<<
>>

3. The National treatment.

the greatest distribution has received nevertheless granting to the foreign investor of a national treatment. So, according to a national treatment provided by the voluntary Code of direct foreign investments ATES, «behind the exceptions provided in the internal See: § 3 Chapters of II present work.
211 laws, administrative acts and departmental instructions each of the countries-participants ATES undertakes to represent to foreign investors concerning establishment, expansion, management and protection of their investments a mode not less favorable, than that mode which is given in similar circumstances to own investors ». The present mode means equating of volume of the legal personality foreign physical and legal bodies to volume of the legal personality local physical and legal bodies (the country of realisation of investment activity). Thus, the legal maintenance of a national treatment consists in equalising of a legal status national and foreign persons. A direct consequence of application of a national treatment is use at legal regulation of activity of foreign persons (foreign investors) all file of the legal rules usually applied concerning national physical and legal bodies. Differently, the national treatment allows the foreign person / to the foreign investor to take advantage of all a darkness legal possibilities which are given by the national legislation to own citizens and national legal bodies. The national treatment principle is expressed basically in the internal law. In international treaties it has received application basically for definition of the grazhdansko-standing in court of citizens of the agreeing states (mutual granting of an easy approach in courts) and on some separate questions (privileges, advantages etc.). So, at national level in the countries-participants ATES, for example, in the Russian federation the national treatment principle with reference to physical persons is fixed in the constitution 1993г., item Z which item 62 formulates following position: «foreign subjects and stateless persons have in the Russian Federation the rights and perform duties on a level with citizens of the Russian Federation, except the cases established by the federal act or the international treaty of the Russian Federation». Concerning private-law questions of activity of foreign legal bodies the national treatment principle has found the expression in item 1 of item 2 GK the Russian Federation: «the rules established by the civil legislation, are applied to relations with participation of foreign subjects, stateless persons and foreign legal bodies if other is not provided by the federal act». Besides it, the national treatment principle also is fixed in the law on foreign investments of the Russian Federation. According to item 1 of item 4 of the present law «the legal Lunts L.A.kurs the international private law. The special part. M: the Legal literature, 1975. С.21. 212 mode of activity of foreign investors and use of the profit received from investments cannot be less favorable, than a legal regime of activity and use of the profit received from investments, given to the Russian investors, behind the withdrawals established by federal acts ». As it has been above told (gl. I § 2 present works), the present mode is« the absolute standard »which corresponds to main principles of regulation of foreign investments in the international public law, in particular in the voluntary code of direct foreign investments ATES.
In the USA as the international experts have noted, the investment mode in which the legal regime of foreign investors is much more favorable and better, than that mode established in the voluntary code of direct foreign investments ATES is offered. It means, that the national treatment provided in the legislation of the USA, substantially answers the purpose of the Bogorsky Declaration concerning free investments. For example, the fifth amendment of the Constitution of the USA provides, that the private property cannot be expropriated for public using without fair indemnification, and the fourteenth amendment provides, that any staff should not deprive of any property without lawful proceeding. These two constitutional positions which limit, on the one hand, capacity of the federal government, and with another - capacity of states, protect both property of Americans, and property neamerikantsev (foreign investors). The USA - the country which does not have special laws, directly regulating investment activity. Nevertheless, in territory of the USA (both at federal level, and at level of states) it is provided not discrimination mode to foreign investors practically in all sectors of economy, and foreign investors are admitted to get shares in all already existing enterprises. Exceptions of a national treatment for them are those sektory which are considered strategic with a view of maintenance national and the public safety. In Vietnam the same mode primenitelno as to national, and to foreign persons is fixed in the Constitution 1992г. According to item 22 present See: Legal regulation of foreign investments in the Russian Federation and not obliging investment principles ATES / CHhorn prolyng, - Dews. Un y friendship of the people. - M, 2005 - Dep. In INION the Russian Academy of Sciences № 59096 from 01.02.2005г. United States of America II Individual Action Plan. November 1998. P. 33. See: in the same place. 213 constitutions «industrial and trade enterprises (national and foreign) are equal before the law. Their capitals and lawful property are protected by the state. These enterprises can be created in the form of joint venture and partnership with separate persons and the economic organisations in the country and abroad according to positions of the law of Vietnam"."The Lawful property of separate persons and the organisations cannot be nationalised» (item 23). «In cases of the emergency made because of a reason of national protection, safety and national interest, the state can make compulsory purchase or confiscate parts of property of separate persons or the organisations with indemnification support for current market prices» (item 23). « The state encourages the foreign organisations and separate persons to invest capitals and technologies in Vietnam according to the Vietnamese law and international law and custom; it guarantees the right to the lawful property to the capital, property and other interests of the foreign organisations and separate persons. The enterprises with foreign investments cannot be nationalised »(item 25). Along with the constitution, as well as in other member countries ATES, in Vietnam the national treatment is provided and in other laws and normative acts, indirectly and directly regulating investment activity. For example, by Article 21 of the law about foreign investments it is provided, that« at capital investment realisation in Vietnam capitals and other lawful means of foreign investors cannot be requisitioned or expropriated administrative actions, the enterprises with foreign investments cannot be nationalised ». Nevertheless, with a view of protection national and the public safety, that is bars of claim by lapse of time of easing of competitiveness of the local national enterprises are established some restrictions on activity of the foreign capital, so-called withdrawals from a given mode (national treatment). As a rule, these restrictions can be made in shape: 1) establishments of a special mode of the admission of the foreign capital in certain branch; 2) prohibitions of activity of the foreign capital in certain branch; 3) establishments of restriction of a share of foreign participation in the enterprise capital (creation mixed / joint ventures with obligatory participation of the national capital); 4) establishments of a special fiscal mode; 5) carrying out defined kontsessionnoj politicians. So, in the Russian Federation the federal act about foreign investments into the Russian Federation allocates two kinds of withdrawals from a national treatment: withdrawals of restrictive character and withdrawal of stimulating character in the form of privileges for the foreign 214 investors. According to item 2 of item 4 of the present law of withdrawal of restrictive character maintenance of defence of the country and safety of the state »are supposed only within the limits of constitutional limits of the rights and freedom of the person and the citizen i.e. when« it is necessary with a view of protection of bases of the constitutional system, morals, health, the rights and legitimate interests of other persons. Unlike withdrawals of restrictive character of withdrawal of stimulating character are established in the form of privileges for foreign investors in interests of social and economic development of the Russian Federation. Kinds of privileges and an order of their granting are established by the legislation of the Russian Federation (paragraph 2 of item 2 of item 4 of the federal act). Except the withdrawals provided in article 4, in the law on foreign investments into the Russian Federation does not contain any-or list of branches and activity kinds in which it is forbidden or activity of foreign investors is limited. These restrictions contain under many normative acts, not only legislative, but also subordinate legislation. For example, besides requirements to registration documents and general terms of licensing of the bank organisations the Law «about banks and bank activity of the Russian Federation» establishes a quota of participation of the foreign capital in bank system of the Russian Federation (the relation of the total capital belonging to non-residents in charter capitals of the credit organisations with foreign investments, and the capital of branch of foreign banks to the cumulative charter capital of all credit organisations registered in territory of the Russian Federation). In insurance sphere the size (quota) of participation of the foreign capital in charter capitals of the insurance organisations-15 of % with which excess licensing stops is established. Heads of the insurance organisation with foreign investments (the persons who are carrying out functions of an individual executive office and the chief accountant) should have citizenship of the Russian Federation and other. The federal act from May, 7th, 1998 № 74-FZ about features of the order actions of the Russian joint-stock company of power and electrification «the Uniform power system of Russia» and actions of other joint-stock companies of the electric power industry, being in the federal property the percent is organic also Actions which can belong to foreign investors and being under them z the control to the Russian persons in the Russian Open Society "United Power Systems" charter capital-25 %. CH.Z item 55 of the Constitution of the Russian Federation. Item 18 of the Law on banks and bank activity of the Russian Federation. See: the Federal act from November, 20th, 1999 № 204 - FZ «0 modification and additions in the Law of the Russian Federation» about the organisation of insurance business in the Russian Federation//SZ the Russian Federation. 1999. № 47. Item 5622. 3СЗРФ.1998. № 19. Item 2070. 215 Twenty percent of common stocks limit a share of participation of foreign subjects and the organisations in charter capitals of the organisations - of proprietors of regional systems of gas supply, gazoraspredelitelnyh systems, Uniform system 1 2 Gas supply (which operates Open Society "Gazprom"), and other. In the USA interests of national safety justify not only restrictions for foreign investments into the defensive industry, but also and restrictions in sphere of sea and air transport, communication (radio, telegraph, a satellite communication). For example, in sea transportations such shipping company can be engaged only: 1) which is the corporation founded and operating under laws of the USA; 2) the higher official, the chairman and the majority of which members of board of directors are the American citizens; 3) a controlling interest in which belongs to the American citizens (for the companies of coasting navigation it not less than 75 % of the charter capital, in case of the company of the international navigation control stake presence in hands of Americans (controlling interest) is defined on the basis of actual facts in the course of licensing). In airline to foreigners cannot belong more than 25 % of the capital, in the broadcasting companies — no more than 20 % (restrictions for affilirovannyh (affiliated persons or Control Persons) with foreigners of persons — to acquisition more are established also than 20 % of a share holding the company supervised by other company in which to foreigners belongs more than 25 % of actions will not be admitted). The higher limit of participation of foreign investors is established by the law on a satellite communication of 1962 at a rate of 20 % of actions of corporation of a satellite communication. The most rigid legal regulation operates concerning criteria of selection of the companies for placing of military orders (presence of 75 % of the capital in hands of the American citizens and the legal bodies, all directors — the American citizens), from leak abroad (i.e. presence in staff of the companies at least one foreigner) leads the slightest doubt in a question of maintenance of safety of military secrets to refusal in order delivery). The atomic engineering of the USA (according to the Law on atomic engineering of 1954) is completely closed for foreign investments. In Canada participation of foreign investors is limited in the uranium industry (no more than 49 % of the charter capital of the company which are engaged in extraction and See: ch. Z item 7, ч.1 Item 15 of the Federal act from March, 31st 1999г. № 69 «About gas supply in the Russian Federation»//SZ РФ.1999. № 14.CT.1667. See: the previous chapter of the present work. A guide to foreign investment under United States law N.Y, P. 160. A guide to foreign investment under United States law N.Y, P. 176-180. 5 Ibid. P. 195-200. 6 Ibid. P. 171. 216 processing of uranium), in tele-radio broadcasting (80 % of the charter capital should belong to Canadians), in sphere of the oil and gas industry (to sell the profitable enterprises to foreigners with cost of actives more than 5 mln. dollars of the USA it is not authorised; the enterprises which are in an inconvenient financial position, can be sold only with the permission of the government provided that the investor will agree on certain level of participation of Canadians in the charter capital, and also will take up concrete obligations on volume of investment and use of a local labour). The government permission is required also for realisation foreign Investments into such spheres, as the edition and distribution of books, magazines, newspapers, audio - and і a video production. In Mexico a number of fields of activity also is reserved exclusively for national investors: gasoline retail, broadcasting and TV (except cable), etc. (item 6 of the Mexican Law on foreign investments of 1993). In some cases foreign investments are supposed in the Mexican economy with restrictions, for example, to 49 % of the charter capital: in the companies involved in sphere of land transportations of cargoes and passengers (since January, 1st, 2004 this branch will be completely open for foreign investors); in insurance establishments; in leasing and faktoringovyh corporations; in a warehouse economy; in manufacture and sale of the weapon and an ammunition; in a cable television; in the telephone companies; in sea transportations in cabotage, etc. (item 7 of the Law on foreign investments). Only with the permission of the National commission on foreign investments acquisition more than 49 % of a share holding in the companies which are engaged in the international sea transportations, and in legal firms (Law item 8) is possible. Twenty five percent limit participation of foreigners in charter capitals of the airlines which are engaged in internal transportations (Law item 7). Thus it is necessary to mean, that the most important, "strategic" branches are in Mexico the state monopoly (an oil recovery and other hydrocarbons, the petrochemical industry, electric power industry, atomic engineering, a satellite communication, mail, telegraph, railways (Law item 5). At the international level the national treatment institute also is known to Agreements on encouragement and mutual protection of capital investments and about trade and economic cooperation of the states, and not in all agreements Raby J. The investment provisions of the Canada-United States Free Trade Agreement: A Canadian perspective//American Journal of International Law. 1990. Vol. 84. № 2. P. 398 400. The English text of the Law of Mexico about foreign investments see: International Legal Materials. 1994. Vol XXXIII. № I.P.207—224; See also: Fisher J.Prjamye foreign investments for Russia: strategy of revival of the industry. With. 207-208, 227. 217 national treatment granting is provided. «Absence in agreements of position on a national treatment does not mean that its application can be called into question. National treatment granting became the usual regulation of foreign investments in the national legislation and the general principle of regulation of the international economic relations». So, conditions about national treatment granting are absent almost in all bilateral agreements concluded by member countries ATES among themselves. In the Agreement from December, 14th 1990г. About encouragement and protection of capital investments between the Government of the Union of the Soviet socialist republics and the republic Korea Government it is specially provided to create the right of each contracting party in the territory favorable conditions of realisation of capital investments to investors of other Contracting party and to suppose such capital investments according to the legislation (the item 1.ст.2.). Besides, each of contracting parties undertakes to give to capital investments of investors of other contracting party a fair and mode equal in rights and with it to provide full protection and safety in the territory, should not aggrieve by acceptance of wrongful or discrimination measures to management, the maintenance, using, possession or the order capital investments of investors of other Contracting party in the territory (и.п.2,3 item 2 of the Agreement with Korea). The Agreement from June, 16th 1994г adheres to the same definition. About encouragement and mutual protection between the Government of socialist republic Vietnam and the Government of the Russian Federation the following in the image: «Each of Contracting parties will encourage investors of other Contracting party to carry out capital investments in the territory and according to the legislation to suppose such capital investments. Supposing these capital investments in the territory, each of Contracting parties guarantees according to the legislation a full and unconditional legal protection to capital investments of investors of other Contracting party» (the item of item 1,2 of item 2 of the specified agreement). In all agreements concluded by the countries-participants ATES among themselves, such right of each contracting party is provided. Articles carry ArnettE.J. Canadian Regulation of Foreign Investment//the Canadian Bar Review, v.50,1972, p. 219; See Also: Doronina N.G., semiljutina N.G.legal regulation of foreign investments into Russia and abroad. M: finstatinform, 1993. С.95. 218 name accordingly «Encouragement and protection of capital investments» or «Encouragement and the admission of capital investments». The definition of a national treatment provided in bilateral agreements about encouragement and mutual protection of investments, also has found the expression in multilateral agreements on assistance and protection by the investment and about trade and economic cooperation of the states (for example, Agreement ASEAN on assistance and protection of investments, NAFTA, etc.). So, according to item of III Agreement ASEAN about assistance and protection of investments against December, 15th 1987г «each of Contracting parties is obliged to encourage and create favorable conditions in the territory for capital investments of other contracting party. All capital investments to which the present Agreement concerns, regulated by the legislation and host country rules, including rules about registration and an estimation of these capital investments. Supposing these capital investments in the territory, each of Contracting parties is obliged to give a fair and mode equal in rights and to provide full protection with it in the territory» (the item of item 1,2 of the present Agreement). Thus, owing to a national treatment and the legal body the same mode what is given to domestic citizens and legal bodies is given to foreign subjects. As on foreign physical and legal bodies extend those rights and advantages which in the given country use local physical and legal bodies, all of them are put in equal position. In this case national and foreign investors from the point of view of a principle national ATES act in the market as partners equal in rights that does not restrain their interests. In practice granting to foreigners / to foreign businessmen of a national treatment in any country has for an object creation of normal conditions of peace international cooperation, but it is the purpose can be reached in the event that the countries-participants of the international trade turnover are ready to such cooperation with each other, that is to give to citizens / to businessmen of other agreeing state in the territory those property rights in accordance with general practice with own citizens / businessmen. Only in that sense granting to foreigners / to foreign businessmen of a national treatment has the precondition reciprocity. Thus the reciprocity should be formal, that is, is constructed on a principle of the conclusion of Agreements - 219 Agreements on encouragement and mutual protection of investments, on trade and economic and technical cooperation i.t.d. In this context ATES recommends to apply «a principle nediskriminatsii» concerning a national treatment of which starts with branch restrictions, barriers concerning the property, an order of financing and other measures. In particular, with a view of to reduce branch restrictions in the countries-participants ATES in a mutual order in the Supervising program for liberalisation of mutual investments and trade within the limits of ATES following moments are offered: 1) to expand sphere of action of a national treatment on one or more branches, having established for this purpose concrete term of introduction of a similar measure; 2) to expand sphere of action of a national treatment on economy, having established for this purpose concrete term of introduction of a similar measure, except for separate branches; gradually to expand scales of application of a national treatment on one or a considerable quantity of branches; 4) to open the additional branches closed for the admission of foreign investors or the permission of the admission of foreign capitals with insignificant restrictions. Differently, to reduce the list of the branches closed for the admission or partially limiting the admission of direct foreign investments; 5) to liquidate or gradually to remove branch restrictions on foreign capital investments; and the end to review agreements in force, dogovory and laws for the purpose of elimination of restrictions concerning a national treatment.
<< | >>
A source: CHhorn prolyng. Legal regulation of foreign investments in the countries-participants ATES / the Dissertation / Moscow. 2007

More on topic 3. The National treatment.:

  1. 1.2 Preventive maintenance and treatment complication from mucous oboyolochkia mouth at orthopedic treatment with use demountable playostinochnyh prostheses
  2. CHAPTER 3. RESULTS of TREATMENT SICK of MUSCULARLY-INVAZIVNYM CANCER of the BLADDER In STAGE T2bN0M0G1-G3-T3aN0M0G1-G3 Depending on the KIND of OPERATIVE TREATMENT
  3. postoperative complications at treatment of a cancer of a rectum: the reasons, treatment, preventive maintenance
  4. 3.1.1. Requirement for a national securities rating for development of the Russian capital market. Criteria with which should satisfy a national securities rating
  5. 1.4 Modern methods of treatment of cystic formations of ovaries 1.4.1 Surgical treatment of formations of ovaries
  6. § 2. Payment tools in national payment system of Russia. The national payment tool
  7. therapeutic methods of treatment
  8. complex treatment of patients with diseases parodonta
  9. Additional treatment
  10. postoperative chemotherapeutic treatment.
  11. treatment of varicose illness
  12. orthodontic and orthopedic treatment