nature (civil, financial, tax, banking, customs legislation, etc.), where the norms that determine the legal forms of regulation of foreign investment are enshrined. On the other hand, international legal investment norms, enshrined in international universal and bilateral treaties and are part of national legal systems, act as a legal standard for domestic investment legislation<2>.
<2>Farkhutdinov I.Z. International investment law: theory and practice of application. M .: Walters Kluver, 2005.S. 47 - 86.
The legal regime of foreign investments predetermines a set of principles and rules of international and domestic law that determine the regime of foreign investments from the moment of their establishment until the moment of their liquidation.
In principle, the legal regime for foreign investment is primarily determined by domestic law. But internal law is the law of the state on the territory of which investments are made, and not the law of the state from which the investor comes. However, the instability of national legislation and, in general, the absence of political and economic instability force a foreign investor to seek protection in international legal forms of regulation of international investments. The mechanism of investment guarantees is understood as a set of mechanisms that transfer from an international investor to a special body of domestic or local law financial consequences arising from certain political risks<3>.
<3>Carro D., Juard P. International economic law. Per. with fr. / Scientific. ed. V.M. Shumilov. M .: International relations, 2002.S. 375.
The provision by the recipient state of the regime of protection and guarantees of investments is ultimately aimed at the legal provision of capital security. The concept of the legal regime of investments and the concept of state guarantees are interdependent and interrelated with each other. The legal regime implies a set of norms of national and international law, which determine the legal status of foreign investments from the moment of their establishment until the moment of their liquidation. Forms and methods of protection mean a set of norms of national and international law that prevent or punish government agencies that impede normal investment activities.
International law does not oblige a foreign investor to enjoy more favorable treatment in comparison with the national one. It, in principle, does not oppose national investments being treated more favorably than foreign ones. The state, by virtue of its sovereignty, has the right to stimulate domestic investors or foreign investors by applying a balanced investment policy. That is, we are talking about the fact that the legal regime of foreign investment may differ from the national regime. At the same time, there is a certain relationship between the national regime and international standards. The national treatment accorded to a foreign investor in the host country must be in accordance with international law if the host state respects the standard of fair and equal treatment of foreign property.
The theory and practice of international investment law divides foreign investment regimes into absolute and relative. The first are based on the principles of full protection and security, non-discrimination, fair and equal treatment, the obligation to comply with obligations related to investments, treatment under international law. The latter are most favored nation and national treatment.<4>.
<4>Evteeva M.S. International bilateral investment agreements. M., 2001.S. 21 - 22.
The principles of an absolute foreign investment regime are aimed at ensuring full protection of foreign investment. A just and equal treatment is, as noted above, a traditional custom in international law, closely related to the classical definition of so-called "diligence", although its meaning is not precisely defined. The official commentary on Article 1 of the draft Convention for the Protection of Foreign Property states that "fair and equal treatment means a minimum international standard that forms part of customary international law." In accordance with this view, this standard covers its system of international legal principles, including the principle of non-discrimination, the duty to protect foreign property and an international minimum standard.
As you know, some developing states question the special legal status of certain standards of international law and their applicability to foreign investment.
According to this logic, the importance of the principle of fair and equitable treatment is explained by the relative lack of abstract content.
A fundamental place in international bilateral treaties on the encouragement and mutual protection of investment, the so-called DND<5>, takes the definition of the general legal regime. This is because clearly defining a common legal standard for foreign investment is essential to ensure a favorable investment climate in any country. New, in comparison with the provisions of Russian legislation, is the inclusion in bilateral international agreements on the protection of foreign investments of the conditions of the regime, which has received the name of the "regime of absolute standard" in international legal practice. Such a regime presupposes a general characteristic of the regime provided to foreign investments: "equal" and "fair treatment", "a regime that provides full and unconditional protection of investments" in accordance with the standards that are accepted in international law. There is no specific interpretation of “favorable and just treatment”, although some of its elements are considered more or less generally accepted. In this case, we are talking about non-discrimination, a certain minimum standard, the obligation of the state-recipient to protect foreign property.
<5>Russia has concluded with more than 50 states.
The concept that “management, maintenance” cannot be impeded in any way through unjustified or discriminatory measures, appears to be very similar to the minimum international standard. This concept is believed to refer to such incidents that took place shortly after the Iranian revolution. In this case, in the conditions of tolerant attitude, tacit support, and sometimes encouragement from some state structures, significant commercial damage was caused, which in many cases was expressed in direct or "creeping" expropriation.
The principles and norms governing the legal regime of foreign investment, being the core of the entire system of international legal regulation of foreign investment, were formed and developed over a long time, that is, in the course of the evolution of the very international legal mechanism for the protection of foreign capital. Historically making their way gradually, they have not turned into some kind of dogma that deserves universal recognition even today. On the contrary, the question of the role of the principles and norms of international investment law (IIP) in the regulation of foreign investment is still quite controversial. For example, G.M. Velyaminov argues that "general international law does not contain any clear and generally recognized principles and norms regarding the regime of foreign investment"<6>... In addition, the fact that the legal regulation of foreign investment cannot be based only on the national legal framework or only on the principles and norms of international law, albeit in the manner enshrined in the treaty, makes the problem particularly complex. Absolute axiom: a combination of national and international legal norms and methods of regulation is required. The mechanism of legal regulation of international investments in the broad sense of the word is a set of principles, norms and rules of international and domestic law, which determines the legal status of foreign investments, as already mentioned, from the moment of their establishment until the moment of their liquidation. The principles and norms of international investment law originate either from non-contractual sources, especially from general principles of international law, or from conventional sources; both multilateral and bilateral treaties and agreements. The operation of the basic principles of international law in the legal regulation of foreign investment has practically lost its former acuteness after heated discussions between the countries of the North and the countries of the South in the 70s of the XX century.
<6>Velyaminov G.M. International economic law. M .: Walters Kluver, 2002.
As for the principles and norms of national law, they are developed by the state-recipient of capital. Legislative or secondary legislation in this area reflects the choice of a government-defined foreign investment policy. Each state tries to build its investment policy based on a number of considerations, which are based on the priorities of the general economic policy.
In the course of the evolution of international investment law, there was a transformation of the principles and norms within this law. In the 60s - 70s of the XX century. The IIP relied primarily on the general principles of international law. At a time when developing countries tried to assert their unconditional right to regulate international investment, and there was no conventional system for the legal protection of foreign investment, it was advantageous for developed countries to turn to the basic principles of international law.
In the second half of the XX century. international investment law, designed to ensure a favorable regime for foreign investment, developed in a zigzag manner, which was caused by fundamental contradictions between the countries of the North, exporters of investments, and the countries of the South, their importers. This development went through three stages, although their time frame is rather arbitrary.<7>:
<7>Farkhutdinov I.Z. Decree. op. S. 171 - 172.
The first stage is the stage of approval by the countries of the North of the general principles of international law in the field of foreign investment regulation.
The second stage is the time of non-recognition (withdrawal) by the countries of the South of the general principles of international law in the field of the legal regime of international investment.
The third stage is the stage of restoration by the countries of the North and South of the general principles with regard to the legal regime of foreign investment.
It should be especially noted that the concepts of legal status and investment protection, on the one hand, and investment guarantees, on the other, are closely related to each other. Legal status is understood as a set of norms of national and international law that determine the legal regime of foreign investments from the moment of their establishment until the moment of their liquidation. The rules of protection are understood as a set of norms of domestic or local law that prevent or punish encroachments by public authorities for violating the norms and rules and means of regulating foreign investment activities.
But the whole problem is that investment guarantees are provided within the framework of domestic legislation. As you know, the interests of the recipient state and the foreign investor often diverge, and therefore these two parties have different points of view on the provision of legal guarantees for foreign investors.
The state on the territory of which foreign investment activity is carried out seeks to use its internal guarantees, which allows it to obtain the greatest concessions. The country where the foreign investor comes from is preferable to the mechanisms of international law, since the use of international guarantees gives him the opportunity to reduce concessions in the field of investment protection<8>.
<8>Carro D., Juard P. Decree. op. S. 375 - 376.
The constituent, interdependent elements of the general principles of international law in the area under consideration are following rules... First, the national norms regulating the investment regime, if they contradict, should be brought in line with international norms if necessary. Second, international law does not prevent international investment from being granted or ensured a preferred treatment over national investment. Third, international law prohibits certain differential regimes that put foreign investment in a less advantageous position than national ones.
Indeed, developing countries find it difficult to admit the existence of general principles of international law in the field under study, which, regardless of any convention, oblige the state on whose territory investments are made to respect international standards. The general principles were established exclusively under the influence of developed countries, when developing countries had not yet achieved international recognition of their sovereignty. Although in fact these principles do not reflect the will of all members of the world community, since they are unfavorable for developing countries. Here it is necessary to find a golden mean through mutual compromises, that is, a balance of interests of the countries of the North and the countries of the South.<9>.
<9>Farkhutdinov I.Z. International investment legal relations: theory and practice. Abstract of thesis. dis. doct. jurid. sciences. M., 2006.S. 12.
The goals and principles of international investment law are determined by the goals and principles of international law in general. The UN Charter, which has formally universal competence in the field of IEE, paid special attention to economic cooperation, a very significant part of which is international investment cooperation. In accordance with the UN Charter, the goals of international economic cooperation are designated: assistance to the economic and social development of states<10>.
<10>Velyaminov G.M. Decree. op. S. 118 - 119.
The system of control over the admission of foreign investments in accordance with national legislation does not contradict the theory and practice of international law. At the same time, not all states require passing the approval procedure for all foreign investments. Many states have an "open door" policy, but at the same time, investments that are officially approved by the state receive various benefits. A special procedure for the approval of foreign investments is aimed at attracting mainly those of them that are beneficial for the host state and meet all the conditions imposed by this state. This does not contradict the norms and principles of international investment law<11>.
<11>Farkhutdinov I.Z. International investment law. S. 74 - 77.
The principle of territoriality of foreign investment regulation means that as soon as a foreign investor is admitted to the territory of a foreign state, his activities automatically fall under the exclusive jurisdiction of the receiving state. In light of this, all forms and methods of state control established by the state in relation to a foreign investor are recognized as legal in accordance with existing international legal norms.
Based on the theory and practice of international law, each state is obliged to respect the property of citizens of other states and provide them with protection. The obligation of a fair, favorable attitude towards foreign private property, as well as ensuring it, the normal functioning is a mandatory norm of international law.
Depending on the functional focus, the norms governing the legal regime of foreign investment in Russia can be divided into separate groups:
- guaranteeing unconditional legal protection and stability of the activity of a foreign investor;
- dedicated to the provision of benefits to foreign investors;
- regulations governing foreign investment insurance;
- guaranteeing legal and fair settlement of investment disputes<12>.
International legal norms have their own peculiarity that distinguishes them from the norms of national law, although, on the other hand, it is obvious that many common features of their legal nature, such as legal categories make it possible to a certain extent to use certain categories and concepts of domestic law and the general theory of law in general in the study of the legal nature of the norms of international law. This is required due to the fact that the development and universalization of international investment relations demanded, in turn, the intensification of activities on international legal and domestic unification of legal norms in various areas of the relationship between international and national law.
The rules and regulations governing the procedure for insuring foreign investment are of fundamental importance in the system of ensuring successful foreign investment activity.
International legal norms establishing uniform forms and methods of settling investment disputes are also one of the cornerstones in international investment law. This is due to the fact that the mechanism of legal protection of the interests of foreign investors in the course of resolving investment disputes must comply with international investment law.
The implementation of international and investment norms generally accepted on a multilateral and bilateral basis requires similar and similar, similar legal norms in the national investment legislation. Such interaction contributes, in turn, to the convergence and unification of domestic investment norms. By the way, speaking of the international treaty unification of law, it should be noted that this form of interaction between international and national law is one of the important conditions implementation of global economic integration.
Which of the well-known forms of harmonization of international and domestic law: transformation (direct and indirect), incorporation (reference to an international treaty), implementation - should be taken as a toolkit when studying the features of the implementation of international investment norms in national legislation? It is believed that the most successful way to enforce international legal norms in domestic law is the implementation<13>.
<13>Farkhutdinov I.Z. Decree. op. S. 362 - 371.
The main task of implementation in the field of foreign investment is to achieve the goal of international norms through the forms and methods of national law. By virtue of an obligation voluntarily assumed by the state to unquestioningly fulfill the terms of an international treaty, ensuring the fulfillment of the goals and norms of international investment law should be achieved as a result of changes, additions, cancellation or adoption of new norms in domestic legislation. Thus, in the course of implementation, domestic legislation is brought in line with international law.
A fundamental place in bilateral treaties on the encouragement and mutual protection of investment is the definition of the general legal regime. This is because clearly defining a common legal standard for foreign investment is essential to ensure a favorable investment climate in any country. New, in comparison with the provisions of Russian legislation, is the inclusion in bilateral international agreements on the protection of foreign investments of the conditions of the regime, which has received the name of the "regime of absolute standard" in international legal practice. Such a regime presupposes a general characteristic of the regime provided to foreign investments: "equal" and "fair treatment", "a regime that provides full and unconditional protection of investments in accordance with the standards adopted in international law."
There is no specific interpretation of “favorable and just treatment”, although some of its elements are considered more or less generally accepted. In this case, we are talking about non-discrimination, a certain minimum standard, the obligation of the state of the capital recipient to protect foreign property.
The vast majority of Russia's bilateral treaties contain the term "fair and equitable" regime. "Each of the Contracting Parties will ensure a fair and equitable treatment of investments for the investors of the other Contracting Party and will not, through unjustified or discriminatory measures, impede the exploitation, management of investments carried out by these investors. Each of the Contracting Parties provides such investments with complete safety and protection," says , for example, in the Agreement between Russia and the Kingdom of the Netherlands.
Incidentally, the rule "a fair and equal regime" is largely declarative in nature. It fixes the will of the state to encourage foreign investment, to pursue a benevolent policy towards foreign investors. More specific wording of the bilateral treaty is contained in subsequent articles, which refer to the provision of most-favored-nation or national treatment to foreign investors.
The establishment of the most favored nation treatment is stated in bilateral treaties with Austria, Belgium, Great Britain, Spain, Italy, Canada, Korea, China, the Netherlands, Turkey, France, Germany, Finland, Switzerland, etc. Consider article 3, clause 2 of the Agreement between Russia and France on mutual encouragement and mutual protection of investments, which says: "Each of the contracting parties on its territory and in its maritime zone will apply to investors of the other Contracting Party with regard to their investments and related activities, the treatment is no less favorable than the treatment provided to investors of any third country. "
"The regime is no less favorable than in relation to capital investments of investors from third countries" is established by Article 3 of a similar Agreement between Russia and Germany. The same article stipulates that "without prejudice to its legislation on joint ventures with the participation of foreign investors, each of the Contracting Parties undertakes not to take discriminatory measures in relation to joint ventures with the participation of investors of the other Contracting Party, capital investments of such investors, as well as the activities of investors related with investment ".
Bilateral treaties of Russia also provide for exemptions that are allowed when granting most favored nation treatment. The principle of most favored nation is understood as the inclusion in international treaties of the provision that each of the contracting states undertakes to provide the other contracting state in a particular sphere of their relationship specified in the treaty with rights, advantages, privileges and benefits as favorable as those that it grants or will provide in the future to any third state. The formula "which it grants or will provide in the future to any third state" covers the regime enjoyed by any third state, regardless of whether it is based on an international treaty, national law or law enforcement practice<14>.
<14>Usenko E.T. Most favored nation in Soviet-American trade relations // СГиП. 1987. No. 9, p. 85; Voitovich S.A. Most favored nation in trade and economic relations // SEMP, 1987. M., 1988. P. 172 - 184; Ustor E. The most favored nation clause the customs unions // Asta jurid. 1977. T. 19. P. 155-173; Nazay P. Application of the most favored nation treatment in East-West trade. 1979. T. 21. P. 145-158.
It should be emphasized that most favored nation treatment cannot be confused or equated with non-discrimination treatment. The principles underlying these regimes vary in content. The essence of the principle of non-discrimination is the right to demand conditions such as are enjoyed by everyone, that is, conditions that are general, the same for everyone.
The essence of the most favored nation principle is the right to demand preferential, privileged conditions. Therefore, most favored nation treatment implies non-discriminatory treatment, but is not limited to it. The principle of non-discrimination is a general consequence of the sovereign equality of states. It has the character of a generally binding customary legal norm and therefore does not need contractual recognition. As for the principle of most favored nation, it, as an international legal norm, has a contractual character.<15>.
<15>Hyder K. Equality of treatment and trade discrimination in international Law. The Haque 1968. P. 33-127; Domke M., Hazard J. State trading the most favored nation clause // Amer J. International Law. 1958. Ns. 1. P. 55 - 68; Sukijasowic M. The most favored nation treatment in the contemporary world // Jugost rew medunar pravo. 1977. Na 1/2. S. 56-64; Velyaminov G.M. Legal regulation of international trade. M., 1972.S. 219 - 234; Shumilov V. The principle of the most favorable nation in international law (problems of theory and practice) // Foreign trade. 1985. N 7.P. 42 - 48.
It is noteworthy that the UN International Law Commission on Non-Discrimination has made it abundantly clear that this is "a general rule arising from the equality of states."<16>, "a general rule arising from the sovereign equality of states"<17>.
<16>Jearbook of International law comission. 1958. V. II. P. 105.
<17>Ibid, 196. Vol. 11.P. 128.
It should be especially noted that in addition to the provision on granting most favored nation treatment, our country has undertaken to provide foreign investors with national treatment.
The principle of national treatment in advanced economies is fundamental to investment activity. When granting national treatment to foreign investments, national and foreign entrepreneurs act on the market, with some exceptions, as equal entities.
Consequently, national treatment is a regime in which the rights of investors in the territory of the host state are determined mainly by local (national) laws, and not by the laws of the country of origin of capital. At the same time, the national treatment of foreign investments cannot be less favorable than the treatment provided to national legal entities (national capital) of Russian investors. For example, in the Agreement with Spain Art. 5 states that "each of the parties, in accordance with national legislation, will grant, with respect to investments made by the investors of the other Party, treatment no less favorable than that which is accorded to its own investors."
A similar addition contains Art. 3 paragraph 4 of the Agreement with Canada: "... to the extent possible and in accordance with its legislation, it shall provide the investment or income of investors of another contracting party with a treatment no less favorable than that which it provides for the investment or income of its own investors."
That "this Agreement cannot prevent investors from taking advantage of more favorable provisions" is stated in the Treaty with the Governments of the Kingdom of Belgium and the Grand Duchy of Luxembourg on the mutual encouragement and mutual protection of investments.
The above additions to the most favored nation treatment granted to foreign investors indicate the desire to create more favorable conditions that correspond to the national regime as the principle of subordination of foreign investors to the rules of entrepreneurial activity established for Russian businessmen... In paragraph 1 of Art. of this Agreement, the provision of most favored nation treatment is stipulated: each of the parties is provided with "treatment no less favorable than that which you provide" to the investments and incomes of investors of any third country. " , which is provided to investors of any third country ".
Clause 3 of Art. 3 directly speaks of the application of national treatment to foreign investors. That is, "equal treatment that is accorded to the capital investment and income of its own investors." But it should be noted that this kind of optimal favorable treatment, by agreement of the Parties, is provided "as far as possible and in accordance with their legislation."
Analyzing the relevant articles of agreements on the encouragement and mutual protection of investments, one can come to the conclusion that the wording in the Treaty with the United States is interesting. Clause "p" of Art. 1 states that "national treatment means treatment that is at least as favorable as that accorded by a Party to companies or third-country nationals in similar circumstances."
The "mixed" regime is discussed in the Agreement between Russia and the Republic of Korea on the encouragement and mutual protection of investment. In it, the parties mutually grant investors the right between most favored nation treatment and national treatment: "Each of the Contracting Parties will provide, on its territory, the investment or income of investors of the other Contracting Party no less favorable treatment than it provides investment or income from investment of its own investors or investors. any third state "(Art. 3).
International agreements on the protection of investments may provide for the possibility of exemptions from national treatment in relations between the investors of the contracting states and the contracting state receiving investments. So, for example, in the Agreement between Russia and Korea, paragraph 3 of Art. 3, it is provided that "each of the Contracting Parties reserves the right to establish or maintain, in accordance with its current legislation, limited exemptions from national treatment provided in accordance with paragraphs 1 and 2 of this article. "
It is noteworthy that the Agreements with Canada and France, when determining the investment regime, provide for a direct reference to the general principles of international law. For example, "each of the parties undertakes to ensure on its territory ... the investments of investors of the other Contracting Party, in accordance with the principles of international law, a fair and equitable treatment, excluding any injustice or discriminatory measure that could interfere with the management, maintenance, use or liquidation of these investments" (Clause 1, Article 3 of the Agreement with France).
The inclusion of the condition on the provision of an absolute standard regime, in the opinion of experts, means that when resolving certain issues in the course of investment activities, it is possible to refer to the norms of international law. If a condition of an international agreement contains a direct reference to the norms and principles of international law, then the interpretation of categories such as "fair" and "equal" regime should be given in accordance with the understanding of these categories, adopted in international law. The absence of reference to international law allows for the interpretation of these categories by the contracting parties in accordance with national law<18>.
<18>Doronina N.G., Semilyutina N.G. Legal regulation of foreign investments in Russia and abroad. M., 1993.S. 96.
In the past, most favored nation (MFN) treatment was characteristic of interstate trade agreements. It was interested in the states connected by a system of trade relations. The advantage provided to the MFN states is as follows: each new agreement of one of the counterparties of the MFN agreement with any third state on changing the conditions of international trade to a preferential side, also changes the terms of trade in relation to its counterparty under the agreement, and also to a preferential one. side. In order to avoid the loss of privileges in international trade, obtained through mutual concessions, each state tries to ensure the right to any other and greater privileges that may be provided to its rival in international trade, some other state. In the modern economic struggle for the development of new foreign markets, no state can rely so much on its own strength as not to be afraid of especially preferential treatment with other states.
Having concluded an agreement with the MFN condition, the state can be sure that the conclusion of a preferential agreement with a third state by its counterparty will entail the application of the same benefits in relation to itself. To create the most favorable international trade regime, it may not be enough to conclude a bilateral MFN agreement; a multilateral treaty or a system of bilateral MFN treaties may be required to link a whole group of countries. Thus, a single trade regime would operate for the whole region (for example, the trade regime between the EU member states or the regime established under the General Agreement on Tariffs and Trade).
In fact, in this case, a kind of community of states arises, trading among themselves according to the same rules. In this regard, it should be noted that reciprocity is one of the basic principles of international trade and investment cooperation. However, many acts of an international legal nature provide for a violation this principle especially for developing countries. Similar provisions are contained, for example, in Art. 19 of the Charter of Economic Rights and Duties of States, which establishes preferential, non-reciprocal and non-discriminatory treatment for developing countries. In the past, such a regime was provided for trade between colonial countries and their metropolises, the USSR and other socialist countries provided special preferences to support the national economies of developing countries. Thus, the activities of foreign investors can be provided with a special type of regime - preferential.
Consequently, most favored nation treatment can be provided both on the condition of reciprocity, and without it. In the case where the most favored nation treatment is granted without the condition of reciprocity, we are talking about the absolute most favored nation.
In accordance with the national regime, foreign individuals and legal entities have the same rights, privileges, benefits and restrictions regarding their business activities as national companies and entrepreneurs. Unlike the MFN, national treatment can be provided both by international treaties (for example, treaties on legal assistance, on mutual encouragement and protection of foreign investment, trade agreements, agreements on navigation), and by national legislation (laws on entrepreneurial activity, foreign investment, legal status of foreigners, etc.).
When studying each type of activity provided by states to foreign investors, it should be borne in mind that any type of regime is rarely applied in a "pure" form - for each of them various exceptions and exceptions are possible, the list of which is either contained in international treaties or established by the state in unilaterally norms of internal legislation. At the same time, depending on the nature of exemptions from the regime, there are preferential or restrictive regimes for the activities of investors. What types of modes of activity are typical for modern legal regulation of investment activities of foreign investors? Conditions on modes of activity contain a variety of international agreements - multilateral and bilateral treaties, and above all various trade agreements, agreements on partnership and cooperation, as well as bilateral agreements on the encouragement and mutual protection of foreign investment.
Currently, the Russian Federation has more than 50 Agreements on the encouragement and mutual protection of foreign investment. Some of them were signed on behalf of the USSR. In relation to them, the Russian Federation continues to exercise rights and fulfill obligations on the basis of the note of the Ministry of Foreign Affairs of the Russian Federation dated January 13, 1991, in which Russia confirmed its succession in relation to treaties concluded on behalf of the USSR. When studying these agreements, it should be borne in mind that some of them have not entered into force and have no practical application yet.
In 1994, Russia applied for admission to the World Trade Organization (WTO / GATT-1994). Russia's accession to this organization will entail the spread of a special regime for Russian goods and investments in the world market. The Partnership and Cooperation Agreement signed by Russia and the European Union dated June 24, 1994, is of particular importance for determining the mode of activity of Russian investors in the Western market. Special modes of activity for investors within the CIS are stipulated by the concluded Agreement on Cooperation in the Framework of Investment Activity dated December 24, 1993. In addition, the provisions on the regime of investment activities within the CIS are contained in the act of the Interparliamentary Assembly of the CIS Member States "On general principles regulation of foreign investments in the states - participants of the 1994 Interparliamentary Assembly.
An analysis of Russia's bilateral investment agreements allows us to conclude that the following types of regimes may be provided to foreign investors. Most favored nation treatment is provided, for example, in agreements on the encouragement and mutual protection of investment: with the Republic of Austria (Art. 3), in Art. 2 Agreements of the USSR and the Kingdom of Belgium and the Grand Duchy of Luxembourg, in Art. 4 of the Agreement with the Netherlands, at art. 3 of the Agreement with the Federal Republic of Germany, in Art. 3 Agreements with the Republic of Finland. These Agreements stipulate that the regime for the activities of investors on the territory of the contracting parties will be no worse than the regime provided to investors of third countries.
Certain difficulties are caused by the definition of the specific type of national treatment provided by NB - is it about partial or full most favored nation treatment? Agreements with Austria, Belgium and Luxembourg, the Netherlands, China provide for the establishment of a regime that must be "no less favorable than the treatment accorded to investments and activities in connection with the investments of any third state. Agreements with the FRG and Finland provide for a regime" no less favorable, than in relation to investments of investors from third countries. "If we do not take into account the inaccuracies in the translation of the wording of the articles of the Agreements when they pass authentication, we can draw the following conclusion: In the first case, the countries have undertaken to treat each other no worse than with any and third states ...
Thus, the parties to the agreement can claim only those preferential conditions for the activities of investors that are provided for all third states (any of them), thereby the parties limit the right to claim special benefits intended for investors of any other state, and only for them ... At the same time, this obligation provides for the need not to impose special restrictions on the activities of investors of the parties to the agreement, if they do not apply equally to all other states. The absence of the right to special, special benefits provided to other individual states is emphasized by the provision according to which this regime does not apply to the benefits that the parties will provide to investors of a third state on the basis of special international treaties (clause 3 of article 3 of the Agreement with Austria, article 2 Agreement with Belgium, clause 3 of article 3 of the Agreement with the Netherlands, clause 3 of article 3 of the Agreement with China). Such agreements may relate to a free trade zone, a customs union, the organization of mutual economic assistance; tax issues, cross-border trade. That is, in this case, we can only talk about the partial most favored nation regime.
The conditions for the regime of investors' activity are formulated somewhat differently in the Agreements of Russia with the participation of the FRG and Finland (clauses 1, 2, article 3). It is envisaged that each of the contracting parties shall ensure on its territory "a regime no less favorable than in relation to capital investments of investors from third countries." Apparently, here we are talking about specific third states, which are provided under special agreements with special benefits in comparison with general conditions activities of foreign investors. At the same time, the Agreements provide for the traditional condition for the MNB not to apply discriminatory measures to counterparty investors that would put them in a worse position than investors in other states. In this case, we are talking about the provision of full most favored nation. Based on the foregoing, it can be concluded that investment protection agreements provide for different types of MFN for foreign investors, thereby placing their investors in different legal provisions. However, it should be noted that in the practice of implementing these agreements, such a discrepancy will most likely not be taken into account, since this discrepancy is literally in one word, and the regimes themselves - partial and full MFN - are formulated and described in the same way, and their additional differences content cannot be identified by analyzing related articles. Moreover, the Agreements with the FRG and Finland (full MFN) and the Agreements with Austria, Belgium and the Netherlands (partial MFN) provide the same list of exceptions to the MFN (cross-border trade, customs union, taxation issues, etc.). Therefore, although it is doctrinal and possible to reveal discrepancies in the content of MFN in these agreements, a full NL regime will actually operate, in which the parties are most interested and which was probably implied when concluding these agreements. Therefore, we can conclude that if the agreements are about MFN, then they mean, first of all, complete and absolute favors.
Moreover, the condition for granting a non-discriminatory treatment of activity, which, as already mentioned, is one of the two types of full most favored nation conditions, is contained in some agreements on the encouragement and mutual protection of foreign investment in special articles, not coinciding with the second condition - the condition of full maximum favored. An example is the provisions of the Agreement between the Russian Federation and Kuwait. Clause 2 of Article 2 of the Agreement establishes: "Investments of investors of one of the Contracting Parties shall be provided with a fair and equal treatment, as well as full protection and security is ensured in the territory of the other Contracting Party. Neither of the Contracting Parties harms on its territory the investors of the other Contracting Party by unreasonable, binding or discriminatory measures in relation to the management, maintenance, use, ownership or disposal of investments. " In turn, paragraph 1 of Article 3 directly provides for the very condition of most favored nation, the right to especially preferential treatment in comparison with simply non-discriminatory treatment: each of the contracting Parties provides investments made in its territory by investors of the other Contracting Party, a treatment no less favorable than the one that it provides for the investment ... of any third state. "
A similar distinction between these two types of conditions is contained in other agreements, for example, in the Agreement between Russia and Canada. The most-favored-nation condition for investors is established in international agreements on mutual encouragement of investments. Undoubtedly, such a regime meets the interests of states, placing them in an equal position in relation to the activities of their investors. Under the MFN, the state can always count on any privilege or advantage regarding the import of goods, customs duties, tariffs or excise taxes, import quotas and all other issues within the scope of the MFN, provided to investors of a third state, will automatically apply to its investors.
Thus, states find themselves in an equal position and their investors enjoy equal rights and benefits relative to each other, which facilitates competition between them and puts them on an equal footing when conquering a new market. A foreign firm seeking to establish itself abroad need not fear the special advantages and benefits that a foreign company may have. In fact, by concluding a number of agreements subject to the provision of MFN, a kind of unified regime of activity is introduced for all foreign investors on the territory of one state.
However, the same starting conditions when entering the domestic market of the state do not provide a favorable climate for economic investments of foreign investors in the future - they have a new competitor, which is very actively protected by the state itself that accepts investments - the national investor.
When entering the national market, a foreign company may face special regulation of its activities, which may place this company in an unequal position compared to local firms. The state, as support for its own investors, can severely restrict the rights of foreign firms by establishing a special procedure for access to entrepreneurial activity, prohibiting foreign presence in certain industries, etc. Therefore, any company operating in the foreign market prefers to be equal in rights with national entrepreneurs, to act according to the same rules as national investors, that is, to receive a national regime for doing business.
To achieve this goal, states, when concluding agreements on the mutual encouragement and mutual protection of foreign investment, seek to ensure that these agreements include conditions for providing their investors with a national regime of activity. At the same time, the state does not want to lose for its investors the benefits that are provided to them under the MFN. Therefore, at present, the most common type of regime for foreign investors is a combination of the MFN and the national regime.
The provision of MFN and national treatment is simultaneously provided for in the agreements on the encouragement and mutual protection of foreign investment, concluded by Russia with the following states: Korea, Greece, Denmark, Poland, Romania, Kuwait. Agreements with these states presuppose the simultaneous action in relation to their investors and national treatment, and most favored nation treatment. The agreement between the Russian Federation and the Hellenic Republic provides for a special regime for investors' activities, which implies a combination of the MFN regime and the national regime, and which one will be applied depends on which of them is currently more favorable. Consequently, if the state provides in the future in its national legislation or international agreement any special benefits for foreign firms, putting them in a more favorable position than its own investors, the MFN will be applied to the counterparty's investors. When the investment policy of the state changes and national investors are provided with a larger volume of benefits and privileges, the national treatment will be applied to the counterparty's investors. A similar type of regime is envisaged in the agreements between Russia and Denmark and Kuwait.
Agreements with Korea, Poland, Romania, Slovakia provide, in principle, the same regime for investors, but they formulate the definition of the regime in a slightly different way: the choice of the MFN or the national regime is not determined by the condition that the regime is most beneficial for the investor at the moment. "Each of the Contracting Parties will provide, on its territory, the investment or income of the other Contracting Party, a treatment no less favorable than it provides investment or income from investment of its own investors or investors of any third state" (Clause 1 of Article 3 of the Agreement with Korea, Clause 2 Article 4 of the Agreement with Poland, paragraph 1 of Article 3 of the Agreement with Romania, paragraph 1 of Article 3 of the Agreement with Slovakia). This formulation can hardly be called successful. When applying these provisions, difficulties will inevitably arise in determining the specific type of regime that investors in these states can apply for. It seems that the regime of their activities can be determined in one of the following ways: 1) use the principle applied in agreements with Denmark and Greece - the regime will be provided on the basis of its profitability at the moment; 2) investors can themselves choose the type of regime for their activities - in this case, there will be a problem of applying the regime by the investor in relation to him with various state bodies; 3) the type of regime will be determined by the state receiving the investment.
Such formulations of articles of agreements that imply alternative modes of activity of foreign investors create a special problem of determining a specific type of regime in relation to investors of each state, the scope of the regime (legal relations to which this regime applies), the method of its consolidation and implementation in the practical implementation of investment activities. Probably the easiest way to secure the type of regime of activity and the benefits it provides is to conclude a special investment agreement between the investor and the host government.
The Declaration on International Investment and Multinational Enterprises, prepared by the Organization for Economic Cooperation and Development (OECD), recommends that the member states of this international organization provide investors and each other's investments with treatment equal to their own investors. The provision of such a regime is an undoubted advantage for foreign companies operating in the territory of a particular state: they get free access to local sources of funding, enjoy all local benefits, can operate in any industry, using any organizational and legal form, etc.
National treatment is usually granted to foreigners by countries with developed, stable economies that are not afraid of economic intervention from other states, and the principle of national treatment is extended by developed countries to each other's investors, while for investors in developing countries special types of modes of activity may apply.
When granting national treatment, national legislation does not provide for special conditions for the activities of foreigners, extending to them the same rules as to national investors. Therefore, in some states there is no special legislation intended solely to regulate the activities of foreign companies and entrepreneurs. If for some aspects of the activities of foreign investors special regulation is required (for example, in matters of the procedure for the establishment and registration of companies, the licensing procedure for admitting investors to the use of natural resources, etc.), then such special rules will be contained in general regulations intended primarily for national investors, in the form of exceptions to general rule... This is the approach that the United States adheres to in regulating the activities of foreigners.
Other states, while providing investors with national treatment, nevertheless develop special legislation to regulate their activities in the form of special laws or codes on investment activities, as well as in the form of special administrative regulation of foreign investment. This is the approach that the Russian Federation, as well as other countries of the Commonwealth of Independent States, currently adhere to.
It is generally accepted that the granting of national treatment allows the state to accept certain exemptions from it for foreigners... It should be noted that none of the agreements on the mutual protection of investments considers the rules for admitting foreign investments as a restriction on the activities of foreign investors or an exemption from the national regime. Some bilateral treaties of Russia specifically stipulate the right of each contracting party "to create on its territory favorable conditions for investment by investors of the other Contracting Party and to allow such investments in accordance with its legislation" (Agreement with Switzerland - clause 1 of article 3). The articles are entitled, respectively, "Investment approval and protection" and "Investment promotion".
6. Legal regime of foreign investment
Foreign investment - these are tangible and intangible values belonging to legal entities and individuals of one state and located on the territory of another state for the purpose of making a profit.
One of the grounds on which to classify investments is property ornon-property their character. Under non-property investments should be understood as the rights to inventions, industrial designs, topology of integrated circuits; as well as specific technological information (know-how), trade secrets, confidential commercial information, trademarks, service marks, trade names, i.e. everything that is included in the concept of intellectual property ... All other categories of investments are classified as property investments. Them characteristic feature is an material expression: finance, material values.
Another basis for the classification of investments can be considered participation or non-participation of the investor in the management of the investment object. On this basis, investments can be divided on thestraight andindirect (portfolio) investments. Direct investments are carried out in the form of joint ventures and ventures, with this form of investment foreign investors "directly and directly" participate in the management of the enterprise (company). Indirect investments do not provide for direct participation in the management of an enterprise (company), but involve the receipt of dividends by foreign investors on shares and securities, i.e. on the capital invested in these enterprises in cash.
Depending on the source of funding foreign investment can be divided into state, which are carried out in the form of loans and borrowings provided by states and international organizations (IBRD, IMF, EBRD, etc.), and private , carried out by foreign legal entities and individuals. The object of legal regulation of private international law is legal relations, arising in connection with private foreign investment.
In the structure of legal regulation investment relations can be distinguished two levels: 1) international legal formed by the conclusion of international treaties and 2) domestic, which is based on the national legislation of the host state.
International treaties on foreign investment can be divided into three groups: multilateral international treaties, the main purpose of which is to protect foreign investment at the interstate level (for example, the Convention on the Procedure for the Settlement of Investment Disputes between States and Foreign Persons, 1965; Convention on the Establishment of the Multilateral Investment Guarantee Agency, 1985); regional international agreements (for example, CIS agreements) and bilateral agreements(here we can talk about both agreements between states on the protection of foreign investments, the elimination of double taxation, and agreements between states and international organizations - IBRD, EBRD, EU).
Today, the most effective mechanism for protecting foreign investment is insurance. In September 1985 in Seoul was signed Convention Establishing the Multilateral Investment Guarantee Agency(hereinafter referred to as the Agency) (entered into force on April 12, 1988). The main idea of the convention- provide to foreign investors financial guarantees against non-commercial risks through investment insurance.
Depending on what non-commercial risks are covered by the Agency, the following types of insurance mentioned in the Convention can be distinguished.
1. Currency translation. This type of insurance protects the investor from losses associated with the investor's inability to convert funds into local currency(income, the amount of debt paid, interest on debt capital and other payments) to take them out of the country. However, it should be borne in mind that this type of insurance does not cover the devaluation of the local currency.
2. Expropriation or Similar Measures. This type of insurance protects the investor from “any legislative or administrative action or omission by the host government that would result in the owner of the guarantee losing ownership of, control over, or substantial income from such investment.” These actions do not include decisions of the judiciary, as well as generally applicable bodies of a non-discriminatory nature (measures related to taxation, compliance with environmental and labor laws, measures to maintain public order, etc.).
3. War and civil unrest. This type of insurance protects the investor from damage, destruction or disappearance of fixed assets as a result of war or civil unrest. As a general rule, the above provision should not apply to terrorist acts directed directly against the holder of guarantees.
4. Violation of the terms of the contract(contract). This type of insurance guarantees the investor protection against losses associated with violation of the terms or termination of the contract by the government of the host state. Compensation is provided only in cases where: 1) there is no body to which the investor could apply with a claim under an agreement (contract) against the government of the host state; 2) an unreasonable delay, as defined in the guarantee agreement, prevents recourse to such a body; 3) after making a final decision in his favor, the foreign investor cannot achieve its implementation. If any of the three conditions are met, the Agency pays compensation.
An example of a regional foreign investment agreement is Agreement of the CIS countries "On cooperation in the field of investment activities" of December 24, 1993 In accordance with this agreement, the parties undertake cooperate in the development and implementation of investment policies; take action to approximation of their legislation on investment activities and other measures. The agreement applies not only to private foreign investment, but also to public investment.
For foreign investors The agreement guarantees payment adequate, prompt and effective compensation in the event of nationalization(art. 7); unobstructed transfer to the participating states arrived received from investment activities (Art. 8); exemption from customs duties on property taxes imported from other states as a contribution to the authorized capital of an enterprise and intended for its own material production (Article 15); the right to use land, including its lease, and other natural resources (Article 20).
In development of the Agreement on cooperation in the field of investment activities March 28 1997 within the framework of the CIS, the Convention on the Protection of Investor Rights is adopted, which determined the legal framework for the implementation of various types of investments and guarantees of the rights of investors to make investments and the income received from them.
Currently on the territory of the Russian Federation there are agreements with foreign states, both concluded by the USSR and Russia.
The agreements draw attention to the following points: the adoption of a regime for foreign investment; providing guarantees to protect the interests of foreign investors; resolution of investment disputes.
According to agreements the investment or income of investors of each of the parties is always provided with a fair and equal treatment in accordance with the principles of international law - most favored nation treatment. The system of guarantees is generally similar to those provided for in multilateral conventions.
The existing international treaties create a single mechanism aimed at protecting foreign investments, and proceed from some common principles of legal regulation of investment relations.
A feature of the national investment legislation is that it does not apply a collisional regulation method and its norms directly regulate the relationship between a foreign private investor and the state.
In host states, foreign investment may be provided national treatment, most favored nation or privileged treatment.Under national regime foreign investors carry out their activities on the same terms as domestic investors, with some exceptions. Most favored nation foreign investors are provided with equal conditions for carrying out investment activities without giving any advantages to some of them. Privileged mode (preference regime) is to provide some privileges for the import of raw materials and equipment, exemption from customs duties and taxes, etc.
Host states can take measures to restrict foreign investment, which boil down to the following: 1) prohibition of the activity of a foreign investor in certain sectors of the economy; 2) the establishment of special state control over the admission of a foreign investor to the development of subsoil and natural resources; 3) obligatory share participation of the state in enterprises created by a foreign investor; 4) establishment of a special fiscal regime; 5) definition of concession policy.
The legal framework for foreign investment in the Russian Federation is primarily represented by special laws: "On investment activity in the RSFSR" 1991, "On Production Sharing Agreements" 1995 G., "On foreign investments" 1999 In addition, there are separate sectoral laws, as well as decrees of the President and decrees of the Government,
The Foreign Investment Law of July 14, 1999 understands under foreign investment investment of foreign capital in an object of entrepreneurial activity on the territory of the Russian Federation in the form of objects of civil rights belonging to a foreign investor, if such objects of civil rights are not withdrawn from circulation or are not restricted in circulation in the Russian Federation in accordance with federal laws, including money, securities ( in foreign currency and the currency of the Russian Federation), other property, property rights with a monetary value of exclusive rights to the results of intellectual activity (intellectual property), as well as services and information (Article 2).
The legal regime of foreign investments, as well as the activities of foreign investors for their implementation, in accordance with Art. 4 Laws, could not be less favorable than the regime for property, property rights and investment activities of legal entities and citizens of the Russian Federation, with only a few exceptions. Restrictive exemptions for foreign investors can be established by federal laws only to the extent necessary in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the country's defense and state security. Exemptions of a stimulating nature in the form of benefits for foreign investors can be established in the interests of the socio-economic development of the Russian Federation. In this case, the types of benefits and the procedure for their provision are established by the legislation of the Russian Federation.
The law provides for a whole range of measures that represent guarantees for foreign investors' capital investments. The list of these measures has expanded significantly compared to 1991, when the first Russian law about foreign investments. Among them are guarantees: legal protection activities of foreign investors on the territory of the Russian Federation; use by a foreign investor of various forms of investment on the territory of the Russian Federation; transfer of the rights and obligations of a foreign investor to another person; compensation for nationalization and requisition of property foreign investor or commercial organization with foreign investment; protection against adverse changes in legislation RF; ensuring the proper resolution of a dispute arising in connection with investment activities; use on the territory of the Russian Federation and transfer outside the Russian Federation of income, profits and other lawfully received sums of money; the right to freely export property and information outside the Russian Federation in documentary form or in the form of a record on electronic media, which were originally imported into the territory of the Russian Federation as a foreign investment; rights to purchase securities; participation in privatization; granting the right to land, other natural resources, buildings, structures and other immovable property (Art. 5-15).
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