Foreign Investment Protection Research Articles

The Fundamental Rights of Making an Investment by a Foreign Legal Person and the Investment Freedom

身處國際貿易交流、人與商品及服務的移動成為常態的時代，各國莫不致力於吸引外資投資為其經濟政策上的目標，因此致力於投資環境的完善遂成為各國經濟行政法的立法重點。對於外國人投資保障越是完善，自然就更能夠堅實外資投資法律面向上的基礎。由於國內似少見從基本權保障探討外國人投資的文獻，本文擬先探究外國法人作為基本權主體之爭議後，再就其經濟活動之自由以及公法上權利予以探討，以求補上外國人投資保障之法治基礎。<br />In an era where the international trade and the mobility of people and goods and services have become the norm, every country is committed to attracting foreign investment as one of its primary goals of economic policy. As a result, the focus of the economic administrative law in every country is devoted to the improvement of the business environment for foreign investment. When the laws or regulations provide better protection for foreign investors, the country will strengthen its legal basis for the protection of foreign investments. Since there are very few current articles analyzing the relationship between the protection of foreign investment and the protection of fundamental rights, this article firstly aims at reviewing the issues of whether foreign entities may be the subjects of the fundamental rights and then exploring the freedom of investing in economic business by foreign entities and their public rights in public law. It is hoped that this article will supplement some legal basis for the protection of foreign investment.<br />

AZƏRBAYCANDA QEYRİ-NEFT SEKTORUNA EDİLƏN XARİCİ İNVESTİSİYALARIN TƏŞVİQ EDİLMƏSİ İSTİQAMƏTLƏRİ

The purpose of attracting foreign investment in the non-oil sector is to reduce and gradually eliminate dependence on oil revenues. However, foreign investment does not go to production, but to non-profit areas such as construction and warehousing. Azerbaijan offers tax rates and customs duties to foreign investors. However, gaps in the legislative and legal system do not escape the attention of foreign investors. Foreign investors make investment decisions after assessing the economic and political situation in the country. Reforms in the economy and the legal system in recent years will be the basis for increasing foreign investment in the non-oil sector. One of the government's goals in the Strategic Roadmap for National Economic Development until 2025 was to "increase the share of foreign investment in the non-oil sector in GDP to 4 percent." Investments by Turkish companies in the non-oil sector of our country have long outpaced investments in other countries, except for a few years. In particular, investments in Azerbaijan's non-oil sector came from Russia, the United States, the United Kingdom, the United Arab Emirates, France and Germany. However, the volume of investments from Russian and Swiss companies has recently increased. Countries with developed infrastructure attract investors faster. Investors consider such countries as countries with a favorable investment climate. Therefore, it is necessary to form a developed infrastructure in our country and eliminate the shortcomings in the industry. Many factories are unable to operate at full capacity and bring the product to the final product stage due to lack of raw materials, auxiliary equipment and materials. Key words: foreign direct investment, non-oil sector, investment environment, protection of foreign investments, investment policy

The Legal Certainty and Protection of Foreign Investment Againsts Investment Practices in Indonesia

Foreign investment or well known as "Foreign Capital Investment" is one of the state's efforts to accelerate the pace of the Indonesian economy. So, it is not surprising that the Indonesian Government continues to carry out juridical reforms related to foreign investment. This renewal cannot be separated from the objective of providing certainty and guaranteeing legal protection for foreign investors, so that they can continue to carry out investment in the territory of the Republic of Indonesia. But the question that arises by the author, are the Indonesian laws and regulations sufficient to provide legal certainty in various aspects of investment, from licensing to dispute resolution? In response to this, this paper aims to further examine the legal certainty and protection of foreign investors in carrying out Foreign Direct Investment. The legal research method used is normative legal research through a statutory approach. In addition, this paper uses secondary legal data sources.

Legal challenges to the protection of foreign investment in light of states' international commitment to control the outbreak of infectious diseases; A case study on Covid-19

بیماری کووید-19 اقتصاد جهانی را با چالش‌هایی، از جمله در حوزه سرمایه‌گذاری، مواجه ساخته است. دولت‌‌ها به موجب حقوق بین‌الملل موظف به حفظ سلامت و امنیت شهروندان هستند، اما وضع تدابیر حمایت از سلامت عمومی در کنترل بیماری‌‌ها منجر به ورود خسارات متعدد به فعالیت‌های اقتصادی سرمایه‌گذاران می‌گردد. عمده دولت‌‌ها در دوران امر بین حمایت از سلامت عمومی و سرمایه‌گذاری خارجی، اولی را انتخاب کرده و تدابیر ضروری و فوری اتخاذ نموده‌اند. این مقاله با ماهیت کیفی و با رویکرد توصیفی ‌ـ‌تحلیلی به دنبال پاسخ به این سؤال بوده که در جریان همه‌گیری، و به‌تبع آن، وضع قوانین بهداشتی و اعلام وضعیت‌ اضطراری، تکلیف سرمایه‌گذاری‌های خارجی که متحمل خسارت شده‌اند چیست و چگونه تدابیر دولت‌‌ها قابلیت توجیه دارد؟ پس از ارائه مقدمه‌ای از این بحران اقتصادی، این موضوع در سه بخش 1) تعهدات بین‌المللی در کنترل بیماری‌های واگیر؛ 2) ابعاد حقوقی سرمایه‌گذاری خارجی؛ و 3) چالش‌های حل‌و‌فصل اختلافات مورد بررسی و تحلیل قرار گرفته است. این نتیجه حاصل شد که دولت‌‌ها موظف به کنترل و مقابله با بیماری‌های واگیر بوده و از این‌رو مطابق مقررات بین‌المللی سلامت، اعلام وضعیت اضطراری و دیگر محدودیت‌‌ها نه‌‌تنها توجیه‌پذیر، بلکه تعهدی بین‌المللی و قابل رسیدگی است. از طرفی سیل دعاوی سرمایه‌گذاری علیه دولت‌های میزبان از تهدیدات جدی قلمداد می‌گردد. فارغ از عدم قطعیت فعلی، که ناشی از فقدان احکام صادر شده از سوی مراجع بین‌المللی در این خصوص می‌باشد، مجموعه موافقت‌نامه‌های سرمایه‌گذاری، حقوق بین‌الملل عرفی و قواعد مسئولیت بین‌المللی دولت‌‌ها از جمله مؤلفه‌‌هایی هستند که مبنای تصمیمات محاکم در جریان این دعاوی خواهد بود.

Dobrovoljno ograničenje slobode transfera sredstava u poslovanju privrednih subjekata u uslovima pandemije

Corona virus pandemic posed great challenges in all spheres of life. Quite naturally, law had to face those challenges, adapt to the "new normal" and bring viable solutions to many problems created by the pandemic. In this paper the authors focus on one specific manifestation of the influence of pandemic on business law - voluntary abstention of business entities from enjoying free transfer of funds. In the Republic of Serbia, this abstention came to effect with entry into force of several laws and bylaws enacted with the aim of neutralizing the negative consequences of the pandemic on economy and business. The voluntary abstention is analysed from the standpoint of company law and the rules on protection of foreign direct investment. After evaluating the prohibition on profit distribution to shareholders, the authors conclude that the enactment of atypical, non-standard measures is necessary during the pandemic and that these measures need to be adopted promptly enough to timely address the problems that they are supposed to solve, but during their enactment one must bear in mind that the short-term benefits should not be off set by long-term damage.

ИНВЕСТИЦИОННАЯ ПОЛИТИКА ПОЛЬШИ В КОНТЕКСТЕ ТОРГОВО-ЭКОНОМИЧЕСКОГО СОТРУДНИЧЕСТВА С РОССИЙСКОЙ ФЕДЕРАЦИЕЙ

The article reveals the evolution of Poland’s investment policy and the peculiarities of the formation of the country’s legal system for the protection of foreign investments. The article describes the current stage of development of the Polish economy, reveals the role of foreign investment in the modernization of the national economy. The article discusses the controversial issue of the role of the European Union subsidies in the transformation of the Polish economy. The issues of trade, economic and investment cooperation between Russia and Poland are analyzed separately and it is concluded that the anti-Russian foreign policy of Poland hinders the development of the trade, economic and investment cooperation between the two countries.

Legal Protection of Foreign Investment (FI) in Zanzibar: Lesson for China Investments

Legal Protection of Foreign Investment (FI) in Zanzibar: Lesson for China Investments

ІНВЕСТИЦІЙНІ ПОСТУПИ ЯК ОСНОВА СОЦІАЛЬНО-ЕКОНОМІЧНИХ ПЕРЕТВОРЕНЬ В АГРАРНІЙ ГАЛУЗІ

The article examines the relevance of investment as an external source of financing for agricultural producers. The views of scientists on the problems of investment support of the agricultural sector of the economy, their significant contribution to the creation and development of theory and practice of investment progress of small and medium-sized agribusinesses. It is noted that financial security in the form of attracting and developing investments is one of the most important factors influencing the efficiency of agricultural enterprises. Using the analysis of investment support of the agricultural sector, their role as an important source of financial support for the functioning of agricultural enterprises is revealed. An analysis of the investment climate of Vinnytsia region and based on which it is proved that investment resources in combination with a well-formed investment development plan can create economic development in medium-sized enterprises in the agricultural sector and the economy. Foreign investment plays an important role in assessing the investment climate in Ukraine's agro-industrial complex. It was outlined that rapid attraction and optimal use of investments is the fastest way to raise the economic development of the state to a new level, including investment of effective instruments provides innovative development of agricultural enterprises. Emphasis is placed on the problems that hinder the development of the agricultural sector, the state of financial security of agricultural producers, and hence the regulation of investments of agricultural enterprises. It is proved that compliance with state guarantees for the protection of foreign investment will help ensure a favorable investment climate. Stable conditions for foreigners' investment activities, observance of their legal rights and interests, and full preservation of foreign investments are guaranteed. It is determined that the introduction of effective investment instruments and their further application will ensure the innovative development of agricultural enterprises.

ФОНДОВИЙ РИНОК УКРАЇНИ: ПЕРСПЕКТИВИ ДЛЯ ІНОЗЕМНОГО ІНВЕСТУВАННЯ

The current trends of the stock market of Ukraine are the main subject of analysis in the article. The author uses various research methods, such as the method of statistical data, the method of system analysis and the method of survey. An in-depth study of statistical data allowed to highlight the volume of exchange-traded securities contracts by trade organizers, using two contexts: by month and by trade organizers. In addition, the peculiarities of trading on the stock market according to the types of financial instruments were considered. The author has identified and investigated the problems of optimal functioning of the domestic stock market. Vectors of attraction of foreign investments into Ukrainian securities were considered, as well as possibilities of formation of attractive investment image of Ukraine, which were also evaluated. It has been proved that there is necessity of forming attractive investment image of Ukraine. However, practical steps in this direction are carried out rather slowly. The main reasons that negatively affect investors' willingness to invest are: large-scale corruption schemes and an inefficient judicial system; unclear, non-transparent and volatile legislation; a significant level of bureaucracy; and abuse of power by law enforcement agencies. Thus, the lack of state institutions and the government's inattention to investors' problems create uncertainty and weaken our position as a reliable business partner. To solve these problems, including problems of corporate governance in joint-stock companies, it is necessary, first of all, to protect the rights of investors. Ways to solve this problem include the following steps: strict compliance with the law for all market participants, regulatory requirements and standards of business ethics equally important for all professional stock market participants; settlement of conflicts of interest, in particular by separating powers at legislative levels; fair competition, including protection of foreign investors from price manipulation in the securities market and use of insider information.

The Protection of Foreign Investment in Times of Armed Conflict

The Protection of Foreign Investment in Times of Armed Conflict

Review of Some Aspects of Investment Arbitration under the International Centre for Settlement of Investment Disputes

An economic development of the states highly depends upon the flow of private international investment. Whilst the creation of suitable investment climate which would guarantee the fair and equitable treatment of foreign investment within the depoliticized and impartial dispute resolution system had been objective of the World Bank, the International Centre for Settlement of Investment Disputes was established under its auspices. The primary objective of the ICSID Convention has been viewed on facilitating and safeguarding of private international investment through the creation of a favorable investment climate. Arbitration under the ICSID, serves not only in favor of investors but also of host states. Whilst the favorable means are offered to the both parties for dispute resolution according to the major provisions of the Convention, the “execution of the awards”, represent the slight alteration in the disadvantageous position of the foreign investor. The aforementioned alteration as the time consuming process, fulfilled within the state bureaucracy is more sensibly approached by the foreign investors in developing countries, under which the political risk and demand for foreign investment protection is always one of the highest extent. However, by virtue of signing the Convention, the states not only accept the proposed dispute resolution mechanism, but also declare and desire to welcome the foreign investment. As states aforementioned attempts could be related to the creation of the Global Forum for delivering better Investment Climate, the demands of the World Bank in the sphere is one of the most significant importance.

Need for a balance between protection of foreign investment And protection of public health: Issues arising from the covid-19 pandemic

O Direito Internacional dos Investimentos e a Arbitragem de Investimen-tos, em particular, estão em fase de mudança e desafíos, que serão acelera-dos como resultado das controvérsias que surgirão no contexto da pandemia COVID-19. Nos últimos anos, tanto os tratados de investimento quanto a ju-risprudência arbitral sobre investimentos sofreram modificações de diversos tipos, a maioria delas no sentido de alcançar um maior equilíbrio entre apro-teção dos investimentos ea proteção dos poderes regulatórios dos Estados, de acordo com a teoria da proporcionalidade. Recentemente foram emitidas importantes sentenças arbitrais que tiveram como tema central a proteção da saúde pública. Os casos COVID-19 conduzirão ainda mais essas mudanças. Este artigo tem como objetivo fornecer elementos de análise que permitam aos investidores estrangeiros e aos Estados beneficiários saber o que pode ser esperado em matéria de arbitragem de investimentos e saúde pública, em tempos extraordinários de crise sanitária mundial.

ASSESSING AFRICAN REGIONAL INVESTMENT INSTRUMENTS AND INVESTOR–STATE DISPUTE SETTLEMENT

AbstractThis article examines the rejection of the International Investor–State dispute (ISDS) system across the African continent and its replacement with a range of domestic and regional alternatives. It assesses the advantages of the two principal options for African countries: retaining the current ISDS system, or using local courts and regional tribunals. To this end, the dispute resolution mechanisms proposed in the Pan-African Investment Code, the 2016 Southern African Development Community Finance and Investment Protocol, the SADC model BIT, the Common Market for Eastern and Southern Africa, Economic Community of West African States and East African Community investment agreements and domestic approaches are critically examined. The argument is then advanced that African countries should not abandon ISDS because replacing it with isolated domestic or regional mechanisms does not reduce any of the risks. In particular, for foreign investors, the risk associated with the adjudication of investment disputes in potentially biased, politically influenced domestic courts may prove too high. African host nations, in turn, risk sending out the wrong message concerning their commitment to the protection of foreign investments. Instead of veering off course, perhaps the time has come for African States to display the political will to remain within the ISDS system and contribute to its reform from within.

International investment law in support of the right to development?

AbstractThere is a long-standing claim and ambition in international investment law that treaties and customary law contribute to economic development in countries hosting investment. However, this claim remains controversial and has been hotly debated among academics. The article explores how international investment law, understood as international investment agreements (IIAs) and their associated dispute settlement mechanisms, can support the right to development. It does so by analysing how rules regarding protection and flow of foreign direct investment have and can contribute to realizing the right to development and help achieve sustainable development goals. It finds that IIAs have had limited effects for promotion of investment into or restricting the policy space for least developed and low-income countries. It argues that potential effects of IIAs cannot be properly understood without taking into account other means of protecting and promoting foreign direct investment, i.e., national investment legislation and contracts. So far, national investment legislation is likely to have had more significant impact on flows of foreign direct investment and policy space of host countries than IIAs. Reforms of IIAs to increase synergies with the right to development will, therefore, have to be based on knowledge about and assessments of the dynamics between IIAs, domestic investment legislation, and investment contracts.

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.

The Evolution of Bits: Toward Reconciling Foreign Investment Protection and Socio-Economic Human Rights

The Evolution of Bits: Toward Reconciling Foreign Investment Protection and Socio-Economic Human Rights

Editorial Comments: The Relevance of Foreign Investment Protection in International and EU Law

Editorial Comments: The Relevance of Foreign Investment Protection in International and EU Law

ІНОЗЕМНЕ ІНВЕСТУВАННЯ В ЕКОНОМІКУ УКРАЇНИ: МАСШТАБИ, СТРУКТУРА, ПЕРСПЕКТИВИ

The experience of many countries around the world shows the effectiveness of attracting foreign direct investment to the economy. The purpose of the paper is to study the processes of foreign direct investment in the economy of Ukraine, its amount, structure, and prospects for development, as well as to find ways to intensify investment inflows to the country. The article examines the investment attractiveness of Ukraine on the basis of the index of investment attractiveness, calculated by the European Business Association in 2009-2017 years. According to the European Business Association data it has been established that in recent years businesses in Ukraine have not noticed any new negative factors for investment activity, but many unfavorable factors from previous years remain the same (high interest rates on bank loans; high level of corruption; slow pace of reforms; lack of progress in judicial and land reforms, etc.). The dynamics of inflows and outflows of foreign direct investment in Ukraine in 2008-2018 years is analyzed. It is established that for the last six years the country has not reached a significant increase in foreign direct investment at the level of 2008. The structure of foreign direct investment in Ukraine by types of economic activity is studied. It is established that investors are ready to invest only in already developed areas of activity: wholesale and retail trade, repair of motor vehicles, and financial and insurance activities, which provide a sufficient level of profitability. A short-term forecast of the inflow of foreign investments to Ukraine with the help of econometric analysis is developed, a graphic model is built. It is provided that if the trend described by the model is observed in the future, the amount of foreign direct investment inflows will increase in 2020-2021 years. The main recommended measures for Ukrainian government for the improvement of the investment activity in the country are optimization of the tax system, improvement of the procedure for payment of customs duties and taxes, creation of a system of legal protection for foreign investors, etc.

DOES INVESTOR PROTECTION INCREASE FOREIGN DIRECT INVESTMENT? A META‐ANALYSIS

AbstractWe undertake a meta‐analysis of the effects of international investment agreements for the protection of foreign investors on foreign direct investment using 2107 estimates drawn from 74 studies. Our meta‐analysis finds robust evidence that effect of international investment agreements is so small as to be considered zero. However, our results do not rule out the possibility that the effect of these agreements is, in fact, positive and that current research methods are insufficiently powerful or precise to identify the underlying genuine effect. FDI from developed countries appears to be more responsive to the existence of investment protection, and there is evidence of publication–selection bias in favour of studies that find a positive effect for investor protection.

The intersection of public procurement law and policy, and international investment law

There is substantial scholarship on the limitations that international investment agreements (IIAs) place on States’ authority to regulate in the public interest. An area of fundamental importance that has not received scholarly attention in connection with IIAs is public procurement regulation. Given that public procurement is about the needs of States and their citizens, States would want to retain their authority within municipal public procurement laws to decide with whom to contract to meet those needs, and to pursue socioeconomic and industrial policies through procurement. However, most States are parties to IIAs, which impose obligations on them with respect to the protection of foreign investment. This article explores this seminal issue of whether IIAs stand to limit the authority of States in the implementation of procurement legislation and policies. Based on textual analysis and arbitral case study, it argues that treaty-based standards of investment protection can limit States’ authority on the implementation of methods of procurement (such as national competitive tendering or restricted tendering) and socioeconomic policies in procurement. A question that needs fuller engagement is the extent of conflict between specific IIAs and public procurement laws and policies, either regionally or globally, and how to reconcile conflicting obligations to promote foreign investment and sustainable development. This article provides the foundation for such future research.