<<
>>

§ 1.3. Concept and the legal nature of investment disputes

Чтобві opredelitv the nature of the international investment arbitration, it is necessary razobratvsja in the legal nature of disputes, которвіе are resolved in such order.

In отечественнвіх zakonodatelvstve and the doctrine the concept maintenance «INVeSTITSIO ННВІЙ dispute» is a bottom kus C HO HHBIM.

S.I.Krupko and M.M.Boguslavsky allocate concept of investment dispute Of wide and narrow SENSE. In wide CMBIеле is любвіе disputes, связаннвіе C investments [67]. In narrow with MBic l e under investitsio ниві mi disputes даннвіе авторві ввіделяют правоввіе спорві between the state and иностраннвім the investor, connected with investments of the last in territory of the first [68]. Thus, following logic of the definition given by S.I.Krupko and M.M.Boguslavskim, in concept of investment disputes join all спорві between the foreign investor and the state, связаннвіе with investments without dependence from формві agreements between the state and inostrannvsh the investor. In more details concept инвестициоHHBix disputes раскрвівает V.N.Lisitsa, differentiating thus two группві disputes:

«1) спорві between the accepting state and the state of the investor or the international organisation, arising from the international legal relations, carrying the international (interstate) character and разрешаемвіе on the basis of norms of the international public law within the limits of international legal sistemn і;

2) спорві between inostrannvsh the investor and other physical either legal the person or the accepting state, arising from civil, административнвіх and инвіх публичнвіх legal relations, осложненнвіх inostrannvsh an element, having transnational character and resolved by the state vessels and arbitration on the basis of the rules of law concerning different legal systems, within the limits of national legal system »[69].

Proceeding from the classification formulated by the researcher, criterion of the given division the applicable law acts, apparently.

Thus, the first group of disputes is authorised on the basis of application of the international public law, and the second group of disputes is authorised on the basis of norms of any legal system without attraction of norms of international law.

A.S.cat notices, that researchers in the given area make a start from the definitions of investment dispute fixed in the Washington convention and the Contract to the Power charter (in spite of the fact that the given two documents are signed, but not ратифицированві the Russian Federation) [70]. Statvja 25 Washington conventions указвівает that in competence MTSUIS «there is a permission правоввіх the disputes arising directly from relations, связаннвіх with investments, between the agreeing state... And the person of other Agreeing state...». Statvja 26 DEH speaks about disputes, «between the Contracting party and the Investor of another Agreeing Storonn і, concerning Investments of the last in Territory of the first...».

I.V.Mingazova defines investment dispute, as «the justiciable dispute, ввітекающий from relations, связаннвіх with inostrannvshi the investments, which parties ввіступают the state - the recipient of the capital and the foreign private investor» [71]. D.K.Labin связвівает occurrence of investment dispute with infringement between plank beds of odes HBix инвестиционнвіх agreements, которвіе can kasatvsja as субвективнвіх the rights of the certain private person, and norms of the contract as a whole [72].

A.S.cat has offered concept of the international investment dispute: «International investitsionnvsh dispute is a legal conflict between the state - the recipient of investments and inostrannvsh the investor, connected directly with investments and ввізваннвій infringement of one of the parties of the rights, predo the protege agreements between the parties or the agreement between the state-recipient and the national state of the investor» [73].

In turn, some scientists limit concept of the international investment dispute to disputes «between the state accepting foreign investments, and the foreign investor in connection with infringement by the state of the obligations, ввітекающих from international treaties of this state concerning protection and encouragement иностраннвіх investments» [74].

All ввіше представленнвіе definitions of concepts «international investitsionnvsh dispute» have following general lines. First, bolvshinstvo ученвіх converges that subjects of dispute are the foreign investor and the state accepting the investments. Во-вторвіх, dispute should бвітв is connected with the investments, the carried out foreign investor in the accepting state. The federal act № 160 FZ-RF «About foreign investments into the Russian Federation», and also Regulations of the conclusion of international treaties of the Russian Federation about protection of investments and capital investments also contain the requirement about the fact of an investment of foreign actives in territory of the accepting state, as additional criterion for definition of the legal personality of the investor. It is represented, that these signs really are obligatory to qualify dispute as investment. Thus, it is necessary to consider, that the given concept includes various groups of the disputes which features depend, first of all, from the basis of their occurrence. Thus, all investment disputes can be classified on the disputes following from infringement of the investment contract, the international investment agreement or the national legislation on foreign investments of the accepting state. Thus, it is necessary to be reserved, that the greatest interest for researchers of the international investment arbitration is represented by the disputes following from the international investment agreements. It is caused, first, by their finding in sphere of the international public law, in - the second, the special "general" form of the consent of the state on consideration of such disputes, thirdly, the maintenance of the given international investment agreements as complex of standards of protection of the foreign investor, сформулированнвіх sometimes extremely двусмвісленнвім in the image.

Me following definition of the international investment dispute which, probably is most podrobnvsh and universal is offered. The international investment dispute is a dispute between the foreign investor and the state accepting investment concerning realisation by an investment of investments of the last first in territory, arising on the basis of the investment contract between inostrannvsh the investor and the accepting state, the international investment agreement between the state of the investor and the state accepting investment or on the basis of positions of the national legislation on foreign investments of the accepting state.

To the Russian legal system, as well as all countries of the romano-German system, division of the right on private and public [75] is inherent. Thus, in the Russian science the legal nature of any phenomenon, first of all, is defined by its reference to area public or private law. The majority of authors believes, that now in the doctrine the opinion on the private-law nature of investment disputes [76] prevails. The given statement proves to be true positions of researchers, которвіе carry инвестиционнвіе спорві to a category смешаннвіх disputes, thus approving, that смешаннвіе спорві have private-law character [77].

Ampere-second. Cats believes, that reference инвестиционнвіх disputes to private-law or public sphere is unpromising [78]. The author approves, that «инвестиционнвіе спорві contain чертві both international public, and international private and the state domestic law», and, accordingly, carry «kompleksnvsh character» [79].

S.I.Krupko, spending classification by character of the requirement, divides инвестиционнвіе спорві on частноправоввіе, publicly-pravovv_e and смешаннвіе, and on the occurrence basis - on sporv і, связаннвіе with unilateral suverennvshi state certificates on vmeshatelvstvu in investment dejatelvnostv and связаннвіе with инвестиционнвім agreement [80].

Two classifications, представленнвіе last author, are especially znachimvshi as allow razgranichitv инвестиционнвіе спорві on частнвіе and публичнвіе. Thus the bases даннвіх classifications неразрвівно svjazanv і as reference of investment dispute to private-law or public sphere depends on the basis of its occurrence. Owing to that vesv the file of the international investment right is aimed at protection of the investor as predpolozhitelvno by more vulnerable storonn і, as a rule, dispute occurrence is connected with opredelennvshi the actions of the accepting state presumably breaking the rights of the foreign investor. The state can operate as the subject of private law (jure gestionis) and in quality suverena (jure imperii). Accordingly, if between the state and the foreign investor the civil-law agreement is entered into, and the state breaks one of its positions dispute has private-law character (for example, default or inadequate execution by the party of obligations under the investment agreement, change of the investment agreement Etc.) And the arbitration of such disputes differs nothing from the international commercial arbitration. However, in a case when the state publishes the regulatory legal act which discriminates position of the foreign investor, or carries out expropriation of its property, it makes actions of public character, breaking thus the guarantees fixed in the international investment agreements or national laws about protection of foreign investments. For example, in business Occidental v Ecuador [81] basis for the reference of the investor in the international arbitration the edition the authorities of Ecuador became standard - the legal act about increase of the VAT from an oil recovery the foreign companies on 50 %, and later 18 months on 99 %. As a result, the arbitration tribunal has come to conclusion about infringement of a guarantee of the fair and equal reference provided by the bilateral investment agreement between Ecuador and the USA. As other example of dispute of public character business Metalclad v Mexico [82] in which the Mexican government has given out the permission of the American company to creation and functioning of a dump of a dangerous waste can serve. Subsequently local authorities have refused to give out the necessary building licence, and the regional government declared the disputable earths a national zone of protection of cactuses. In the given case the arbitration has considered, that actions of Mexico break an interdiction for the expropriation, fixed in article 1110 of the North American agreement about free trade.

In the international investment arbitration disputes, ввітекающие from international инвестиционнвіх agreements are considered mainly, wasps but BHBi m the maintenance которвіх are guarantees of the accepting state in relation to inostrannvsh to investors. For example, a guarantee of the fair and equal reference, a guarantee of fair and timely indemnification in case of expropriation, a guarantee of full safety and safety, a guarantee on fair judicial razbiratelvstvo etc. Infringement даннвіх guarantees ввіходит is far for пределві infringements частноправоBBix contracts, and, accordingly includes consideration mainly publicly-pravovv_h disputes where state actions jure imperii are frequently estimated. In the given context, in the domestic literature it is noticed, that the investment arbitration «gets lines of a way of the permission a hell ministrat willows HBix of disputes between the state as suverenom and the investor as частішім the person, alvter nativno go to interstate legal proceedings of the appeal is wrong measures нвіх actions (inactivity) of the state and it должностнвіх persons» [83]. In the turns, иностраннвіе researchers also even more often consider investitsionnvsh arbitration as the formation and application tool so назвіваемого globalvnogo administrative law [84].

Thus, in the international investment arbitration are considered спорві mainly public character as they frequently связанві with state actions jure imperii, которвіе break between plank beds of odes нвіе publicly-pravovv_e guarantees in polvzu investors, закрепленнвіе in international инвестиционнвіх agreements. It inevitably leads all to occurrence of problems at a stage of a recognition and execution of the decision of the international investment arbitration, as, for example, the Russian legal system does not assume consideration in arbitration publicly-pravovv_h disputes (see more in detail § 2.1.1. The present research), that should uchityvatvsja at their definition arbitrabilvnosti, the competence of arbitration and the decision of other questions arising thereupon.

<< | >>
A source: Bessonova Anastas Igorevna. Recognition and executions of decisions of the international investment arbitration. The dissertation on competition of a scientific degree of the master of laws. Ekaterinburg -. 2017

More on topic § 1.3. Concept and the legal nature of investment disputes:

  1. §2. Legal nature of investment disputes and an order of their permission in ATES
  2. §2. Legal nature of investment disputes and an order of their permission in ATES
  3. 2.2. Legal nature of investment disputes between contracting parties (states) and an order of their permission
  4. 337 2.1. Legal nature of investment disputes between foreign investors and the contracting party and an order of their permission
  5. § 2.3. The legal nature of the investment share
  6. § 1. The legal nature of the international litigation as bases for formation of specialised systems of the resolution of disputes
  7. § 1.5. Features of legal regulation of procedure of a recognition and execution of the decision of the international investment arbitration taking into account its legal nature
  8. § 1. The legal nature of investment arbitration
  9. the CHAPTER IV. LEGAL PROTECTION FRAMES of FOREIGN INVESTMENTS And the ORDER of the PERMISSION of INVESTMENT DISPUTES In ATES
  10. the CHAPTER IV. LEGAL PROTECTION FRAMES of FOREIGN INVESTMENTS And the ORDER of the PERMISSION of INVESTMENT DISPUTES In ATES
  11. §2. Settlement of disputes »following from the international investment RELATIONS
  12. concept and classification of the disputes following from tax legal relations
  13. concept and value of alternative forms of the pre-judicial settlement of disputes following from tax legal relations
  14. concept and signs of investment legal relation
  15. § 2. Concept, legal nature and contract functions
  16. 1.1. Concept, the legal nature and essence of family-legal responsibility
  17. §3. Mechanisms of settlement of the INTERSTATE DISPUTES FOLLOWING FROM BILATERAL And MULTILATERAL INVESTMENT CONTRACTS
  18. Concept and the legal nature of arbitration agreements
  19. § 2. The legal nature and concept of the right to the general land tenure