International investment activities. International investment activity as a type of foreign economic activity. Need help studying a topic?
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Movement international investment carried out thanks to active work economic entities beyond the national borders of states.
International investment activities- this is the appearance economic activity economic entities to invest capital on the international market in investment objects to generate profit (income) and (or) achieve a social effect.
International investment activity rationalizes the distribution of material, financial, labor and intellectual resources in order to update the technological structure of production. International investment activities, both in business (direct or portfolio investment), and in loan ( investment loans and loans, gratuitous assistance) form is aimed at solving problems at various levels:
global (ecology, assistance to developing countries, etc.),
regional (implementation of large industrial facilities, joint development of natural resources, infrastructure development, etc.),
national (modernization of the economy, development of market infrastructure, implementation social programs etc.),
microeconomic (strengthening the company's competitiveness).
International investment activity takes place in three main forms: foreign direct investment, international portfolio investment and international credit investment.
The subjects of international investment activity are: states represented by governments; enterprises, including financial intermediaries; private individuals, both at the national and interstate levels. Moreover, each of these entities can act:
From the outside demand on foreign investment resources (recipient states, private borrowers, financial intermediaries). In this case they talk about attracting foreign investment ;
From the outside offers investment resources for investments in foreign markets(donor states, private investors, financial intermediaries). In this case, we are talking about foreign investments which are carried out by investors.
Investors are subjects of investment activity who make decisions on investing funds and implement them. It is necessary to distinguish the concept of investor from sub-investor. Subinvestors- these are legal and individuals, carrying out the organization and management of investment activities at all its stages under an agreement with the investor and acting on his behalf.
Objects international investment are investment assets.
According to material characteristics, they are combined into two groups: financial assets, which include securities and investment goods which can be divided into tangible and intangible assets.
Money consist of:
Fixed capital (movable and real estate: production equipment, computers, buildings for industrial and non-industrial purposes, durable goods, inventory, land and others material values);
Commodity- inventories, which represent the accumulation of stocks of raw materials to be used in the production process.
Intangible assets include:
Rights to intellectual property (industrial, including: inventions, industrial designs, trademarks, etc.; copyright and related rights, “know-how”)
Property rights- rights of use natural resources(land, subsoil, etc.) and property (movable and immovable), etc.
The main participants in international investment activity are multinational and transnational corporations (TNCs), a significant part of whose assets represent foreign direct investment. They are characterized by the ability to accumulate and move capital resources around the world and organize production in more than one country, usually on an international scale.
Numerous factors, which influence the intensity of international investment activity, can be divided into three groups: factors of the international, macroeconomic and microeconomic levels.
TO international factors include the conditions that determine global economic trends. For example, economic growth in other countries or stability of political and economic situation in a potential recipient country of foreign investment.
Among the macroeconomic factors are: government policy factors ( tax policy, trade policy, monetary policy etc.) and business cycle factors (GNP growth, export dynamics).
Microeconomic factors are quite varied. These include:
Specific advantages or factors that give the company a monopoly position in the market (diversity of product range, rich market experience, possession of advanced technology, accumulated management experience);
Factors that reduce production costs (economies on production scale, product standardization);
Factors of comparative advantage related to the company’s ability to be closer to the end consumer, to cheap resources, to technological know-how;
Factors of transaction costs, or the cost of servicing transactions;
Capital diversification factors associated with differences in interest rates and risks;
The presence of excess capacity, which makes it possible to use it for production in foreign markets (another alternative is to sell capacity and fire workers).
Thus, international investment activity represents an established system of relationships between economic entities various countries regarding the investment of capital, consists of many elements and is influenced by many macro- and microeconomic factors.
Sources legal regulation international investment activities are international acts (multilateral conventions, bilateral agreements on mutual protection and promotion of investment), international customs, acts of national legislation.
Among multilateral international acts you can indicate the Agreement on Trade-Related Aspects of Foreign Investment concluded within the WTO; Washington Convention relating to the Settlement of Disputes between States and Foreign Persons of 1965; Charter of Economic Rights and Duties of States 1974; Treaty to the European Energy Charter; Seoul Convention Establishing a Multilateral Investment Guarantee Agency (MIGA) 1985; Uniform Regime Code foreign capital and on trademarks, patents, licenses and royalties, adopted within the Andean (Cartagena) group of states; Agreement on cooperation in the field of investment activities, concluded within the CIS in 1993; CIS Convention on the Protection of Investor Rights of 1997, etc.
To unify international rules of investment activity, recommendations from international organizations are being developed. For example, the International Monetary Fund recommends distinguishing between direct and portfolio investments depending on the degree of control the investor has over the company. Direct investments include investments in shares (shares), which provide complete control over the enterprise, while portfolio investments do not provide such control 1 . This classification is the basis for the legal regulation of investments in international law.
Acts of national investment legislation V different countries can be divided into two groups depending on the models they establish for the legal regime of foreign investment. In developed Western countries (Great Britain, France, Italy, Germany, USA, etc.), the legal regime for the activities of foreign and domestic investors is basically the same. Legal regulation of foreign investment in these countries “is limited to regulations establishing exceptions to the principle of national treatment for foreign investors.”
In countries with developing economies, investment legislation is differentiated depending on the nationality of investors. Here, special legislation on foreign investments is adopted, the legal regime of which has different features. If the state pursues the goal of widely attracting foreign investment, it is established preferential treatment foreign investment, stimulating their entry into the country. If the state pursues the goal of limiting foreign investment, a more stringent legal regime is established.
With Russia's accession to the WTO, its legislation on foreign investment was brought into line with the Agreement on Trade-Related Aspects of Investment Measures (TRIMS), and a national regime for foreign investment came into force. Non-discriminatory or even more favorable treatment of foreign investment may be provided for in bilateral international treaties on the promotion and protection of investments, as well as agreements on the avoidance of double taxation.
Investment agreements. There are interstate investment agreements as a source of legal regulation of investment activities and investment agreements concluded by the investor and the person accepting the investment, including the state, and which serve as the direct basis for investment relations. Investment agreements, being civil contracts, are concluded in accordance with interstate investment agreements and regulations, including national legislation.
The legal nature of investment agreements is controversial. The discussion is predetermined by the fact that the state is often involved in such relations. Indeed, not only investment relations of the “investor - private person” type are possible, but also relations of the “investor - state” type. However, the method of regulating these relations is the same - civil law (equality, autonomy of will, property independence of the participants in the relationship). Restrictions of a public nature established by the state (its bodies) in order to control activities foreign investor, do not change the nature of these relations as private law ones.
In one case, the state determines the conditions for attracting foreign investment, the terms of production sharing agreements, enters into agreements with other states on the encouragement and mutual protection of foreign investment, i.e. acts as a public organizer of investment relations; in another, it acts as a participant in investment relations (investor, customer, user), i.e., a participant in civil legal relations. For example, the Seoul Convention Establishing an Investment Guarantee Agency considers such forms of investment as direct investment such as “service and management agreements, long-term investment-related loan agreements, franchise agreements, licensing agreements, financial lease agreements (leasing), production sharing agreements” 1.
Public order in the field of international investment activities. The desire of states to attract foreign investment for development national economy and concerns related to economic power foreign investors and threat national interests, which may come from them, predetermine the need for public order in the field of international investment activity. This procedure is established in international acts, as well as acts of national legislation, providing for various models of investment regimes: non-discrimination regime, national regime, most favored nation regime, preferential regime.
Non-discrimination regime foreign investors excludes discrimination against foreign investors due to their belonging to a state of a different socio-political system or on the basis of another distinctive feature.
National regime foreign investment means that persons making investments in the territory of another state have the same rights as their own subjects of that state. At the same time, the state may establish certain restrictions in law for foreigners in order to ensure economic sovereignty, national security, and public order.
Most favored nation treatment foreign investment is that foreign investors, when carrying out activities on the territory of another state, receive the same rights as all other foreign investors. This regime is the basis for regulating relations between WTO member states, which is enshrined in the General Agreement on Tariffs and Trade (GATT).
Preferential treatment is established with the aim of providing certain categories of foreign investors with advantages (preferences) in a particular area of investment. For example, tariff preferences were established for the CIS member countries in the Treaty establishing the Eurasian Economic Community of 2000.
International public order in the field of investment is formed not only international agreements(Seoul Convention of 1985, agreements concluded within the framework of the WTO, etc.), but also recommendatory acts (for example, the Guidelines World Bank 1992), defining the basic principles of investment activity: fair and equal treatment of foreign organizations; national treatment of foreign investment; eliminating differences between foreign investors due to their different nationalities; protection of the rights of foreign investors. An important element international public order is a mechanism for resolving investment disputes, laid down in a number of international acts. Thus, in accordance with the Washington Convention of 1965, there is International Center on the settlement of investment disputes, where conflicts between recipient states and investors are resolved.
Approaches to understanding investment activity and its legal regulation differ in different countries. To unify these approaches international organizations Recommendations are being developed, in particular recommendations given by the IMF, which, depending on the degree of control of the investor over the company, recommends the allocation of direct and portfolio investments. Direct investments include investments in shares (shares) that give a controlling stake in the enterprise, and portfolio investments include investments that do not provide complete control over the enterprise. This classification is the basis for the legal regulation of investments both at the international legal level and at the level of domestic investment legislation.
The sources of legal regulation of international investment activities are international acts (multilateral international conventions, bilateral investment agreements on mutual protection and promotion of investment), international customs, and acts of national legislation.
1 SZ RF. 1999. No. 10. Art. 1163.
See: Carro D., Juillard P. Decree. Op. P. 343.
570 Section V. Certain types entrepreneurial activity
Among the multilateral international acts, one can mention the Agreement on Trade Aspects of Foreign Investment, concluded within the framework of the WTO; Washington Convention relating to the Settlement of Disputes between States and Foreign Persons of 1965; Charter of Economic Rights and Duties of States 1974; European Energy Charter Treaty; Seoul Convention Establishing a Multilateral Investment Guarantee Agency (MIGA) 1985; Uniform Code on the Treatment of Foreign Capital and on Trademarks, Patents, Licenses and Royalties, adopted within the Andean (Cartagena) Group of States; Agreement on cooperation in the field of investment activities, concluded within the CIS in 1993; CIS Convention on the Protection of Investor Rights of 1997, etc.
Acts of national investment legislation in different countries can be divided into two groups depending on the models they establish for the legal regime of foreign investment. In developed Western countries (Great Britain, France, Italy, Germany, USA, etc.), investors, as a rule, are not divided into foreign and domestic. The legal regime for their activities is basically the same. Legal regulation of foreign investment in these countries “is limited to regulations establishing exceptions to the principle of national treatment for foreign investors.”
In countries with developing economies, investment legislation is differentiated depending on the nationality of investors. Here, special legislation on foreign investments is adopted, the legal regime of which has different features. At the same time, if the state pursues the goal of widely attracting foreign investment, a preferential treatment of foreign investment is established to stimulate their entry into the country. If the state pursues the goal of limiting foreign investment, a more stringent legal regime for foreign investment is established.
Russian legislation on foreign investment establishes the national treatment of foreign investment.
1 Silkin V.V., Foreign direct investment in Russia: legal forms of attraction and protection. M., 2003. P. 41.
Chapter 22. Legal regulation of investment activities 571
Non-discriminatory or even more favorable regimes for foreign investment may be provided for in bilateral international treaties on the promotion and protection of investment, as well as double taxation agreements to which Russia participates. Due to the intention Russian Federation To join the WTO, it will have to bring its investment legislation into compliance with the Agreement on Trade-Related Investment Measures (TRIMS), which governs the relations of WTO member states. It will be necessary to shift the emphasis in the legal regulation of foreign investment from national regulatory mechanisms to international legal ones.
Agreements in the field of international investment activities. It is necessary to distinguish between interstate investment agreements concluded by states as a source of legal regulation of international investment activities and investment agreements(agreements) concluded by the investor and the person accepting the investment (customer, contractor, etc.) and serving as the direct basis for investment relations. Investment agreements, being essentially civil agreements, are concluded in accordance with interstate investment agreements and other regulatory legal acts, including national investment legislation.
The legal nature of investment treaties is controversial. The discussion is predetermined by the fact that the state is often involved in investment relations. Indeed, not only investment relations of the “investor - private person” type are possible, but also relations of the “investor - state” type. However, the method of regulating these relations
1 Some authors attribute them to civil contracts(see, for example: Voznesenskaya N.N. Foreign investments: Russia and world experience. M., 2001. P. 158-159); others consider them as an administrative-legal institution (see, for example: Mozolin V.P. US Law and the Expansion of American Corporations. M., 1974. P. 98); still others classify them as a legal institution that has a mixed nature (see, for example: Asoskov A.V. Legal forms of participation of legal entities in international commercial turnover. M., 2003. P. 152).
572 Section V. Certain types of business activities
one - civil law (equality, autonomy of will, property independence of participants in the emerging property relations). Restrictions of a public nature established by the state (its bodies) in order to control the investment process and activities of a foreign entity do not change the nature of these relations as private law ones.
In one case, the state determines the conditions for attracting foreign investment, the terms of production sharing agreements, concludes agreements with other states on the encouragement and mutual protection of foreign investment, i.e. acts as a public organizer of investment relations. In another case, the state can act as a participant in investment relations (investor, customer, user), i.e., be a participant in civil legal relations mediated by an investment agreement. For example, the Seoul Convention Establishing a Multilateral Investment Guarantee Agency considers such forms of investment as direct investment such as “service and management agreements, long-term investment-related loan agreements, franchise agreements, licensing agreements, finance lease agreements ( leasing), production sharing agreements".
In some cases, international investment treaties act as framework agreements, since they require the conclusion of additional agreements with the help of which they can be practically implemented.
Public order in the field of international investment activities. The desire of states to attract foreign investment for the development of the national economy and fears associated with the economic power of foreign investors and the threat to national interests that may come from foreign investors predetermine the need for the existence of a certain public order in the field of international investment activity. This procedure is established both in international acts and in acts of national legislation that provide for certain models of investment regimes: a non-discriminatory regime
1 Voznesenskaya N.N. Foreign investments: Russia and world experience. P. 1 36.
minations, national treatment, most favored nation treatment, preferential treatment.
The non-discrimination regime for foreign investors excludes discrimination against foreign investors on the basis of their belonging to a state of a different socio-political system or on the basis of another distinctive feature.
National treatment of foreign investments means that persons making investments in the territory of another state have the same rights as their own subjects of that state. At the same time, the state may establish certain restrictions in law for foreigners in order to ensure economic sovereignty, national security, and public order.
The essence of the most favored nation regime for foreign investment is that foreign investors, when carrying out activities on the territory of another state, receive the same rights as all other foreign investors. The most favored nation treatment has become the basis for regulating relations between WTO member states, which is normatively enshrined in the General Agreement on Tariffs and Trade.
A preferential regime is established with the aim of providing certain categories of foreign investors with advantages (preferences) in a particular area of investment. For example, tariff preferences are established for the CIS member countries in the Treaty on the Customs Union and Common economic space 1999, Treaty establishing the Eurasian Economic Community 2000
International public order in the field of investment is formed not only by international agreements (the 1985 Seoul Convention, agreements concluded within the WTO, etc.), but also by advisory acts, for example, the 1992 World Bank Guidelines. The authority of the World Bank determines the meaning of its acts . The basic principles of investment activity include the principle of fair and equal treatment of foreign organizations; the principle of national treatment of foreign investments; a principle obliging states not to discriminate between foreign investors due to their different nationalities
See: Boguslavsky M. M. Decree. Op. P. 29.
cash affiliation; a principle that provides legal mechanisms to protect the rights of foreign investors.
An important element of international public order in the field of investment is the legal mechanism for resolving international investment disputes, laid down in a number of international acts. In accordance with the Washington Convention of 1965, the International Center for the Settlement of Investment Disputes (ICSID) was created, with the help of which public law and order is ensured in the field of international economic relations by resolving conflicts between recipient states and investors.
More on the topic § 4. International investment activities:
- 2.2. Activities of international organizations to regulate investment activities
- Economic and legal foundations of investment activity. Subjects of investment activity, their rights and obligations
- § 5. State regulation of investment activity I. The concept of investment and investment activity.
- 3.10. Development of an investment activity plan 3.10.1. Investment activity plan
- 2.1. INVESTMENT ACTIVITY 2.1.1. SUBJECTS AND OBJECTS OF INVESTMENT ACTIVITIES
- 13.1. Contents of investment activity and features of the formation of investment profit
- § 3. Composition of the investment sphere. Objects and subjects of investment activity
- 24.1 The concepts of “investment”, “investment activity”. Investment policy of the enterprise
- 6.1. Legal content of investment relations and investment activities
- The concepts of “investment”, “investment activity”. Investment policy of the enterprise
- 9.3. FACTORS AFFECTING INVESTMENT EFFICIENCY, INVESTMENT ATTRACTIVENESS AND INVESTMENT ACTIVITY
- Concepts of investment activity and investment funds
- Chapter 11. Assessment of investment risks and methods of taking them into account in investment activities
- CHAPTER 9. INVESTMENT ACTIVITY AND INVESTMENT POLICY IN RUSSIA
- 13.2. The role of international organizations in regulating the activities of international civil aviation
- Codes of the Russian Federation - Legal encyclopedias - Copyright - Agrarian law - Advocacy - Administrative law - Administrative law (abstracts) - Arbitration process - Banking law - Budget law - Currency law - Civil procedure - Civil law - Dissertations - Contract law - Housing law - Housing issues -
Topic 6 Attracting foreign capital into the investment process of Ukraine
Plan
1. International investment activity and its institutions.
2. Foreign corporate systems investing.
3. State policy to attract foreign investment.
International investment activity and its institutions.
6.1.1 General concepts on international investment activities.
International investment activity is driven by exports investment capital abroad in monetary or commodity form for the purpose of making a profit and expanding economic influence to the investment object
Depending on the nature of the property, the exported capital can be private or public.
There are two forms of capital export:
Export of entrepreneurial capital (placing it in productive entrepreneurial countries)
Export loan capital(in the form of loans, audits, invested in current accounts in foreign banks)
Entrepreneurial capital, in turn, is divided into direct and portfolio investments.
a) Direct investments are investments in foreign enterprises that provide control of the investor or his participation in the management of the enterprises.
According to the IMF definition, investments are considered direct if a foreign investor has at least 25% of the shares of the enterprise
b) Portfolio investments are investments in shares of foreign enterprises, bonds and other valuable papers foreign states, international monetary and credit organizations in order to obtain increased income due to tax benefits, exchange rate changes.
The export of entrepreneurial capital can also be carried out through the creation of black enterprises abroad or joint ventures.
The most influential international monetary system is the World Bank Group (Bretton Woods monetary system) which includes:
International Monetary Fund (IMF);
International Bank reconstruction and development (IBRD);
International Finance Corporation (IFC);
International Development Agency (IDA);
Multilateral Investment Guarantee Agency (MIGA):
6.1.2 International investment institutions.
1. The IBRD and the IMF are interstate investment institutions, established in 1944 at Bretton Woods. Only countries that have joined the IMF can be members of the IBRD.
The main goal of the IBRD is to create the beginning of the transfer of resources from developed countries to developing countries to promote their economic and social development. IBRD also provides technical assistance and gives recommendations during development economic policy. The IBRD is co-owned by the governments of about 160 countries, authorized capital The bank is formed by subscription of member countries to shares. Loans are provided to participating countries using average funds raised by the bank on world capital markets. Loans provided must have intended use– for productive purposes and to promote economic growth borrowing countries. Loans are made directly to the government or guaranteed by it.
In 1974, a development committee of the Kyrgyz Republic was created to coordinate the actions of members of the IBRD and the IMF. Currently, the Kyrgyz Republic consists of 22 members, mainly ministers of finance, appointed for 2 years.
2.IDA was created in 1960 to finance development projects and programs in poorest countries(with an annual per capita income of less than $610), there are about 40 such countries. IDA funds are formed through periodic investments from contributions from developed countries. The current IDA includes more than 140 countries. Interest-free loans IDA is provided only to governments for a period of 35-40 years, with grace period 10 years.
3. The IFC was created in 1956 and is designed to assist developing countries in developing the private sector by investing or providing loans. IFC funds consist of income from shares, own loans, and retained earnings. Only countries participating in the IBRD can be members of the IFC, and currently the IFC has 146 members.
In 1986, at the initiative of the IFC, the Foreign Investment Advisory Service (FIAS) was created. FIAS was created to develop the most rational ways to attract foreign direct investment, study the investment climate of countries, assist and develop investment legislation and organize institutions necessary to attract foreign direct investment.
4. MIGA was created in 1988 to promote equity investment and other direct investment in developing countries by eliminating non-commercial gaps. MIGA provides insurance foreign investors, from losses associated with non-commercial risk. MIGA members in the military are about 90 countries.
The objects of investment of the World Bank Group are elements of production and social infrastructure, which directly affect the acceleration of the economic development process (roads and railways, transport, communications, power supply, etc.)
5. In 1991 it was created European Bank reconstruction and development (EBRD) to support the transition to open economy, as well as the development of private and entrepreneurial initiatives in the countries of Central and of Eastern Europe. The EBRD includes 59 countries, including Ukraine. Share capital bank is 10 billion dollars. each and divided into 1 million shares. Holder 8 thousand. shares worth 80 million. is Ukraine. The main objectives of the EBRD are to promote investment premiums, restructure technologically viable enterprises, provide them long-term loans and assistance to transform them into financially sound and self-sufficient companies.
6. In 1959 the European investment banks(EIB) and financial and credit institutions of the European Economic Community (EEC) by ten EEC members. The bank's objectives were:
Development of backward participating countries;
Financing of construction, reconstruction, modernization of enterprises in individual countries, where your investments are not enough:
The bank's activities extend, in addition to the EEC members, to 74 countries that have signed an association and cooperation agreement with the EEC. Bank loans in financing investment projects occupy about 50% for developing countries associated with the EEC, issued preferential loans for up to 30-40 years. Main lending objects: transport, energy, communications, telecommunications.
7. A certain role in the development of international monetary and financial relations and investment activities is played by various groupings of countries united in groups at different times, but with similar goals: mutual assistance, coordination of activities in the field of monetary, financial and investment policy. These are the groups: Group-5 tee; Group-7; Group – 10 tee; Group –24; Group-30; Group-77;
1) Group-5 - consists of 5 countries: France, Germany, Japan, Great Britain, USA.
2) Group-7 - consists of 5 and also Italy, Canada.
3) Group 10 - in addition to the 7th, it also includes the Netherlands, Belgium, Sweden, and 11th Switzerland.
4) Group - 24 - created developing countries members of the IBRD and the IMF, it is part of the group of 77 and forms for it the main provisions on monetary, financial, credit, and investment activities.
5) Group-30 - created by leading bankers, businessmen and financial managers of developed and developing countries as an informal association.
6) Group-77 - created by developing countries and currently includes 127 countries. Periodically, the group holds a meeting of its members, usually at the UN.
Key terms: investments, investment law, investor, protection of investor rights.
As a result of studying this chapter, the student should:
know
- - features of legal regulation of international investment relations;
- - international acts, domestic legislation and other sources of legal regulation of international investment activities;
be able to
- - apply sources of legal regulation of international investment activities;
- - competently interpret acts regulating international investment activities;
- - conduct Scientific research on problems of legal regulation of international investment activities;
have skills
- - drafting written documents of legal content;
- - conducting discussions, business negotiations with partners; conducting research work in the field of international investment activities.
- 9.1. general characteristics legal regulation... _
General characteristics of legal regulation of international investment activities
In economic literature, investments are understood as “the costs of production and accumulation of means of production and an increase in material reserves” 1 . However, this definition of investment, due to its excessive abstractness, cannot be effective for the purposes of legal regulation.
The vagueness of ideas about investments in international business relations as economic phenomenon led to the fact that in the doctrine international relations And international law There is no indisputable legal definition of international investment. At the same time, disputes are going on both around the concept of “investment” and regarding the concept of “international” 2.
Practice of legal regulation investment processes follows the path when the concept of “international investment” is each time determined by a specific regulatory act pursuing one or another regulatory goal. At the same time, the goals of regulation in different cases may differ significantly, which as a result leads to different legal models of the concept of “investment”, which are embedded in one or another regulatory act. Therefore, almost all interstate bilateral investment agreements in their introductory regulatory provisions contain a detailed definition of investment or capital investment (both of these terms are used as synonyms in the vast majority of cases; in the context of this publication, these concepts are also used as synonyms), given for the purpose of use in this international investment agreement.
- 1 McConnell K. R., Brew S. L. Economics. M., 1992. P. 388.
- 2 Carro D., Juillard P. International economic law. M., 2002. P. 332.
There are even more disputes around the criteria for the classification of foreign investments and, accordingly, the legal regime of certain types of investments in the economy of the host state. At the same time, it should be noted that the following classification of forms of investment activity has received the greatest importance and distribution:
- - export of products;
- - investments in both existing and newly built production facilities Abroad;
- - transactions for the acquisition of foreign securities (primarily shares);
- - acquisition of concessions, trademarks, patents, licenses and other intangible rights in a foreign country.
In the economic and legal literature, other taxonomies of investments are also given, which to one degree or another are consonant with the above classification. Thus, depending on the object of investment activity (assets of the investments being made), tangible (including financial and material) and intangible investments are distinguished.
There are other grounds for defining the concept of international investment and its taxonomy, depending on one or another classification criterion.
However, despite the existence of different approaches to understanding investments, an important general guideline for the legal classification of investments is the recommendations of the IMF, which, depending on the degree of control of the investor over the company, recommends distinguishing between direct and portfolio investments. Actually, this general recommendation is the basis for the legal analysis of investments conducted by lawyers, who classify as direct investments such investments in shares (shares) that provide a controlling stake in the enterprise, and as portfolio investments - investments that do not provide complete control over the enterprise. At the same time, it is emphasized that “ economic entity both direct investment and portfolio investment are essentially the same: both are the movement of capital as a self-increasing value.” This classification is the basis for the legal regulation of investments both at the international legal level and at the level of domestic investment legislation. A subsidiary classification criterion when dividing investments into direct and portfolio is a subjective factor - the intention of the person making the investment to manage the enterprise (direct investment) or the investor’s desire only to receive profit from investing in the enterprise (portfolio investment). For example, in French law, direct investments are recognized as those that give the investor the opportunity to control the invested enterprise. Consequently, as legal scholars note, it is the control criterion that allows, in the most important cases, to distinguish between direct and indirect investments. At the same time, it should be noted that such criteria as the intention to manage an enterprise or the intention to make a profit are unstable. In real life, these investor intentions are often interrelated. Therefore, for the purposes of legal regulation, more formalized criteria for separating direct and portfolio investments are used.
In addition, with economic point In our opinion, investment can be carried out in the form loan capital, which is understood as “providing loans in monetary or commodity form for the purpose of making a profit at the expense of loan interest» . Legal forms When investing in the form of loan capital, there may be credit and loan agreements.
The lack of a unified position on what investment is also affects the international legal order regarding this issue. For example, one of the most significant international legal acts in regulating investment processes is the Convention on the Settlement of Investment Disputes between States and Individuals or legal entities other states, 1965 does not contain the concept of “investment”. This creates instability in a single unified view of investment, since each state, as a host country, establishes its own legal criteria for international investment in its domestic legislation, often very different from each other. As a result, the practice of international investment experiences certain difficulties as a result of unstable and unequal legal investment regimes in different countries.
Meanwhile, one of the most important factors development of international business and other economic activities is the establishment of predictable and uniform international and domestic investment law, which objectively determines the decision of investors to invest appropriate resources in the economy of a particular state. This circumstance has been repeatedly drawn attention to at numerous international forums, including UNCTAD, whose participants rightly associate changes in the conditions for doing business around the world with foreign investment.
Investment regulation in international commercial relations has a complex structure, consisting of several significant components. In the very general view Among the sources of investment law, one can distinguish acts of an international legal nature and legislative acts on investment issues adopted by specific states (domestic investment legislation).
First of all, it should be noted that an important source regulatory regulation investment activities are acts of international law (multilateral international conventions, bilateral investment agreements and treaties on mutual protection and encouragement of investments, international customs, as well as resolutions adopted by international organizations. This, with certain reservations, also includes draft international documents directed on the regulation of investments that have a “unification” effect on other regulations, including legal acts of internal legislation).
Among the acts of international law, the most significant from a practical point of view are bilateral investment agreements concluded by individual states. It is these agreements that create the main regulatory body for regulating international investment processes and occupy an overwhelming place in the regulatory system of international investment law. As noted by I. Z. Farkhutdinov, the second stage historical development The process related to the protection of foreign investment began on the eve of the 1960s, when individual European states began to negotiate bilateral treaties, which, unlike trade agreements, were devoted exclusively to foreign investment.
Another source of regulation of international investment is the domestic legislation of states. These two components (international acts and acts of domestic legislation), being relatively independent, have a significant impact on each other, as a result of which the regulation of investment processes tends to unify. It should be noted that the process of formation of international investment law takes place in a struggle between approaches formed in states with advanced economies (and, therefore, interested in promoting investments) and states with developing economies (which, as a rule, are interested in attracting investment). In the terminology of Western lawyers, the formation of the investment legal order occurs in the struggle between the North ( developed countries) and the South (developing countries and countries with transition economy) .
At the same time, given the huge gap that exists between the economies of different states, it would be premature to talk about the prospects for complete unification of international investment law at present.