Legal regime of investments in the Russian Federation. Legal regime of foreign investments in Russia
IN PRIVATE INTERNATIONAL LAW
§one. The concept of foreign investment and ways of their implementation in Russia. Guarantees and benefits for foreign investors.
§2. Legal status of a commercial organization with foreign investment.
§ 3. International mechanisms for protecting the rights of foreign investors and resolving investment disputes.
§ 4. Legal regime of production sharing agreements.
§ .5 Legal regime of free (special) economic and offshore zones.
The concept of foreign investment
And ways to implement them in Russia.
General provisions
States interested in attracting foreign capital adopt special legislation on foreign investment, the purpose of which- provision of guarantees and benefits to foreign investors.
Russia, China (which accounts for a quarter of all foreign investment), the countries of Southeast Asia, South America, and some African countries have such legislation. V highly developed countries, such as the US or Japan, there is no special legislation on foreign investment - in such countries for domestic and foreign investors, there is a national treatment.
There are also agreements between states international agreements on the encouragement 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 upon nationalization, fair resolution of the dispute, etc.). Russia has already concluded more than 50 such agreements with all developed countries, such as Great Britain, the USA, the EU countries, that is, with investor countries from which Russia expects investments.
In the field of foreign investment regulation, the determining role is played not by the conflict of laws, but by the substantive-legal 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 has been created - the State Investment Agency, the purpose of which is to perform the function of a "one stop shop" 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, a new Federal Law “On Foreign Investments in the Russian Federation” was adopted in Russia (effective as amended by the Federal Law of December 8, 2003), since the entry into force of which the previous Law “On Foreign Investments in the RSFSR” has become invalid 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 dated 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- this is an investment of foreign capital in an object of entrepreneurial activity in the territory of the Russian Federation in the form of objects 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 "foreign direct investment", "investment project", "priority investment project".
It should be noted that the concept of "investment" is not purely civilistic, it also carries a public law character. Defining certain activities as investment in accordance with an international agreement or on the basis of its domestic legislation, the state extends a number of benefits (tax, customs, registration) to it in order to attract capital to the country's economy. In science, however, there is a reasoned position according to which investment relations are realized 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 (foreign investors) from unlawful seizure of this property state. Therefore, in this part, these agreements regulate civil (civil law) relations.
Direct foreign investment is recognized: 1) the acquisition by a foreign investor of at least 10% of a share in the authorized (share) capital of a Russian economic 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) importation into the territory of the Russian Federation of equipment (specified in sections XVI and XVII of the FEACN of the CIS) with a customs value of at least 1 million rubles. (roubles are taken at the exchange rate as of the date of adoption of the Law) under a leasing agreement in which a foreign investor acts as a lessor. Note that we are talking 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 organization's constituent documents and register them.
The Federal Law “On Foreign Investments in the Russian Federation” guarantees mainly direct investments. At the same time, projects such as the construction of large facilities, the purchase of an enterprise (as a property complex), loans to Russian companies do not qualify as direct investments, and they are not covered by all the guarantees and benefits under this Law, which does not contribute to attracting investment in the economy country.
Investment project- this is a rationale for the economic feasibility, volume and timing of foreign direct investment, including design and estimate documentation. The law also defines the category "priority investment project”, which includes: 1) projects, the total volume of foreign investment 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 (share) capital of the enterprise is at least 100 million rubles. (approximately 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 Russian economy."
Ways of foreign investment in Russia. There are four main directions in attracting foreign investment to Russia.
1. Investment of foreign capital in already 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 (share) capital of Russian business companies and partnerships. The technical re-equipment of Russian organizations can also be carried out through the development international leasing when foreign leasing company(investor) buys the necessary equipment ordered by a Russian organization and leases this equipment to a Russian organization. Leasing transactions in the amount of more than 1 million rubles. are directly classified by Russian legislation as foreign direct investment, and guarantees and benefits are extended to them.
2. Creation of new economic companies or partnerships with the participation of foreign capital. As practice shows, investors create organizations either in the form of a CJSC or in the form of an LLC. For example, when creating a CJSC, an investor imports equipment into Russia as payment for shares at their initial placement.
3. The creation by foreign firms in Russia of their branches and representative offices and the 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 - economic companies or partnerships. Previously, the category used was "Joint Venture" (JV), with previous legislation treating the JV as a specific legal entity. The joint venture institution has ceased to exist since the adoption of the first part of the Civil Code.
4. Financing by foreign investors of specific projects, for example, the construction of buildings and structures in Russia, the purchase of enterprises, blocks of shares Russian companies(if we are not talking about the initial placement), the provision of loans to Russian organizations, including targeted ones. 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 activity of foreign investors cannot be less favorable than the regime for the activity Russian investors. Moreover, foreign investors enjoy special guarantees under the Law on Foreign Investments. 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 one's claims to another person and transfer the debt to another person (first of all, this refers to the transfer of the investor's rights to his state in connection with the investment insurance agreement concluded between them);
The right to compensation in case of nationalization and requisition of property;
The right to a proper resolution of the dispute in court or arbitration;
The right to free transfer abroad of income from investment activities and to the unhindered export outside of Russia of property and information previously imported as an investment;
The right to acquire 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 benefits in accordance with the customs and tax legislation of the Russian Federation; 2) guarantees against unfavorable changes in legislation.
Customs benefits 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) belong to the main production funds; 3) are imported within the terms established by the constituent documents for the formation of the authorized (share) capital. Such goods are imported under conditional release, i.e. the benefits will be canceled if the goods are not used as an investment in authorized capital(for example, will be 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 (share) capital of organizations are exempt from VAT. Note, however, that neither RF Government Decree No. 883 nor the RF Tax Code links the granting of benefits to “priority investment projects”.
Guarantee against adverse changes in legislation(the so-called stabilization, or " grandfather clause» - grandfather's clause) consists in the fact that in the event that regulatory acts of the Russian Federation are adopted that lead to an increase in taxes and customs payments, establish prohibitions on the activities of a foreign investor, which worsen his situation compared to the one that existed at the date the investment project was financed, such regulatory acts are not applied to the investor during the payback period of the project, but not more than seven years from the start of project financing. The "grandfather's clause" does not apply if changes to the legislation are made in order to protect the constitutional order, health, morality, the rights of others, the defense and security of the state.
In the event that a foreign investor fails to fulfill his obligations to implement priority investment projects, he is deprived of the benefits granted to him by the “grandfather clause”, and the amount of money 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's clause", since according to the Tax Code of the Russian Federation, any taxation issue is regulated exclusively by the legislation on taxes and fees.
— concept and types of foreign investments;
― the status of foreign investors;
― guarantees for foreign investments.
― concept and types of foreign investments;
The concept of investment is key in investment law, since any legal proceeding begins with a determination whether a particular investment is an investment or not. Where can we find the concept of investment? In national legislation or in international treaties (bilateral - BIT; multilateral - MIT).
Usually, investments are understood as tangible and intangible values of legal entities and individuals of one state, which are taken out of this state to the territory of another state in order to make a profit.
According to Russian legislation, foreign investment is understood as the investment of foreign capital in an object of entrepreneurial activity in the territory of the Russian Federation. Under the 1999 Act, not all investments must receive 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 value of 1 billion rubles, where the share of a foreign investor is at least 100 million rubles.
The concept of investment varies everywhere – it can be wider, it can 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: “investments are understood as investments of investors of one country in the territory of another” (Ie we see that a very broad definition).
The most common way to divide investments into
Direct- investments that give the opportunity to exercise control over the enterprise;
Portfolio- the investor, by acquiring assets in the form of securities (shares, bonds), is not able to exercise managerial control.
― the status of foreign investors;
Who is an Investor? An investor is someone who invests capital. In investment law, the concepts of the investor differ as widely as the concepts of 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 established on the territory of the Russian Federation.
Many states seek to use foreign resources. But the factors of the negative impact 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 entities that are of strategic importance for ensuring the defense of the country and the 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 Control over Foreign Investments in the Russian Federation (CII).
Along with the question of whether a particular investment is an investment, the question often arises of whether this investor is a foreign one.
The case of Tokyo Tokeles v. Ukraine. The Ukrainian company has created a legal entity in Lithuania under the laws of Lithuania. The new legal entity invested in Ukraine. There was a dispute. Ukraine proved: 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 said that 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, but did not take measures to retain Italian citizenship. The arbitral tribunal said he did not meet the requirements for effective Italian citizenship. Therefore, jurisdiction was rejected.
― guarantees for foreign investment.
What is the specificity of the legislation on foreign investment? This legislation should be comprehensive. It must be stable. Further, there are almost no conflict of laws rules in the investment legislation (states try to regulate foreign investments in their country independently). The investment legislation should establish the legal regime for foreign investors (national regime, 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 regime provided) - most often this is a ban on investing in certain industries or enterprises. The latter is done, as a rule, to protect domestic producers.
Providing national treatment- foreign investors are given a treatment no less favorable than domestic investors, i.e. foreign investors are actually equated to domestic ones.
Providing most favored nation treatment- 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 activities and use of profits received from investments provided to Russian investors.
In Russia there is a so-called regulatory procedure for investments, according to which prior permission for admission is not required. The exception is investments in strategic areas - a license is required.
The Foreign Investment Law of 1999 provides for a number of guarantees for foreign investors:
Guarantee of legal protection of activities;
Guaranteed use by a foreign investor (FI) of various forms of investment;
Guaranteeing the AI's right to purchase securities;
Guarantee of participation of AI in privatization;
Guaranteeing the transfer of the rights and obligations of the AI to another person;
A guarantee to ensure proper resolution of the dispute arising in connection with the implementation of investments;
Guarantee of AI right to unhindered export of property and information outside Russia;
Guarantee of compensation in case of nationalization and requisition of AI property, etc. (see law).
Guarantee of granting the right to land plots - there are certain restrictions for AI to acquire land plots in the property: they cannot have the right to property memory located in the border areas or special areas (where strategic facilities, military facilities are located). Special regime in relation to the right of ownership of agricultural storage. AIs cannot own such lots6 can only own such lots on a leasehold basis.
A grandfather or stabilization clause is a clause that guarantees the AI against an adverse change in the legislation that previously applied to it. But there are limitations: the reservation does not apply to changes that are made to the 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, which determines the national regime for regulating investment work and establishes uniform principles, methods and mechanisms for the interaction of foreign investors as economic entities. relationships, as well as government bodies.
According to the statement of the President of the Russian Federation at the Foreign Investment Council, 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, they are one of the positive phenomena. But when implementing investment projects in the realities of Russian legislation, numerous problems arise that are caused by a new institution of investment, as for Russian legislation. Taking into account this factor, taking into account the last twenty years, regulatory legal acts have been adopted in the state, which have become the main ones, as well as interstate agreements have been implemented 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 kind of legal regime exists for foreign investment.
Legislative regulation of foreign investment
The legislative framework and current legal doctrine in Russia implies the regulation of foreign investment both at the interstate and at the domestic level.
Taking into account the main provisions of the current Constitution, the implemented international acts have the highest legal force. Therefore, it is logical to start the review of the legislative framework with international agreements and conventions.
The two conventions of greatest practical value for foreign investors in the Russian Federation are the Seoul (or MIGA), which Russia has been a party to since 1992, and the Washington Convention, which was signed by representatives of 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, which is the other side of the agreement.
The Washington Convention was created to protect private investors from the recipient state (the one in whose legislative field the investment is made). The convention itself presupposes the jurisdiction of investment disputes not to the domestic legislation of the country, not to national courts, but to a special created international body, which was created under the control of the IBRD. The Convention was signed in the Russian Federation in 1993, but has not been ratified to date. This convention is a kind of guarantee for investors, which provides an impartial, unbiased and comprehensive consideration of an investment dispute in the event of one.
The Seoul Convention was created in order to protect private investors from possible non-commercial risks (in particular, political ones). Thanks to this convention, a special international organization was created that deals with (International Investment Guarantee Agency). Guarantees are given in cases where the justification and commercial feasibility of the investment is proved. The Agency provides coverage for several types of risks, including civil unrest, hostilities, expropriation or like that situations. As of 2013, there are more than 170 member countries of the Seoul Convention in the world.
In the CIS, an agreement was adopted, acting as a guarantee of investment. In 1997, the Convention on the Protection of Investor Rights was signed in Moscow.
We will not delve into individual details of the legislation, but only note that the essence of the convention is the combination of the general principles of the two above-mentioned conventions, taking into account the legislation of the CIS countries. Note that since 2007 the Russian Federation has not been a party to this convention due to the fact that all existing legal relations with foreign investors are regulated by bilateral agreements with each individual state.
In the legislative framework of the Russian Federation, there are at least several dozen international agreements between the parties on the protection of investments with a number of countries of the European Union, the Baltic countries, the Scandinavian Peninsula, Japan and some other developed Asian countries. Analyzing a number of intergovernmental agreements, we can conclude that there is a single pattern in all regulatory legal acts, which manifests itself in the form of fixing norms that guarantee the compensation of 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 at least fifty and which directly stimulate an increase in foreign investment.
Legislative base of the Russian Federation on foreign investments
International legal acts and the established international mechanisms for the protection of foreign investments are more effective and unbiased for investors, however, national 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 1990s and the 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 activity", 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 that restrict them in certain types of activities, as well as the possibility of withdrawing capital 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 bill regulating the commercial concession agreement with the participation of foreign investors has not yet been implemented. 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 own funds in a certain area 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 (level of socio-economic development) and managerial features (functioning of executive and legislative apparatuses) . And despite the fact that the state positions its own policy and legislative framework as favorable for the receipt of large amounts of investment from abroad, the problem of the existence of a barrier in the form of national legislation still exists.
The 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 paper from 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 overall economic, political and legal stability.
Legal guarantees for foreign investors in the Russian Federation
The existing law on foreign investments establishes the following provisions, which are guarantees for foreigners who plan to invest in the Russian Federation:
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Conclusion: on the given period time, foreign investors are offered extensive rights and opportunities to Russian market, and the current legislation, even taking into account conflicts and imperfections in some investment issues, creates favorable conditions for foreign investors. Considering this factor, taking into account the last twenty years, the state has adopted regulatory legal acts that have become the main ones, as well as developed special mechanisms that represent a special state regulation foreign investment. How true and effective they are can be checked in the statistics on the amount of investments that came to the Russian Federation from abroad.
Sargsyan Georgy Robertovich - post-graduate student of the Modern Humanitarian Academy (Moscow).
Formation and development of legal regulation of foreign investments in modern conditions reflects the specifics of the transition period experienced by Russia. The foreign investment regime is the regulation of business activities carried out in the conditions of 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 of development of a particular state.<1>.
<1>Bogatyrev A.G. Investment law. M., 1992. S. 8 - 13.
Despite the significant experience gained 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 poor development of the topic. Here, a comprehensive analytical approach to research within the framework of international investment law, located in the system of international economic law, can help.
Many states set a number of barriers to foreign citizens and companies in the course of their admission to investment activities in 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 branches. In some cases, governments, at the request of their employers, protectionist policy wanting to protect them from competition with foreign companies. Therefore, many states establish restrictions or special conditions for the admission of 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 the admission of foreign investment to its territory; guarantee foreign investors high standards of treatment, including fair and equitable, non-discriminatory treatment, most favored nation treatment or national treatment; provide legal protection under international law and guarantees for investments, especially in relation to the transfer of funds and expropriation, including standards for compensation to be paid, and thereby reduce the possibility of arbitrary nationalization; guarantee access to international means of resolving disputes in case they arise, etc.
It should be especially noted here that international investment law does not contain a uniform definition of the concept of foreign investment. This is explained by 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. Because of this, the definition this concept depends on the content and purpose of the regulation.
Despite the lack of a generally accepted understanding in the literature legal content concept of foreign investment, we should adhere to, in our opinion, the 1985 Seoul Convention on the Establishment of MIGA, according to which the constituent features of this legal category are three mandatory conditions:
- that the investment be expressed as 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 during the implementation of investment activities there is a minimum entrepreneurial risk.
But, in addition, long-term investment relations should be directly established, in our opinion, between the investor and the entrepreneur in the sector of the real economy, and the investor should also be able to manage the enterprise invested by him.
The legal nature of foreign investment relations is such that they need special legal regulation. Foreign investment relations, having inherently a private law character, at the same time need international legal public regulation. By the way, this is the main goal of our scientific research. In other words, a multifaceted complex of relations is evident, the participants of which are participants of various ranks in terms of their legal origin. Moreover, in connection with the above controversy, we especially emphasize that the subjects of international investment relations do not always act as owners, that is, owners, users or managers of property benefits in material terms, that is, investments.
For example, the state as the main subject of international investment law plays a leading role in ensuring the legal protection of foreign capital on an international basis. At the same time, in the field of foreign investment, as a rule, it does not act as a participant in international private law property relations. In this case, the state primarily plays 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 branch both in the system of public international law (PIL) and in the system of private international law (PIL) at the same time, 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 determining 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 rules defining the legal forms of regulation of foreign investment are fixed. On the other hand, international legal investment norms, enshrined in international universal and bilateral treaties and which are integral part 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.: Wolters Kluver, 2005. S. 47 - 86.
The legal regime of foreign investment predetermines the set of principles and rules of international and domestic law that determine the regime of foreign investment 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 domestic law is the law of the State in whose territory the investment is made, and not the law of the State from which the investor originates. However, the instability of national legislation and the general lack of political and economic instability force a foreign investor to seek protection in international legal forms of regulation of international investments. The investment guarantee mechanism is understood as a set of mechanisms that transfer financial consequences arising from certain political risks from an international investor to a special body of domestic or local law.<3>.
<3>Carro D., Zhyuar P. International economic law. Per. from fr. / Nauch. 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 legally ensuring the security of capital. concept legal regime investments and the concept of state guarantees are interdependent and interconnected with each other. The legal regime is assumed to be a set of norms of national and international law that 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 warn or punish state bodies that impede normal investment activity.
International law does not oblige a foreign investor to enjoy more favorable treatment than the national one. It does not, in principle, oppose domestic investment being treated more favorably than foreign investment. 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 equitable treatment of foreign property.
The theory and practice of international investment law divides foreign investment regimes into absolute and relative. The former are based on the principles of full protection and security, non-discrimination, fair and equitable treatment, the obligation to comply with obligations relating to investments, treatment within the framework of international law. The latter are most favored nation treatment and national treatment.<4>.
<4>Evteeva M.S. International bilateral investment agreements. M., 2001. S. 21 - 22.
The principles of the absolute regime of foreign investment are aimed at ensuring the full protection of foreign investment. Fair and equitable treatment is, as noted above, a traditional custom in international law closely related to the classical definition of so-called "due 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 equitable treatment means the minimum international standard which forms part of customary international law". According to this view, this standard embraces its system of international legal principles, including the principle of non-discrimination, the duty to protect foreign property, and the international minimum standard.
As you know, some developing countries 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 promotion and mutual protection of investments, the so-called DND<5>, takes the definition of a common legal regime. This is because a clear indication of 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 investment of the terms of the regime, which has received the name "absolute standard regime" in international legal practice. Such a regime assumes a general characteristic of the regime granted to foreign investments: "equitable" 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 "favourable 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-capital recipient to protect foreign property.
<5>Russia has entered into agreements with more than 50 states.
The concept that "management should not be hindered in any way by unjustified or discriminatory measures" seems to be very similar to a minimum international standard. The concept is believed to refer to such cases that took place shortly after the Iranian Revolution. In this case, in conditions of tolerant attitude, tacit support, and sometimes encouragement from some state structures significant commercial damage was inflicted, which in many cases took the form of outright 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, have been formed and developed for a long time, that is, in the course of the evolution of the international legal mechanism for the protection of foreign capital. Historically, gradually making their way for themselves, even today they have not turned into some kind of dogma that deserves universal recognition. 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 debatable. for instance, G.M. Velyaminov argues that "general international law does not contain any clear and universally recognized principles and norms regarding the regime of foreign investment"<6>. In addition, the problem is particularly complicated by the fact that the legal regulation of foreign investment cannot be based only on the national regulatory framework or only on the principles and norms of international law, albeit in the manner prescribed by the treaty. An absolute axiom: a combination of national and international legal norms and methods of regulation is required. The mechanism of legal regulation of international investment 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 investment, as already mentioned, from the moment of their establishment until the moment of their liquidation. The principles and rules of international investment law derive either from non-treaty sources, especially from general principles of international law, or from conventional sources; both multilateral and bilateral treaties and agreements. The action of the basic principles of international law in the legal regulation of foreign investment has almost lost its former sharpness today 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. Moscow: Wolters Kluver, 2002.
As for the principles and norms of national law, they are developed by the recipient state of capital. Legislative or by-laws in this area reflect the choice of a state-defined policy regarding foreign investment. 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 pursued.
In the course of the evolution of international investment law, there has been a transformation of 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. In conditions when developing countries tried to assert their unconditional right to regulate international investments, and there was no conventional system of legal protection of foreign investments, it was beneficial 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 provide a favorable treatment for foreign investment, developed in a zigzag manner, which was caused by fundamental contradictions between the countries of the North, the exporters of investments, and the countries of the South, their importers. This development has gone through three stages, although their time frames are rather arbitrary.<7>:
<7>Farkhutdinov I.Z. Decree. op. pp. 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 the South of common principles in 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, investment guarantees, on the other, are closely related to each other. The 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 internal or local law that prevent or punish encroachments of public authorities for violating the norms and rules, means of regulating foreign investment activities.
But the whole problem is that investment guarantees are provided within the framework of domestic legislation. As is known, the interests of the recipient state and the foreign investor often diverge, and therefore these two parties have different points of view on providing legal guarantees for foreign investors.
The state on whose territory foreign investment activity is carried out seeks to use its internal guarantees, which allows it to receive the greatest concessions. The country of origin of a foreign investor is more preferable to the mechanisms of international law, since the use of international guarantees allows him to reduce concessions in the field of investment protection<8>.
<8>Carro D., Juard P. Decree. op. pp. 375 - 376.
The constituent, interdependent elements of the general principles of international law in the area under consideration are following rules. First, the national rules governing the investment regime, if they contradict, should be brought into line with international rules if necessary. Secondly, international law does not prevent international investment from being given or given preferential treatment over national investment. Third, international law prohibits some differential treatment that places foreign investment at a disadvantage compared to domestic investment.
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 solely under the influence of the developed countries, when the developing states 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, through mutual compromises, to find a golden mean, 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 dis. doc. legal Sciences. M., 2006. S. 12.
The goals and principles of international investment law are determined by the goals and principles of international law as a whole. The UN Charter, which has formally universal competence in the field of international economic relations, paid special attention to economic cooperation, a very significant part of which is international investment cooperation. In accordance with the UN Charter, the objectives of international economic cooperation are: promotion of economic and social development states<10>.
<10>Velyaminov G.M. Decree. op. pp. 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. However, not all states require the approval procedure for all foreign investments. Many governments have an "open door" policy, but government-approved investments receive various benefits. A special procedure for approving 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. pp. 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 host 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 obligations of a fair, favorable attitude towards foreign private property, as well as ensuring its normal functioning, is a mandatory norm of international law.
Depending on the functional orientation, 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 activities of a foreign investor;
- devoted to the issues of granting benefits to foreign investors;
- regulating rules for insurance of foreign investments;
- 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 as legal categories make it possible, to a certain extent, to use certain categories and concepts of domestic law and general theory 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 required, in turn, the strengthening of activities for international legal and domestic unification of legal norms in various areas of correlation between the norms of international and national law.
The norms and rules governing the procedure for insuring foreign investments are of fundamental importance in the system for ensuring successful foreign investment activity.
International legal norms establishing uniform forms and investment dispute settlement methods are also one of the cornerstones of international investment law. This is explained by 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.
Implementation of international and international agreements generally accepted on a multilateral and bilateral basis investment norms requires close and similar, uniform 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 international contractual unification of law, it should be noted that this form of interaction between international and national law is one of 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 tool when studying the features of the implementation of international investment norms in national legislation? It is believed that the most successful way to implement international legal norms in domestic law is the implementation<13>.
<13>Farkhutdinov I.Z. Decree. op. pp. 362 - 371.
The main task of implementation in the field of foreign investment is the implementation of the goal of international norms by the forms and methods of national law. By virtue of the obligation voluntarily taken by the state to unquestioningly comply with the terms of an international treaty, ensuring the fulfillment of the goals and norms of international investment law must be achieved as a result of changes, additions, abolitions or the adoption of new norms in domestic legislation. Thus, in the course of implementation, domestic legislation is brought into line with the norms of international law.
A fundamental place in bilateral treaties on the promotion and mutual protection of investments is the definition of a general legal regime. This is because a clear indication of 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 investment of the terms of the regime, which has received the name "absolute standard regime" in international legal practice. Such a regime assumes a general characteristic of the regime granted to foreign investments: "equitable" 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 "favourable 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 absolute majority of Russia's bilateral treaties contain the term "fair and equal" regime. "Each of the Contracting Parties shall ensure a fair and equitable treatment of investments by investors of the other Contracting Party and shall not, by taking unjustified or discriminatory measures, impede the exploitation and management of investments made by these investors. Each of the Contracting Parties shall ensure full security and protection of such investments," it says. , for example, in the Agreement between Russia and the Kingdom of the Netherlands.
Incidentally, the norm "fair and equal treatment" is largely declarative. It fixes the will of the state to encourage foreign investment, to conduct a benevolent policy towards foreign investors. More specific wording of the bilateral treaty is contained in subsequent articles, which refer to the granting of most favored nation treatment or national treatment to foreign investors.
The establishment of the most favored nation regime is mentioned in bilateral agreements 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 the Mutual Encouragement and Mutual Protection of Investments, which states: "Each of the contracting Parties in its territory and in its maritime zone will apply to investors of the other Contracting Party in regard to their investments and related activities, treatment no less favorable than that accorded to investors in any third country.”
"The regime is no less favorable than in relation to investments of investors from third countries," establishes Article 3 of a similar Agreement between Russia and Germany. The same article states 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, the investments of such investors, as well as the activities of investors related to with investment."
Russia's bilateral treaties 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 a provision that each of the contracting states undertakes to grant to the other contracting state in one or another sphere of their mutual relations specified in the contract the rights, advantages, privileges and benefits as favorable as those that it provides or will provide in the future to any third state. The formula "which it grants or will grant in the future to any third State" covers the treatment enjoyed by any third State, whether based on an international treaty, national law or practice<14>.
<14>Usenko E.T. Most favored nation treatment in Soviet-American trade relations // SGiP. 1987. N 9. S. 85; Voitovich S.A. Most favored nation treatment in trade and economic relations // SEMP, 1987. M., 1988. S. 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 especially noted that the most favored nation treatment cannot be confused with or identified with the non-discrimination regime. The principles underlying these regimes have different content. The essence of the principle of non-discrimination lies in the right to demand such conditions as are used by all, that is, general conditions, the same for all.
The essence of the principle of most favored nation is the right to demand preferential, privileged conditions. Therefore, the most favored nation treatment implies a 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 universally binding customary legal norm and therefore does not need treaty 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. S. 42 - 48.
It is noteworthy that the UN International Law Commission on Non-Discrimination stated quite clearly that this is a "general rule arising from the equality of states"<16>, "the general rule arising from the sovereign equality of states"<17>.
<16>Gearbook of International law commission. 1958.V.II. P. 105.
<17>Ibid, 196. Vol. 11. P. 128.
It should be especially noted that in addition to the provision on the most favored nation treatment, our country has pledged to provide foreign investors with national treatment.
The principle of national treatment in countries with advanced economy is fundamental in relation to investment activity. When granting a national regime to foreign investments, national and foreign entrepreneurs act on the market, with some exceptions, as equal subjects.
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 instance, in the Agreement with Spain Art. Article 5 states that "Each Party, in accordance with national law, will accord to investments made by investors of the other Party treatment no less favorable than that accorded to its own investors."
A similar addition is contained in Art. 3, paragraph 4 of the Agreement with Canada: "... to the extent possible and in accordance with its laws, it grants to the investment or income of investors of the other contracting party treatment no less favorable than that which it accords to the investment or income of its own investors."
The fact 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 foregoing additions to the most favored nation treatment granted to foreign investors testify to the desire to create more favorable conditions that are consistent with national treatment as a principle of subjecting foreign investors to business rules established for Russian businessmen. In paragraph 1 of Art. of this Agreement stipulates the provision of the most favored nation treatment: each of the parties is provided with "a treatment no less favorable than that which you provide" to the investments and incomes of investors of any third state. "The next paragraph of the same article stipulates the conditions for granting "a treatment no less favorable than , which is provided to investors of any third country".
Paragraph 3 of Art. 3 directly speaks of the application of national treatment to foreign investors. That is, "equal treatment given to the 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 "to the extent 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. Paragraph "p" Art. 1 states that "national treatment means treatment which is at least as favorable as that accorded by a Party to companies or nationals of third countries in similar circumstances".
The "mixed" regime is referred to in the Agreement between Russia and the Republic of Korea on the encouragement and mutual protection of investments. In it, the parties reciprocally grant investors the right between most-favoured-nation treatment and national treatment: "Each of the Contracting Parties shall accord in its territory to the investment or investment income of the investors of the other Contracting Party treatment no less favorable than that which it accords to the investment or investment income 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 investors of contracting states and the contracting state receiving the investment. So, for example, in the Agreement between Russia and Korea, paragraph 3 of Art. 3 provides that "each of the Contracting Parties reserves the right to establish or maintain, in accordance with its current legislation, limited exemptions from national treatment granted in accordance with paragraphs 1 and 2 of this Article."
It is noteworthy that in the Agreements with Canada and France, when determining the investment regime, a direct reference is made to the general principles of international law. for instance, "each of the parties undertakes to provide in its territory ... to 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 granting the regime of an absolute standard, in the opinion of experts, means that when resolving certain issues in the course of investment activities, reference to the norms of international law is not excluded. If the condition of an international agreement contains a direct reference to the norms and principles of international law, then the interpretation of such categories as "fair" and "equitable" treatment should be given in accordance with the understanding of these categories adopted in international law. The absence of reference to international law allows the contracting parties to interpret these categories 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 treatment (MFN) was a feature of interstate trade agreements. The states connected with each other by a system of trade relations were interested in it. 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 terms of international trade in a preferential direction, also changes the terms of trade in relation to its counterparty under the agreement, and also in a preferential one. side. In order to avoid the loss of benefits in international trade obtained by mutual concessions, each state tries to ensure the right to any other and greater benefits that can be granted to its rival in international trade, some other state. In the modern economic struggle for the development of new foreign markets, not a single state can rely on its own strength so much as not to be afraid of especially preferential treatment with other states.
Having concluded an agreement with a condition on the MFN, the state can be sure that the conclusion by its counterparty of a preferential agreement with a third state 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 agreement or a system of bilateral MFN agreements that would bind a whole group of countries may be required. Thus, a single trade regime would operate for the whole region (for example, a trade regime between EU member states or a 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 granted to trade between colonial countries and their mother countries, 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 treatment - preferential.
Consequently, the most favored nation treatment can be granted both on the condition of reciprocity and without it. In the case when 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 the mutual encouragement and protection of foreign investment, trade treaties, shipping treaties) and 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 must be borne in mind that any type of regime is rarely applied in a "pure" form - for each of them, various exceptions and exemptions are possible, the list of which is either contained in international treaties or established by the state in unilaterally domestic law rules. At the same time, depending on the nature of the exemptions from the regime, preferential or restrictive regimes for investors' activities are distinguished. What types of activity regimes are typical for the modern legal regulation of the investment activity of foreign investors? The conditions on the modes of activity contain a wide variety of international agreements - multilateral and bilateral treaties, and above all various trade agreements, partnership and cooperation agreements, as well as bilateral agreements on the encouragement and mutual protection of foreign investment.
At present, more than 50 agreements on the encouragement and mutual protection of foreign investments are in force for the Russian Federation. 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 must 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 entry into this organization will entail the spread of a special regime for Russian goods and investments in the world market. Of particular importance for determining the mode of activity of Russian investors in the Western market is the Partnership and Cooperation Agreement signed by Russia and the European Union on June 24, 1994. Special modes of activity for investors within the CIS are provided for by the Agreement on Cooperation in the Framework of Investment Activities of December 24, 1993. In addition, provisions on the regime of investment activities within the CIS are contained in the act of the Inter-Parliamentary Assembly of the States - Members of the CIS "On general principles regulation of foreign investment in the states - participants of the Inter-Parliamentary Assembly" 1994.
An analysis of Russia's bilateral investment agreements allows us to conclude that the following types of regimes can be provided to foreign investors. The most favored nation treatment is provided for, for example, in agreements on the encouragement and mutual protection of investments: with the Republic of Austria (Article 3), in Art. 2 of the Agreement between the USSR and the Kingdom of Belgium and the Grand Duchy of Luxembourg, Art. 4 of the Agreement with the Netherlands, Art. 3 of the Agreement with Germany, Art. 3 Agreements with the Republic of Finland. These Agreements provide that the regime for the activities of investors on the territory of the contracting parties will be no worse than the regime granted to investors of third countries.
Certain difficulties are caused by the definition of the specific type of the national NB treatment provided - is it a partial or full most favored nation? Agreements with Austria, Belgium and Luxembourg, the Netherlands, and China provide for the establishment of a regime that should be “no less favorable than the regime granted to capital investments and activities in connection with capital investments of any third state. Agreements with Germany and Finland provide for a regime “no less favorable, than with regard 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 committed themselves to treat each other no worse than with any third state .
Thus, the parties to the agreement can only claim those favorable conditions for the activities of investors that are provided for all third states (any of them), thereby limiting 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, article 3 of the Agreement with Austria, article 2 Agreement with Belgium, paragraph 3 of article 3 of the Agreement with the Netherlands, paragraph 3 of article 3 of the Agreement with China). Such agreements may relate to a free trade zone, a customs union, an organization of mutual economic assistance; tax matters, cross-border trade. That is, in this case we can only talk about the partial most favored nation treatment.
The conditions for the regime of investors' activity are formulated somewhat differently in the Agreements of Russia with the participation of the Federal Republic of Germany 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 with regard to investments by investors from third countries". Apparently, here we are talking about specific third states, which are provided under special agreements with special benefits compared to general conditions activities of foreign investors. At the same time, the Agreements provide for a condition traditional for the MFN not to apply discriminatory measures to investors of the counterparty that would put them in a worse position than investors of other states. In this case, we are talking about granting the most favored nation. Based on the foregoing, it can be concluded that investment protection agreements provide for different types of MFN for foreign investors, thus putting their investors in different legal positions. 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 additional differences between them content cannot be identified by analyzing the relevant articles. Moreover, the Agreements with Germany and Finland (full MFN) and the Agreements with Austria, Belgium and the Netherlands (partial MFN) provide for the same list of exceptions from the MFN (border trade, customs union, tax issues, etc.). Therefore, although it is doctrinally possible to identify discrepancies in the content of the MFN in these agreements, the full MF regime will still operate, in which the parties are most interested and which was probably implied when these agreements were concluded. Therefore, we can conclude that if the agreements refer to the MFN, then it means, first of all, complete absolute favored nation.
Moreover, the condition for granting a non-discriminatory regime of activity, which, as already mentioned, is one of two types of conditions for the full most favored nation, is contained in certain agreements on the encouragement and mutual protection of foreign investment in special articles, not coinciding with the second condition - the condition of the full most favored nation. favored. An example is the provisions of the Agreement between the Russian Federation and Kuwait. Paragraph 2 of Article 2 of the Agreement establishes: "The investment of investors of one of the Contracting Parties shall be given a fair and equal treatment, as well as full protection and security in the territory of the other Contracting Party. None of the Contracting Parties shall inflict damage on its territory to investors of the other Contracting Party by adopting unreasonable, mandatory or discriminatory measures in relation to the management, maintenance, use, possession or disposal of capital investments. In turn, paragraph 1 of Article 3 directly provides for the most favored nation condition itself, the right to a particularly preferential treatment in comparison with a simply non-discriminatory regime: each of the contracting Parties provides capital investments made in its territory by investors of the other Contracting Party with a treatment no less favorable than one that it provides for 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 favorable condition for investors is established in international agreements on the 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, a state can always expect that any privilege or advantage regarding the importation of goods, customs duties, tariffs or excises, import quotas and all other issues falling 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 may not be afraid of the special advantages and benefits that a company in another country may have. In fact, by concluding a number of agreements with the condition of providing the MFN, a kind of unified regime of activity is introduced for all foreign investors in the territory of one state.
However, the same starting conditions for penetration into 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, who is very actively protected by the state itself, which accepts investments - the national investor.
When entering the national market, a foreign company may face special regulation its activities, which may put this company in an unequal position compared to local firms. The state, as a support for its own investors, can quite severely restrict the rights of foreign firms by establishing a special procedure for access to entrepreneurial activities, prohibiting foreign presence in certain industries, etc. Therefore, any company operating in the foreign market prefers to be equalized 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 mutual encouragement and mutual protection of foreign investments, seek to achieve the inclusion in these agreements of the condition for granting their investors a national regime of activity. At the same time, the state does not want to lose for its investors those benefits that are provided to them by the MFN. Therefore, at present, the most common type of regime for foreign investors is a combination of MFN and national regime.
The provision of MFN and national treatment is simultaneously provided for in agreements on the promotion and mutual protection of foreign investment concluded by Russia with the following states: Korea, Greece, Denmark, Poland, Romania, Kuwait. Agreements with these states imply 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, which involves 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. Therefore, 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 their own investors, MFN will apply to counterparty investors. When changing the investment policy of the state and providing national investors with more benefits and privileges, national treatment will apply to counterparty investors. A similar type of regime is provided for in Russia's agreements with Denmark and Kuwait.
Agreements with Korea, Poland, Romania, and Slovakia provide, in principle, the same regime of activity for investors, but they formulate the definition of the regime in a slightly different way: the choice of the MFN or national regime is not determined by the condition of the greatest profitability of the regime for the investor at the moment. "Each of the Contracting Parties shall accord in its territory to the investments or incomes of the other Contracting Party treatment no less favorable than it grants to the investments or incomes from investments of its own investors or investors of any third state" (clause 1, article 3 of the Agreement with Korea, para. 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. In applying these provisions, difficulties will inevitably arise in determining the specific type of treatment that investors in these states can apply for. It seems that the mode of their activity can be determined in one of the following ways: 1) use the principle applied in the agreements with Denmark and Greece - the mode will be provided based on its current profitability; 2) investors can choose the type of regime for their activities themselves - in this case, the problem of applying the regime by the investor in relation to various state bodies will arise; 3) the type of regime will be determined by the state receiving the investment.
Such wording of the articles of agreements that provide for alternative regimes for the activities of foreign investors creates a special problem of determining a specific type of regime in relation to investors in 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 and the benefits it provides is to conclude a special investment agreement between the investor and the state hosting the investment.
The Declaration on International Investment and Multinational Enterprises, prepared by the Organization for Economic Co-operation and Development (OECD), recommends that the member states of this international organization treat each other's investors and investments on an equal footing with their own investors. The provision of such a regime is an undoubted advantage for foreign companies operating on 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 a developed, stable economy that are not afraid of economic intervention from other states, and the principle of national treatment extends developed countries for investors of each other, for investors of developing countries can act special types modes of activity.
When granting national treatment, national legislation does not provide for special conditions for the activities of foreigners, extending to them the same rules as for national investors. Therefore, in some states there is no special legislation designed exclusively to regulate the activities of foreign companies and entrepreneurs. If some aspects of the activities of foreign investors require special regulation (for example, in matters of the procedure for establishing and registering companies, the licensing procedure for allowing investors to use natural resources, etc.), then such special rules will be contained in general regulations intended primarily for national investors, as exceptions to the general rule. It is this approach in regulating the activities of foreigners that the United States adheres to.
Other states, while giving investors national treatment, nonetheless develop special legislation to regulate their activities in the form of special laws or codes on investment activity, as well as in the form of special administrative regulation of foreign investment. It is this approach that the Russian Federation, as well as other countries of the Commonwealth of Independent States, currently adheres to.
It is generally accepted that the granting of national treatment allows the adoption by the state of certain exemptions from it for foreign persons. It should be noted that none of the agreements on the mutual protection of investments considers the rules for the admission of foreign investment 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 investments by investors of the other Contracting Party and to allow such investments in accordance with its legislation" (Agreement with Switzerland - clause 1, article 3). The articles are entitled respectively "Acceptance and protection of investment" and "Promotion of investment".
6. Legal regime of foreign investment
Foreign investment - these are tangible and intangible assets owned by 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 bases on which investments can be classified is property ornon-property their character. Under non-property investments should understand the rights to inventions, industrial designs, layouts of integrated circuits; as well as specific technological information (know-how), production 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. Their hallmark is an material expression: finance, material values.
Another basis for classifying 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 enterprises, 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 require foreign investors to receive dividends on shares and securities, i.e. on the capital invested in these enterprises in the form of money.
Depending on the source of funding foreign investment can be divided into state, which are carried out in the form of loans and loans 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 international private law are legal relations, arising from 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 the protection of foreign investment at the interstate level (for example, the Convention on the Procedure for Settling Investment Disputes between States and Foreign Persons, 1965; the Convention on the Establishment of a Multilateral Investment Guarantee Agency, 1985); regional international treaties (for example, agreements of the CIS countries) and bilateral agreements(here we can talk about both agreements between states on the protection of foreign investments, elimination of double taxation, and agreements between states and international organizations - IBRD, EBRD, EU).
To date, 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). Main the idea of the Convention- provide foreign investors financial guarantees against non-commercial risks through investment insurance.
Depending on which non-commercial risks are covered by the Agency, the following types of insurance mentioned in the Convention can be distinguished.
1. Currency transfer. This type of insurance protects the investor from losses associated with the inability of the investor to convert funds into local currency(income, repaid debt, interest on debt capital and other payments) to take them out of the country. At the same time, however, it should be taken into account 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 against "any legislative or administrative action or omission by the host government that would deprive the holder of the guarantee of 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. The given position according to general rule should not concern acts of terrorism directed directly at 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 conditions 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) such authority is prevented by unreasonable delay as defined in the guarantee agreement; 3) after the final decision in his favor, the foreign investor cannot achieve its implementation. In the presence of any of the three conditions, the Agency pays compensation.
An example of regional agreements in the field of foreign investment is Agreement of the CIS countries "On cooperation in the field of investment activity" dated December 24, 1993. In accordance with this agreement, the parties undertake obligations cooperate in the development and implementation of investment policy; take action to convergence of its legislation on investment activities and other measures. The agreement applies not only to private foreign investment, but also to the state.
For foreign investors The agreement guarantees payment adequate, prompt and effective compensation in the event of nationalization(Art. 7); unhindered transfer to member states arrived received from investment activities (Article 8); exemption from customs duties on property taxes, imported from other states as a contribution to the authorized capital of the 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 activity March 28 1997 within the framework of the CIS, the Convention on the Protection of the Rights of the Investor 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: 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 the investors of each party shall at all times be accorded fair and equitable 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 current international treaties create a unified mechanism aimed at protecting foreign investment and proceed from certain unified principles of legal regulation of investment relations.
A feature of the national investment legislation is that it does not apply the conflict method of regulation and its norms directly regulate the relationship between a foreign private investor and the state.
In host states, foreign investment may be granted national treatment, most favored nation treatment or privileged treatment.Under the national regime foreign investors carry out their activities on the same terms as domestic investors, with some exceptions. Under the most favored nation foreign investors are provided with equal conditions for the implementation of investment activities without providing any advantages to some of them. Privileged Mode (preference regime) is to provide certain benefits for the import of raw materials and equipment, exemption from customs duties and taxes, etc.
Host states may take measures to restrict foreign investment, which are as follows: 1) prohibition of the activities of a foreign investor in certain sectors of the economy; 2) establishment of special state control over the admission of a foreign investor to the development of subsoil and natural resources; 3) mandatory share participation of the state in enterprises created by a foreign investor; 4) establishment of a special fiscal regime; 5) determination of the 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 resolutions 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 in the territory of the Russian Federation in the form of objects of civil rights owned by a foreign investor, if such objects of civil rights are not withdrawn from circulation or are not limited 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 having 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 in 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. Limiting exceptions for foreign investors may be established by federal laws only to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state. 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. At the same time, 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 are guarantees for foreign investors' investments. The list of these measures has expanded significantly compared to 1991, when the first Russian law about foreign investment. 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 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 from adverse changes in legislation RF; ensuring 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 unhindered export outside the Russian Federation of property and information in documentary form or in the form of a record on electronic media that 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 real estate (Art. 5-15).
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