Investment Obligations Research Articles

Контракт со встречными инвестиционными обязательствами

The article considers a contract with counter investment obligations (offset contract) as a means of implementing state and municipal needs and a mechanism that allows attracting investments to the regions. The concept and features of a contract with counter investment obligations, enshrined in the legislation on the contract system in the field of procurement of goods, works, services for state and municipal needs, are analyzed, the content of a contract with counter investment obligations (offset contract) is analyzed.

Municipalities at the crossroads: Deciphering the nexus between municipal insolvencies and international investment mandates

AbstractNavigating the convergence of domestic governance and international investment law presents multifaceted challenges in an ever‐globalizing world. The recent bankruptcy of the Birmingham City Council in September 2023, burdened by substantial debt from equal pay claims, serves as a poignant example, illustrating the potential widespread effects of local financial crises on international investment protections and obligations. The discourse explores the complexities arising from municipal insolvencies and the implications of such local fiscal policies on international investment obligations. The lens of international arbitral tribunals sheds light on the dilemmas faced when local realities vie with global responsibilities, especially concerning investor protections and Bilateral Investment Treaties. Decentralized states add another layer of intricacy, balancing regional policies with overarching international commitments. As the landscape of international investment law transforms, both state entities and investors must understand and adapt to the evolving interplay. The synthesis of these two realms is crucial in today's globalized era. Through proactive policy‐making, stakeholder dialogues, and a keen understanding of both local and global dynamics, a harmonious fusion of domestic objectives and international obligations can be achieved.

Corruption and foreign investments: Empirical lessons from treaties and arbitration cases

Abstract As legally binding instruments for the protection of cross-border investments, international investment agreements (IIAs) increasingly include anti-corruption provisions. This article empirically analyzes international investment agreements and the practice of investor–state tribunals related to corruption in foreign investments. It introduces a typology of treaty provisions and discusses their limited practical effectiveness and perverse incentives they create. The article also addresses the broader question of how to deal with corruption-related obligations of investors and states in the context of public international law. It presents and analyzes new empirical data showing that parties to investor–state disputes increasingly allege corruption, and states are responsible for most of such allegations. However, in most cases, tribunals either ignore such allegations or decide that they have not been proven. In the small number of cases where tribunals found allegations proven, they declined jurisdiction or declared the investor’s claim inadmissible. The article makes proposals on how international investment law can become more effective in tackling the supply and demand side of corruption and discusses the relevant obligations of investment tribunals.

УПРАВЛЕНЧЕСКИЙ УЧЕТ: ИНВЕСТИЦИИ И ОПРЕДЕЛЕНИЕ ФАКТОРА КОНКУРЕНТОСПОСОБНОСТИ И КОНКУРЕНТНЫХ ПРЕИМУЩЕСТВ

This article discusses the main directions of management accounting research, taking into account the determination of the competitiveness factor and competitive advantages of an economic entity. The purpose of management accounting is to study information taking into account investment obligations, determine the competitiveness factor, and competitive advantages. The work proposes a classification (grouping) of factors influencing business. It is in the context of such factors that monitoring activities and management accounting studies should be carried out to determine competitiveness and competitive advantages. It is concluded that all business factors studied by the management accounting system are interdependent and interconnected. By studying, analyzing and controlling them in the management accounting system, a business gets the opportunity to control and improve its level of competitiveness.

РОЛЬ ОФСЕТНЫХ КОНТРАКТОВ В РАЗВИТИИ МЕХАНИЗМОВ ГОСУДАРСТВЕННО-ЧАСТНОГО ПАРТНЕРСТВА

An offset contract implies a government contract that assumes the existence of counter investment obligations, both on the part of the investor and on the part of the state. The investor assumes responsibility for the creation or modernization of production on the territory of the Russian Federation, and the state, in turn, creates attractive conditions for doing business. From the meaning and content of the offset contract, it can be considered as a manifestation of the mechanism of public-private partnership, which finds its expression as a result of the interaction of the subject of the Russian Federation and the supplier-investor. Offset contracts represent a promising and beneficial mechanism for both sides of interaction, which allows us to focus on long-term cooperation, which entails the creation of new production facilities on the territory of the constituent entities of the Russian Federation, as a result, jobs, and an increase in tax revenues. The urgency of a detailed study of the offset contract mechanism is conditioned by the possibility of implementing the plans of the Government of the Russian Federation to localize the production of technically complex products and increase the pace of import substitution under international sanctions. The study presents the advantages of an offset contract in comparison with other investment attraction tools and options for its adaptation in the Kursk region.

Fairness as Balance: Investor Obligations and Investment Treaty Reform

The normative asymmetry between the rights and obligations of investors and host states under investment treaties has been a key reason for the treaties’ common characterization as “unbalanced”. While initially a description of a justified treaty design, imbalance has since become a central component of the legitimacy challenges to the investment treaty regime: a normative demand of the treaties’ realignment. Identifying the imbalance critiques of investment treaties as fairness-based critiques concerning the distributive implications of investment treaties, the article considers to what extent including provisions on investor conduct in investment treaties may address the concerns about potential unfairness in the allocation of rights and obligations under these treaties. In particular, the article argues that understanding the imbalance critiques as concerns of distributive justice enables the assessment ofinvestment treaty design innovations and the alternative ways in which these instruments could be structured to produce different distributive outcomes.

Investor Obligations: Transformative and Regressive Impacts of the Business and Human Rights Framework

Abstract The business and human rights (BHR) framework has regularly been considered the superior legal regime of corporate accountability for business-related human rights abuses, which must be both protected from and incorporated into investment treaties. However, investment treaties have surpassed the BHR framework in an important respect: certain investment treaties impose strict international legal obligations, including human rights-related obligations, directly on investors, thereby going beyond the normatively ambiguous corporate responsibility to respect. Investment treaty reform initiatives, including those seeking to align investment treaties with the BHR agenda, should, therefore, take care to avoid inadvertently undoing this advance towards investors’ legal accountability.

EXPLORING THE DYNAMICS BETWEEN MUTUAL FUND AND INVESTORS BEHAVIOUR

The basic purpose is to know about the Mutual Fund Industry and to know the behavior of the Indian Investors regarding different investment tools. This project will provide me t he better platform to understand the History, Growth and various other aspects of Mutual Fund. It will also help me to understand the behavior of Indian investor regarding different inve stment tools. SEBI is the apex regulatory of capital markets. SEBI has enacted the SEBI (mutual fund) Regulations, 1996, which provides the scope of the regulation of the mutual fund in India. All Mutual funds are required to be mandatory registered with SEBI. The structure and formation of mutual funds, appointment of key functionaries, operation of the mutual funds, accounting and disclosure norms, rights and obligations of functionaries and investors, investment restrictions ,compliance and penalties are all defined under the SEBI regulations. Mutual funds have to send half yearly compliance reports to SEBI, and provide all information about their operations

IMPROVING THE MECHANISMS FOR ENSURING THE RIGHTS AND OBLIGATIONS OF INVESTORS IN PUBLIC INTERNATIONAL LAW

International investment law plays a crucial role in facilitating cross-border investment flows and promoting economic development. However, the current mechanisms for ensuring the rights and obligations of investors in public international law face a number of challenges, including fragmentation of the legal landscape, limitations of investor-state dispute settlement (ISDS) mechanisms, and the tension between protecting investor rights and safeguarding states' regulatory space.This article proposes a series of reforms to improve the mechanisms for ensuring the rights and obligations of investors in public international law. These reforms include harmonization and consolidation of investment treaties, modernization of ISDS mechanisms, clarification of investor obligations, and promotion of sustainable investment practices.

Роль офсетных контрактов в развитии механизмов государственно-частного партнерства

An offset contract implies a government contract that assumes the existence of counter investment obligations, both on the part of the investor and on the part of the state. The investor assumes responsibility for the creation or modernization of production on the territory of the Russian Federation, and the state, in turn, creates attractive conditions for doing business. From the meaning and content of the offset contract, it can be considered as a manifestation of the mechanism of public-private partnership, which finds its expression as a result of the interaction of the subject of the Russian Federation and the supplier-investor. Offset contracts represent a promising and beneficial mechanism for both sides of interaction, which allows us to focus on long-term cooperation, which entails the creation of new production facilities on the territory of the constituent entities of the Russian Federation, as a result, jobs, and an increase in tax revenues. The urgency of a detailed study of the offset contract mechanism is conditioned by the possibility of implementing the plans of the Government of the Russian Federation to localize the production of technically complex products and increase the pace of import substitution under international sanctions. The study presents the advantages of an offset contract in comparison with other investment attraction tools and options for its adaptation in the Kursk region.
 The purpose to study the role of offset contracts in the development of public-private partnership mechanisms and summarize ideas about the future prospects of its implementation in the mechanism of attracting investment in the regions.
 Objectives: to form an idea of the concept and essence of an offset contract, to identify promising areas for the development of offset contracts, to form proposals for improving the stages of concluding an offset contract, to substantiate proposals for the further development and adaptation of this tool in the mechanism of attracting investment to the region.
 Methodology. In the process of studying the subject under consideration, such methods as analysis, synthesis, generalization, logical, as well as graphical methods of information processing were used. 
 Results. The offset contract should be considered as a mechanism for the implementation of public-private partnership, since it meets the set of features inherent in it (attracting an investor on the terms of long-term interaction, the state acts as one of the parties, there is a possibility of exceeding the limits of budget allocations). The obligations of the parties are reciprocal and imply continuous interaction throughout the implementation period. The offset contract has significant advantages for both private and public parties, however, in fact offset contracts have practically not been distributed on the territory of the subjects of the Russian Federation, which is due to the similarity of offset contracts with other mechanisms of public-private partnership.
 Conclusions. It is proposed to revise the classic procedure for concluding an offset contract, consisting of the sequential execution of stages and expand them to include assistance in site selection and assistance in the implementation of the contract with the help of tax incentives, subsidies and infrastructure development. On the example of the Kursk region, the investment component was analyzed, creating the "soil", the foundation for the development of offset contracts. We have formed proposals to stimulate the conclusion of investment contracts in the region by differentiating tax benefits for residents of the special economic zone "Third Pole" who have concluded an offset contract in the Kursk region.

Reviving securitisation in the EU: A critical analysis of the reporting requirements

The EU Securitisation Regulation (SECR) came into force in 2018, applying to securitisations issued after 1st January, 2019 and to eligible legacy securitisations. This is a cornerstone of the Capitals Market Union (CMU), which, together with the amendment of the Capital Requirements Regulation (CRR), aims at reviving the European securitisation market. By introducing a robust and harmonised framework, the regulator intends to resolve the following conundrum: how to relaunch the securitisation market, which is essential for financing the economy, while mitigating its vulnerabilities and the stigma associated with it? More specifically, the CRR amendment contains the calibration of capital requirements in accordance with the updated hierarchy of methods while the SECR defines the criteria for securitisations to qualify as ‘simple, transparent and standardised’ (STS). The SECR also sets common rules for the due diligence obligations of institutional investors, regardless of the sector to which they belong. An intrinsic (although not specific) problem with securitisation is the question of asymmetry of information, since investors have access to less information about the loans backing the tranches than lenders involved in their origination. Article 7 of the SECR addresses this issue by defining high standards to transparency requirements using a very granular reporting method. While market participants recognise the necessity of fostering transparency and due diligence to increase confidence in the market, the current reporting framework, because of the burden it represents, may discourage potential investors and originators. This paper provides a thorough overview of the reporting obligations set on credit institutions in the context of securitisation. It demonstrates how the lack of integration and proportionality combined with technical limitations perpetuates regulatory fragmentation and associated high costs. It proposes potential solutions to integrate requirements from various sources into a unified model and concludes with the necessity to improve the governance of reporting and data requirements at a European level.

Vulnerability Theory as a Paradigm Shift in International Investment Law: Reimagining the Role of the State

Abstract This article argues for a fundamental raison d’être reconceptualization of international investment law (IIL) through Martha Fineman’s ‘vulnerability theory’. The theory helps identify the structural sources of IIL’s shortcomings, whilst philosophically challenging the one-sided view that foreign investors are entitled to protections, but are free from obligations vis-à-vis the communities affected by their undertakings. Emphasizing the productive power of the state to take positive action that acknowledges ordinary citizens’ embeddedness within, and dependence upon, surrounding structures, the vulnerability theory challenges the hegemonic perception of the state as a source of danger – a view which has hitherto undermined both the potency and the enforceability of investor obligations. Used as a heuristic device in studying both IIL’s existing structures and the potential avenues for reimagining it, Fineman’s theory not only shines a novel light on the foundational premises of IIL, but also grants theoretical traction to existing ideas about improving the system.

Challenges at the intersection between investment provisions in regional trade agreements and implementation of the GloBE Rules under Pillar Two

A number of regional trade agreements (RTAs) include investment protection provisions that may limit a country’s ability to change tax measures. This limitation could raise concerns for States as regards the recently agreed global minimum tax under the Global Anti-Base Erosion (GloBE) Rules, as its implementation could amount to a breach of investment obligations. Therefore, this paper analyses how the GloBE Rules and their impact on investment incentives interact with investment provisions in RTAs, also considering the impact of the minimum tax on regional integration efforts and the potential for a regional approach to its implementation.

Bridging multinational corporations' investment‐climate gap: Prospects for the direct claims approach

AbstractMultinational corporations (MNCs) have enjoyed considerable investment rights and gained massive benefits under international investment law; at the same time, they have also significantly contributed to the climate crisis. Yet, they do not bear corresponding climate change obligations. A huge gap between MNC investment rights and climate change obligations—the MNC investment‐climate gap—persists because of MNCs' global operations, the limited reach of domestic legal mechanisms in regulating MNCs' obligations, and the ineffectiveness of international regimes at addressing MNCs' obligations. This gap is mainly due to the asymmetrical structure of the investor‐State dispute settlement regime. To correct this asymmetry, this article explores the possibility of direct claims by States against MNCs under recent investment treaties. In particular, it analyses this possibility from three angles: investor obligations, arbitral tribunals' jurisdiction and States' initiation of claims. To facilitate such claims, one must reconsider the jurisprudence of international investment law.

Corporate human rights obligations of investors in recent investment agreements: The progressive hardening process of CSR clauses

Since the earlier indirect Corporate Social Responsibility (CSR) provisions failed to hold investors responsible for human rights abuses, the recent hardening process of direct CSR clauses has resulted in incorporating CSR clauses under sections or chapters entitled “investors obligations” and tying CSR obligations to binding human rights and environmental prohibitions, as well as to human rights obligations established by the host state's legislation. This paper provides a non-exhaustive analysis of recent developments in treaty practice based on research primarily sourced from investment agreements concluded between 2012 and 2021, doctrinal input, and normative analysis. As shown in this paper the hardening process has not yet been completed, and reformations are necessary. Specifically, new investment agreements should enshrine investor human rights obligations as legally binding obligations, consider violations of these CSR obligations as part of investment disputes and provide direct remedies to victims. This study contributes to the literature on the international responsibility of TNCs with regard to human rights by examining the process of hardening up the CSR obligations within investment agreements as an approach that could lead to effective human rights protection.

국제투자중재절차에서 반대청구에 관한 연구

Purpose: This study analyzes counterclaims arising in the course of international arbitration proceedings, especially investor-state arbitration.
 Research design, data, and methodology: This paper mainly relies on arbitration awards based on investment treaties to reveal how counterclaims have been dealt with in the investment arbitration context.
 Results: Although counterclaims are well known in international arbitral proceedings, they raise special issues when it comes to investment arbitration, especially when they are based on treaties that recognize only rights, and not obligations, of private parties.
 Conclusions: A counterclaim may be a way of rebalancing investment law by allowing states to file claims against investors. However, certain conditions that must be fulfilled are not easily combined with the special features of investment arbitration. Future investment treaties should provide explicit provisions for the obligations of investors based on which contracting states may bring counterclaims. This could be a way of addressing the drawbacks that have been recently formulated against investment arbitration.

Reclaiming Sovereignty over Natural Wealth and Resources in Tanzania: Legal and Regulatory Implications on Investments

Abstract The enactment of the legislation on review of unconscionable contractual terms in various investment agreements and the assertion of permanent sovereignty over natural resources marked a significant policy and regulatory shift in Tanzania. The new legislation reopened an opportunity for parliamentary scrutiny over various existing and future investment contracts which, in the opinion of the government, contain unfair terms. The new laws have also sought to introduce a new landscape for investment dispute settlement. This article examines the legal implications of the new laws on the regulation of investments as informed by both: the national investment code and the various international investment obligations assumed by Tanzania. It offers an exploration and critique of the misguided assumption that galvanized the new enactments based on the contemporary narratives and principles of the investment law. It concludes by proposing that the new legislation should be reviewed in line with the constitutional dictates and principles of international investment law.

Investment Obligations and Levies on VOD Media Service Providers and Cultural Policies of Member States

Digital video streaming platforms that provide on-demand services are subject to financial contributions stemming from media policy regulations in different countries, including the majority of EU Member States. In particular, such financial obligations include direct investments in European media works or indirect levies for national film funds. In 2018, the European Union revised the Audiovisual Media Services Directive, extending the scope of the financial obligations to cover not only the domestic media service providers established in the country that requires financial contribution but also foreign media service providers targeting the audience in this state. The provision was transposed (or is considered to be transposed) in the domestic legislation of at least 14 EU Member States. Yet, the technical design of the respective domestic provisions significantly varies, which can lead to distortive effects on investments and trade in the European Union, including due to the risk of double imposition of financial obligations by several Member States on the same income. In this article, the authors analyse tax-related issues regarding financial obligations, namely how certain well-established cross-border tax mechanisms can enhance the legislative AVMSD framework to achieve a better balance between the societal policy goal of promoting European culture, on one hand, and respecting economic rights in the implementation of the financial obligations for audiovisual media service providers under article 13(2) of the AVMSD on the other. From an international tax perspective, the authors analyse whether financial obligations, in particular the levy for national film funds, can be regarded as an earmarked tax on business income, its compatibility with double tax treaties, as well as whether it is covered by the commitment of the OECD Inclusive Framework Members to remove the unilateral measures similar to digital services taxes (DSTs) for the purposes of OECD Pillar One.

Investor Human Rights and Environmental Obligations: The Need to Redesign Corporate Social Responsibility Clauses

Abstract The article explores the utility of corporate social responsibility (CSR) clauses in international investment agreements to achieve responsible investor conduct on human rights and environmental protection. It provides an empirical overview of the content of such CSR clauses and offers a critical analysis on how and why these clauses, regardless of their formulation, have not yet led to effective investor accountability. Building on the weaknesses identified, it proposes to design new clauses on ‘investor human rights and environmental obligations’ that incorporate established international standards of responsible conduct, such as the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises and the United Nations Guiding Principles on Business and Human Rights; directly address investors as duty-bearers; explicitly recognise affected communities as beneficiaries of the investor obligations; and clarify the central question of access to remedy by providing for clear mechanisms of foreign investor liability in both the domestic courts of the home State and of the host State, separated from any counterclaim a host State may raise in an arbitration proceeding.

Perlindungan Hukum Investor Atas Fenomena Gagal Serah Efek: Dari Perspektif PT KPEI

This study aims to find out the form of legal protection for Indonesian investors in the practice of Repurchase Agreement (Repo) if there is a failure in filing for securities from PT KPEI's point of view. The Repo system with collateral in the form of securities opens up new opportunities for investors to invest safely and profitably. However, this can lead to new problems such as legal exemption for events that fail to deliver securities. This research is a qualitative descriptive study with data analysis methods based on literature review originating from previous research.
 According to various sources studied, if there is a failure in the submission of shares, the Repo system has provided legal protection through procedures to deal with failure events that are adjusted to the rights and obligations of investors in the form of written compensation. Besides that, obtaining information regarding Tri-party Repo can also provide investors with more legal protection. PT KPEI also provides another alternative to finalize the agreement in the form of a securities lending and borrowing facility to create a fair, orderly and efficient capital market.