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5. Minimisation of requirements (Performance Requirements).

Many countries-recipients of the capital suppose direct foreign investments into hope, that it will help to receive new workplaces, will strengthen export volume, will lead to increase in stocks of a foreign currency and will improve the balance of payments.
That direct foreign investments promoted the decision above the specified problems, demands and conditions for investment began to make a number of the countries accepting investment specially. Other developing countries began to encourage investors to voluntary performance by investors of these requirements, co-ordinating them with granting of stimulus. So there were measures of investment regulation (TRIMS) which interfere with international trade development. These measures Represent the tools of management used by the government z a host country concerning streams of foreign and local capitals. Proceeding from the Agreement essence (TRIMS) under measures it is necessary to understand internal measures, that is the measures undertaken by a member of the WTO, in other words, by the state-participant of the Agreement, operating independently within the limits of the internal law and order. In this case, it is unimportant, whether these measures follow from the law or from the internal subordinate legislation, and whether this or that measure against set of persons in general or against one is directed. Mainly, presence of the certificate having legal effects, is a necessary and sufficient condition. See: Business Facilitating Measures to Improve the Domestic Business Environment//Options for Investment Liberalization and Business Facilitation to Strengthen the APEC ECONOMIES - For Voluntary Inclusion in Individual Action Plans. 2 See more in detail: Incentives and Foreign Direct Investment - Geneva, 1996. See: Evteeva M.C. The decree. soch. With. 107; Founthein R., Gadbow J. Trade Related Performance Requirements under the GATT - MTH System and under US Law//Law and International Business. - 1982. Vol.14. - P. 129; Sanfarain A. Trade Related Investment Issues/In: Trade Policy in the 1982. N.Y., 1983 General Agreement on Tariffs and Trade//G.A.T.T. Activities, 1989. Vol. 66; The Impact of Trade - related Investment Measures on Trade and Development.-N.Y., 1996. 223 To a measure having legal effects, concerns: on the one hand, it is measures which are obligatory or come under to enforcement owing to internal legislation or administrative decisions, on the other hand, it is measures, according to which it is necessary to operate to achieve the necessary benefits. To number it is more important than aspects in activity of the national states falling under sphere of regulation TRIMS, concerns: 1) requirements of the local maintenance according to which the foreign investor is obliged to sell in the local market a part of the accepting state of the goods made in territory or services at a rate of the established minimum percent from a final total product or to develop certain industrial branches in the given state, 2) export requirements which impose on the investor of the obligation to export a part of made production on the established conditions; 3) requirements of the balance of trade which oblige that the import volume constituted a certain share to export volume; 4) technological transfer requirements, that is the requirement of granting of the permission to managing subjects of the state accepting investment to use industrial technologies or to introduce concrete components of technological process in manufacture in territory of the given state; 5) sale requirements in the home market, obliging enterprises to realise Certain share of production in home market that is equivalent і to restriction of export of production of the enterprise; and other.
Considered measures are undertaken almost by all countries-participants ATES. As to bilateral investment Agreements the majority of bilateral investment agreements is not forbidden directly by measures of investment regulation (TRIMS). If they impose after the admission of investments they can break the guarantee of a national treatment provided by the investment agreement. In that degree in what they are assigned as a condition of the admission of investments, they can avoid national treatment infringement because under many bilateral investment agreements the national treatment is applied to foreign investments only «after investments are admitted». See more in detail: Evteeva M. S. The international bilateral investment agreements. - M, mezhdunar. Relations, 2002. S.108-109. See more in detail: Taeho Bark. Harmonization of APEC Investment Instruments with Investment Agreements of APEC Economies//APEC Workshop on Bilateral and Regional Investment Rules/Agreements. Merida, Mexico.17-18 May 2002. P. 43-44. 224 Some bilateral investment agreements forbid measures of investment regulation (TRIMS) as an admission condition. For example, «in approximate bilateral investment agreement 1984 it is provided, that any party will not establish TRIMS as a condition of an establishment, expansion or maintenance of investments which demand realisation of export of the made goods or provide, that the goods or services should be bought in the local market or which make identical demands». The overwhelming majority of the concluded USA of bilateral investment agreements includes an interdiction for measures of investment regulation (TRIMS) as conditions of the basis of expansion or poderzhanija the investment project. A number of the bilateral investment agreements concluded by Canada, follows the same approach. Examples in this respect are bilateral investment agreements which Canada concluded with Philippines, Trinidad and Tobago, Venezuela and Barbados. The bilateral agreement about protection of the investments, concluded between the USA and Zaire (now Democratic Republic Congo), on another has changed action of the specified position. It has forbidden a host country to assign measures of investment regulation to investments from other finishing speaking party and demands from a host country to make the greatest efforts to prevent putting on of such measures. Obviously, the interdiction for them does not interfere with a host country to give special stimulus that the investor has agreed with the given measures. If any such privileges are entered, owing to a most favoured nation treatment they should give to all investors. As to the Code of direct foreign investments ATES the principle of "minimisation of requirements», containing in it, adheres to the same approach fixed in the WTO and above considered bilateral investment agreements which forbid measures of investment regulation (TRIMS). So, the principle of minimisation of requirements ATES is understood «as the obligation of each of the countries-participants ATES to minimise the regulating investments of the requirement limiting growth / expansion of trade and capital investments». For achievement of the purpose of this principle, in the Supervising program it is recommended: to fix necessity of the publication and real performance of the programs not contradicting TRIMS and specified in the illustrative list of this agreement; to reach conformity of the national TSit. On: Evteeva M. S. The international bilateral investment agreements. M, mezhdunar. Relations, 2002. С.110. See: Evteeva M. S. The international bilateral investment agreements. M, mezhdunar.otnoshenija, 2002. С.110. 225 practices of member countries ATES to illustrative list TRIMS to 2000г. On the basis of acceptance of measures on acceleration of performance of the developed plans; to liquidate or reduce agreements on the unilateral / or intergovernmental bases, following requirements concerning promotion to industrial activity, namely: preparation of local shots, employment of a local labour, manufacture conducting only on territories of the accepting state, realisation of sales in home market, technology transfer, research and development carrying out (Research and Developmental Works) only on territories of the accepting state, obligatory realisation of export.
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A source: CHhorn prolyng. Legal regulation of foreign investments in the countries-participants ATES / the Dissertation / Moscow. 2007

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