Rights Of Foreign Investors Research Articles

Protection of the rights of foreign investors during the state of war in Ukraine

The article is devoted to the study of the protection of the rights of foreign investors during the state of war in Ukraine. The author focuses on the fact that this topic is currently relevant due to the fact that the reconstruction of Ukraine will become necessary. The war caused the outflow of foreign investments from our country. In addition, corruption, pressure from the authorities, and unfair justice are the reasons why foreign investors leave Ukraine. Every investor aspires to work in a state where law and justice reign, so Ukraine, which aspires to membership in the European Union, should create just such a state. Therefore, its primary task is to create a favorable business climate for foreign investors to carry out their activities. Current Ukrainian legislation guarantees compensation and indemnification of losses to a foreign investor, guarantees are also provided in case of termination of investment activity; state guarantees for the protection of foreign investments are defined. In accordance with the Law of Ukraine «On State Support of Investment Projects with Significant Investments in Ukraine», the state provides support to large investment projects. In connection with the introduction of the state of war in Ukraine in 2024, the Law of Ukraine on the insurance of investments against war risks entered into force. The Cabinet of Ministers of Ukraine established a credit agency that provides investment insurance. Although the war made Ukraine unattractive to foreign investors, the authorities are taking all possible measures to improve the country’s investment climate. The author draws attention to the need to study and transpose the experience of successful countries in this regard. For example, Australia offers quite good conditions to foreign investors - consistent economic growth, highly qualified labor force, strategic location, efficient administration and judicial system, and good infrastructure. Mexico is also attractive to foreign investors, the «Invest in Mexico» business center has been created to assist investors. The war is an accelerant for positive changes in the state, and after its end, the reconstruction of Ukraine is an important task, therefore the efforts of all branches of government should be directed at overcoming all obstacles to the effective work of foreign investors in our state.

Perbandingan Hukum Penanaman Modal dan Investasi Di Indonesia dan Di Tiongkok

Indonesia and China are two countries with rapidly developing economies in Southeast Asia. These two countries have great potential to attract foreign investment. However, there are differences in investment and foreign investment regulations in the two countries. This research aims to compare investment and foreign investment laws in Indonesia and China. This research uses normative legal research methods with a comparative approach. Research data was obtained from literature studies, namely laws, government regulations and other related literature. The research results show that there are similarities and differences in foreign investment and investment regulations in Indonesia and China. Similarities include, recognition of the rights of foreign investors; providing incentives for foreign investors; and resolving investment disputes. The differences include the subject of investment, business fields open to foreign investment, investment requirements. From this research, researchers can draw the title, namely Comparison of investment law and foreign investment in Indonesia and China

Dispute Prevention Mechanisms as Legal Enclaves

This contribution examines the role of dispute prevention mechanisms (DPMs) in domesticating and broadening foreign investor privileges. Although conceived as a means of responding to the backlash against investor-state dispute settlement (ISDS), dispute prevention mechanisms are likely to produce legal enclaves whereby a privileged group of actors are afforded special treatment, and their interests are elevated into policy priorities. As currently conceived, DPMs are expected to operate as a regime embedded in domestic law, but replicating and amplifying investment law's emphasis on the exclusivity of foreign investor rights. Thus, the effect of DPMs is to anchor and extend foreign investor rights to a pre-dispute stage. By analyzing the premises and core features of the emerging DPMs, this contribution argues that, rather than addressing the systemic issues underpinning international investment law, the dispute prevention agenda will further expand and entrench foreign investor privileges.

Foreign investments in the Russian Federation during the period of sanctions: restrictions imposed and their correlation with the rights of foreign investors

The article analyzes the problem of the correlation between the restrictive measures introduced by Russia against foreign investors, as a response to sanctions from unfriendly foreign states, and the guarantees for foreign investors, provided for by treaties for the promotion and reciprocal protection of investments. After that many foreign investors stopped or suspended their activities in Russia. To protect the national interests of Russia and ensure the stability of its economy, restrictive measures have been introduced against foreign investors: a ban to transfer assets from Russia abroad, a special procedure to carry out transactions with foreign persons from unfriendly states. A bill on external administration has been passed. According to foreign experts, such measures can be understood as violation of international investment treaties, and may affect companies, whose investments in Russia can be expropriated without compensation, the investors may get protection under these treaties. Russia introduced the above restrictions in response to the sanctions of unfriendly countries against our country and the departure of foreign investors, in order to maintain stability in the economic sphere, in order to ensure the security of the state. The author concludes that such restrictions based on the doctrine of reasonable state regulation are legitimate, since the state is forced to protect the national economy.

Реформа правил арбитражного разбирательства в рамках системы урегулирования споров между иностранными инвесторами и государствами

The author's interest in the topic of the article is caused by the fact that in the conditions of the new geopolitical reality, international investment relations are changing very quickly, in connection with this, risks are increasing and therefore there is a need to strengthen the protection of the rights of foreign investors. In this article, the author examines important problematic issues of the autonomous system of dispute settlement between investors and states created by the Washington Convention of 1965. Since 2017 under the auspices of the UN Commission on International Trade Law, this system is being reformed in the direction of increasing the efficiency of its functioning. It concerns important aspects of this system and is aimed at improving the rules of arbitration procedure, improving the quality of work of arbitrators, strengthening the validity of decisions made by arbitrators on disputes, modernizing the procedure for financing disputes by a third party and ensuring its legal regulation by relevant legal acts, two such acts have already been developed and are currently being discussed by delegations of States and representatives of international organizations: Code of Conduct for Arbitrators and Regulation on the Financing of a Dispute by a Third Party. Comparing the provisions of these documents with each other and with existing legal acts, the author comes to the conclusion that their implementation in the Arbitration Rules will contribute to improving the efficiency of judicial proceedings, increasing the role of arbitrators in managing all the mechanisms of the judicial process, speeding up the terms of dispute resolution and reducing the cost of procedural costs.

Recent Cases in International Investment Law Involving Local Government on Investment Disputes

An understanding of the importance of regulating investment treaties and implementing measures in accordance with existing rules has been generally understood by States in foreign direct investment. However, the local government where the location of foreign investment activities is carried out has not received sufficient attention. As a result, various cases of international investment disputes have arisen caused by actions taken by local governments. This study discusses how the tribunal views and interprets actions taken by local governments in relation to violations of foreign investor rights. In the span of time over the past eight years, no less than six hundred cases of foreign investment disputes have been investigated. Of these, three available and final cases became the subject of discussion in research and became examples to link them with the legal skills of local government officials in mitigating the occurrence of foreign investment case disputes. The results of this study show that in terms of understanding the rules of international investment law, the government in the country can mitigate or handle the case better with foreign investment disputes.

ПРОБЛЕМИ ЗАЛУЧЕННЯ ІНОЗЕМНИХ ІНВЕСТИЦІЙ У ВОЄННИЙ ПЕРІОД ТА ШЛЯХИ ЇХ АКТИВІЗАЦІЇ

The purpose of this article is to investigate the challenges of attracting foreign investments into the Ukrainian economy in the contemporary era and to develop scientifically grounded recommendations for creating and enhancing mechanisms to activate this process in the conditions of war and the postwar period. Identified problems that hinder the attraction of foreign investments in Ukraine during times of war. The most significant of these are political instability, risks associated with the inability to ensure the safety of foreign investors, significant damage to infrastructure across most of Ukraine, financial constraints, legal risks, and the substantial loss of human resources, both due to the loss of a significant part of the working-age population and the mass forced migration caused by the war. The war in Ukraine has led to a decrease in overall economic activity, and a significant reduction in production and consumer demand, which has had a negative impact on business profitability. All of these factors have led to a loss of investor trust and their reluctance to invest in the Ukrainian economy in the near future. It is noted that attracting foreign investments during times of war requires a thorough risk analysis, the development of risk management strategies, and the implementation of measures to create a favorable investment climate. The article outlines measures that will reduce risks for investors and make Ukraine more attractive for foreign investments during wartime and post-war recovery. These measures include ensuring the security of businesses, investors, their assets, and employees; seeking international guarantees and support from international organizations or other states; developing and implementing clear, stable, and transparent investment rules; ensuring the protection of the property rights of foreign investors; strengthening the fight against corruption and increasing transparency in business operations; providing financial support for investment projects, including tax incentives, loans, and other incentives; conducting informational campaigns and advertising to promote Ukraine's investment potential and advantages among foreign investors; and developing international partnerships and cooperation with other countries, among other things.

On the classification of guarantees of the rights of foreign investors

On the classification of guarantees of the rights of foreign investors

Bridging the Gap between Foreign Investor Rights and Obligations: Towards Re-imagining the International Law on Foreign Investment

Bridging the Gap between Foreign Investor Rights and Obligations: Towards Re-imagining the International Law on Foreign Investment

Bridging the Gap between Foreign Investor Rights and Obligations: Towards Reimagining the International Law on Foreign Investment

AbstractThis article proposes to see the history of the international law on foreign investment as about the promotion of investor rights as much as the resistance to investor obligations. The argument is that the divide between investment protection and the responsibility of foreign investors is one of the most significant features of international investment law. The article shows that the different treatment of rights and obligations is grounded in the same business project and legal imagination. Maintaining this divide has never been easy, as this model faced resistance, particularly from Latin America, trade unions and human rights activists. The analysis concludes by noting that academics can contribute to reimagining the international law on foreign investment by bringing investment treaty law and business and human rights closer. This shift is already happening.

Local communities, extractivism and international investment law: the case of five Colombian communities

ABSTRACT This article investigates the relationship between the investment treaty regime and the social fabric of extractivist projects. Investment treaties are central to the political economy and narratives of extractivism. This international regime tilts the balance in favour of extractive projects by strengthening foreign investor rights and facilitating alliances between foreign investors and national elites. If states give in to environmentalist or local pressures, ISDS becomes foreign investors’ weapon of last resort: Investors can enforce their expectations in a forum where local communities have neither rights nor legal standing. This way, the investment treaty regime makes local communities invisible, contributing to the ontological occupation of territories. I illustrate these claims by examining the experiences of five Colombian local communities. The article also serves as an introduction to a Special Issue that continues discussing the case of Colombia, brings additional insights from Peru, and examines how local communities can speak more effectively.

Legal status of foreign investors and the role of their influence on the economy of the Russian Federation

Тhis study addresses the issue of determining the essence of such a phenomenon as the legal status of one of the categories of economic activity - a foreign investor. The author, pointing out the need for a deeper and more substantive understanding of the essence of such a provision in the domestic law enforcement model, draws attention to some features and problems of its effective protection. In addition, the author draws a parallel between the requirements of the legislation on this issue, and notes the positive dynamics, primarily in the aspect affecting the need to ensure guarantees in the implementation of the rights of foreign investors and their effective protection.

ДЕРЖАВНЕ РЕГУЛЮВАННЯ ІНОЗЕМНОГО ІНВЕСТУВАННЯ В УКРАЇНІ

The war, political and economic upheavals led to low investment activity, the curtailment of investment projects and the outflow of foreign investments from the Ukrainian market. In the conditions of the export of investment capital, without improvement of the investment policy and guarantees of capital security, business development and the inflow of foreign investments into Ukraine are impossible. Studying the specifics of state regulation of foreign investment activities will allow us to use the positive effects of foreign investment to improve the investment climate and develop investment infrastructure. The purpose of this article is to develop a system of measures to improve state regulation of foreign investments in Ukraine. The article examines the peculiarities of foreign investment activity in Ukraine. The scale of capital of non-residents in the economy of Ukraine is estimated. The following factors that reduce the country's investment attractiveness were identified: deployment of military operations in Ukraine; political and economic upheavals; significant withdrawal of foreign capital from the national economy; low activity of domestic investors under the influence of a number of macroeconomic factors; insufficient regulation of the investment process in Ukraine by the state; increasing internal and external debts. The shortcomings of the investment regulation system are identified: the inability of Ukraine to regulate legal relations and interests of investors with domestic legislation; ambiguous interpretation of provisions of legislative documents; a large number of regulatory acts that regulate the investment process; instability of national legislation in the field of investment; lack of guarantees of property rights of foreign investors; corruption in the investment sphere, etc. Measures to improve the regulation of foreign investments in Ukraine are proposed: harmonization of national legislation with the norms of international investment law; simplifying the procedure and shortening the terms of business registration and closing; introduction of control over the prevention of double taxation, currency exchange, admission to bank lending; providing regions with the necessary set of tools to increase investment attractiveness; decentralization of state regulation by attracting foreign investments into the economy of Ukraine. Key words: investment, foreign investment, direct foreign investment, investment infrastructure, investment climate, investment policy, state regulation.

Investor-State dispute settlement (ISDS) cases and India: affronting regulatory autonomy or indicting capricious state behaviour?

PurposeThe dominant narrative in the investor-State dispute settlement (ISDS) system is that it enables powerful corporations to encroach upon the regulatory power of developing countries aimed at pursuing compelling public interest objectives. The example of Phillip Morris, the tobacco giant, suing Uruguay’s public health measures is cited as the most significant example to prove this thesis. The other side of the story that States abuse their public power to undermine the protected rights of foreign investors does not get much attention.Design/methodology/approachThis paper reviews all the ISDS cases that India has lost to ascertain the reason why these claims were brought against India in the first place. The approach of the paper is to study these ISDS cases to find out whether these cases arose due to abuse of the State’s public power or affronted India’s regulatory autonomy.FindingsAgainst this global context, this paper studies the ISDS claims brought against India, one of the highest respondent-State in ISDS, to show that they arose due to India’s capricious behaviour. Analysis of these cases reveals that India acted in bad faith and abused its public power by either amending laws retroactively or by scrapping licences without following due process or going back on specific and written assurances that induced investors to invest. In none of these cases, the foreign investors challenged India’s regulatory measures aimed at advancing the genuine public interest. The absence of a “Phillip Morris moment” in India’s ISDS story is a stark reminder that one should give due weight to the equally compelling narrative that ISDS claims are also a result of abuse of public power by States.Originality/valueThe originality value of this paper arises from the fact that this is the first comprehensive study of ISDS cases brought against India and provides full documentation within the larger global context of rising ISDS cases. The paper contributes to the debate on international investment law by showing that in the case of India most of the ISDS cases brought were due to India abusing its public power and was not an affront on India’s regulatory autonomy.

Foreign Investment in Ukraine: Types and Forms

An important condition for the transition to a market economy is the intensification of the investment process. Among other factors, attracting foreign investment is crucial. For their effective use, an appropriate regulatory framework for regulating the legal basis for their implementation is required. It is necessary to determine the range and legal status of foreign investors, types and forms of foreign investment, legal means of protection of the rights of foreign investors. At the same time, the mechanism of regulation and protection of foreign investments is influenced by the legal regime of investment, which is established by the national legislation of Ukraine. The article is devoted to the classification of types of foreign investment. Money, goods and corporate rights, intellectual property, rights in them and securities rights, requirements for the exploitation of natural resources as a form of foreign investment are considered. The legal regime of the listed types of foreign investments are analyzed in detail. The evolution of legislation in the field of foreign investment regulation is investigated. Knowledge on foreign investment, is a legal regime as comprehended. The directions of improvement of the mechanism of attraction of foreign investments by established privileges in taxation of profits of foreign investors, legal support of the investment process is highlighted. Prospects of foreign direction and sphere of investment state policy of Ukraine are analyzed.

ХОРИЖИЙ ИНВЕСТИЦИЯЛАРНИ ЖАЛБ ЭТИШДА ҲУҚУҚИЙ ВА ИНСТИТУЦИОНАЛ АСОСЛАРНИНГ АҲАМИЯТИ

This article describes the essence of foreign investment, the introduction of a comprehensive system of legal guarantees and benefits for foreign investors. The issues of strengthening the protection of the legitimate interests of investors in attracting foreign investment are also discussed.Keywords:investment project, investment commitment, investment policy, foreign direct investment, foreign investor rights, investment agreement, legal regime, investment visa

Application of the Salini test in determining investments in the practice of the International Center for Settlement of Investment Disputes

Determination of the existence of subject-matter jurisdiction is of practical importance for the entire dispute settlement process by the International Center for Settlement of Investment Disputes (ICSID), which was created for protection of the rights of foreign investors. The subject-matter jurisdiction of ICSID is conditioned by existence of an “investment”. Determination of existence of an investment in each particular dispute is attributed to the exclusive competence of the arbitral tribunal itself, since the concept of “investment” is not disclosed in the text of the Washington Convention. The authors assess the key features of the activity that is recognized as investment, used by the arbitrators conducting qualification of one or another transaction to establish whether or not they fall under requirements of the Article 25 of the Washington Convention. Special attention is turned to the methodology and practice of application of the aforementioned criteria. It is noted that in each criteria, the arbitrators determine their own structure. Detailed analysis is carried out on the issues of subject-matter jurisdiction in the decisions of ICSID , beginning with the Fedex case, in which the need to use objective criteria in determination of ICSID jurisdiction without their interpretation is pointed for the first time; and Salini case, in which the arbitrators disclosed the content of these criteria, as well as subsequent decisions that illustrated different approaches of the arbitrators towards interpreting the Salini test. The conclusion is made that despite the fact that the criteria used in modern arbitration practice developed in the Salini case do not possess regulatory characteristics, their presence allows making objective distinction between the investments protected on the level of international agreements and regular commercial transactions. The Salini test provides potential investors with the opportunity to assess risks prior to starting investment activity on the territory of a foreign country, as well as protect the parties to the investment relations from abuse.

Investor-State Dispute Settlement (ISDS) Cases and India: Affronting Regulatory Autonomy or Indicting Capricious State Behaviour?

The dominant narrative in the investor-State dispute settlement (ISDS) system is that it enables powerful corporations to encroach upon the regulatory power of developing countries aimed at pursuing compelling public interest objectives. The example of Phillip Morris, the tobacco giant, suing Uruguay’s public health measures is cited as the most significant example to prove this thesis. The other side of the story that States abuse their public power to undermine the protected rights of foreign investors does not get much attention. Against this global context, this paper studies the ISDS claims brought against India, one of the highest respondent-State in ISDS, to show that they arose due to India’s capricious behaviour. Analysis of these cases reveals that India acted in bad faith and abused its public power by either amending laws retroactively, or by scrapping licenses without following due process or going back on specific and written assurances that induced investors to invest. In none of these cases, the foreign investors challenged India’s regulatory measures aimed at advancing the genuine public interest. The absence of a ‘Phillip Morris moment’ in India’s ISDS story is a stark reminder that one should give due weight to the equally compelling narrative that ISDS claims are also a result of abuse of public power by States.

Features of the use of foreign investments in the region

Ensuring the independence of the country in the liberalization and modernization of the economy, the development of all branches of the national economy and the increase in production efficiency is one of the priority tasks. To date, the provision of political and macroeconomic stability, the guarantee of the protection of the rights offoreign investors and the creation of a system of broad preferences are one of the priorities of the country's investment policy. It is worth noting that when placing joint ventures with the participation offoreign investments in the region, it is important to take into account the natural resources and economic geography of the region, the way of life of the population, its qualifications, mentality.

Calvo Is Back! Changing Sovereignty and Evolutionary Investment Law in a Leaving and Return of the State Paradigm

Although the key purpose of international investment law is to promote foreign investor protection by offering both substantive and procedural standards, the international investment governance regime needs to strike a balance between foreign investor rights protection and the host state’s right to regulate. The changing balance of this dichotomy shapes a leaving-and-return-of-the-state paradigm which explains and rationalizes an evolutionary development of both substantive and procedural norms and the changing status of sovereignty in international investment law. The “leaving” or “return” of the state paradigm informs us of the role of the state in the context of international investment law. This article makes a normative case for reframing investment and national security within what we call the investment rule of law. Both push for and pull from a liberalization movement are in an attempt to reshape this investment rule of law surrounding the concept of sovereignty, the core of international law.