International investment law. Investment law. Textbook (A. A. Ovchinnikov)

The textbook is one of the first fundamental comprehensive studies of investment law in Russia, prepared by leading experts in the field of investment law, taking into account the requirements of state educational institutions. For students, graduate students, teachers of law and economic universities and faculties, practicing lawyers, as well as for everyone who is interested in the problems of investment regulation.

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The following excerpt from the book Investment law. Textbook (A. A. Ovchinnikov) provided by our book partner - the company LitRes.

Investment law in the system of law

§ 1. The concept and subject of investment law

Transition to market economy in Russia is inextricably linked with the development of investment as a professionally carried out economic activity aimed at making a profit. In the context of rapidly developing investment activity, including those with foreign participation, a new complex branch has been formed in the system of Russian law - investment law.

The concept of "investment law" can be considered in four main meanings.

Investment law as a branch of law is a set of legal norms governing public relations regarding the attraction, use and control of investments and ongoing investment activities, as well as relations related to the responsibility of investors for actions contrary to the law.

Investment law as a system of legislation- this is a set of legal norms contained in the sources of law (normative legal acts, business customs) and regulating the procedure for carrying out investment activities. The study of investment legislation also involves the analysis of judicial and arbitration practice in order to achieve uniformity in the understanding and application of the norms contained in the sources of law.

Investment law as a scientific discipline, i.e., a system of knowledge, a set of ideas of scientists about a given industry. The science of investment law learns the origins of its origin, stages of formation and predicts, based on the amount of accumulated information, the direction of development.

Investment law as academic discipline - a system of generalized information about investment law as a branch, its legislation and practice of application, as well as about science.

The system of the subject of investment law includes:

- public relations associated with accommodation on the territory Russian Federation invested in the economy financial resources, other property (both movable and immovable, not withdrawn from civil circulation), including property and personal non-property rights (for example, copyright, patent law). The group of relations under consideration also includes agreements on joint activities, including relations on education legal entities, created on the basis of equity or 100% participation of foreign investors, as well as relations for the creation of branches and representative offices of foreign legal entities in the territory of the Russian Federation;

– public relations on control over the admission, creation and activity on the territory of the Russian Federation of foreign investors and legal entities formed by them.

The presented group of relations includes state registration of enterprises with foreign participation, licensing of certain types of activities of joint ventures, certification and standardization of their results. entrepreneurial activity. This group of relations is explained by restrictions on the entrepreneurial activities of foreign investors in certain areas of the economy: communications, telecommunications, energy, transport, etc. - in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of Russian citizens, to ensure the defense of the country and security of the state and the need for this part state control for the proper implementation of Russian legislation;

- public relations related to the creation in Russia of the necessary investment climate (regime) in order to attract foreign investment in the country's economy, including the provision by the state of guarantees and benefits to foreign investors when they carry out investment activities within the framework of the current legislation. This group also includes relations to protect the interests and rights of investors from unlawful interference by the state or third parties;

- public relations associated with the imposition of liability for investment (entrepreneurial) activities that are contrary to the law.

Investment law is closely related to civil, business, financial, administrative law, since social relations that are the subject of investment law are at the same time part of the subject of the above branches of Russian law. Therefore, it is necessary to recognize the complexity of the relations under study, in connection with which it is possible to single out the essential features inherent in investment relations.

Consider signs of investment relations constituting the subject of investment law .

1. Investment activity, which is the subject of law, is characterized by independence. It is conditionally possible to single out the property and organizational independence of the investor. Property independence is determined by the fact that the investor has a separate property as an economic base for investment activities. The amount of property independence depends on the legal title on the basis of which this property belongs to the investor. The greatest autonomy of the owner of the property. Enterprises operating on the right of economic management also have significant property independence, but already limited by law and an agreement with the owner-investor. And finally, ownership of property on the basis of the right of operational management gives the least scope for the implementation of investment relations. Organizational independence is the ability to make independent decisions in the process of investment activities, starting from making a decision to engage in such activities, choosing the type and legal form of investment.

2. Investment activity involves risk. This feature confirms the homogeneity of investment relations and entrepreneurship in the broadest sense of the term. Entrepreneurial risk is a powerful incentive for successful work; loss reduction can be achieved by concluding a business risk insurance contract, i.e. the risk of losses from business activities due to breach of obligations by counterparties or changes in the conditions of this activity due to circumstances beyond the control of the entrepreneur, including the risk of not receiving expected income (portfolio investment). In this regard, it is quite understandable that such a purely market institution as the institution of insolvency (bankruptcy) is reborn in our country only with the development of the market.

3. Investment activity is aimed at systematic profit. This is the main goal of the investor, giving his activity a commercial character, which is not lost even if the result was not a profit, but a loss. At the same time, if making a profit as a goal is not set initially, the activity cannot be called investment, it is not of a commercial nature.

It is impossible not to pay attention to such a qualifying sign of investment activity as a systematic approach to making profit. Unfortunately, clear quantitative criteria for systematicity have not yet been developed by law. It is proposed to fill the legislative gap by including additional qualifying features in the definition of investment activity, such as the share of profit from this activity in the total income of the investor, materiality and form of profit, etc.

According to the definition, profit is derived by investors from the placement of property, the sale of goods, the performance of work or the provision of services. This feature seems to be poorly worded. The fact is that investment activity is multifaceted and its directions cannot be represented by a closed list. Why, for example, is it necessary to talk only about the right to use in relation to property? And if the subject makes a profit in the process of exercising the right to dispose of property (for example, renting it out)? And if the investor - the patent owner systematically makes a profit, giving other persons the right to use the result of his intellectual activity, concluding license agreements? These cases do not fit into the legislative list. Apparently, it did not make sense to enumerate the possible areas of investment activity in the law, since they are determined primarily by the market.

4. Investment activities are carried out by persons both registered in this capacity in the manner prescribed by law, and in some cases without registration (for example, the purchase valuable papers on the stock market). However, the activity of investors registered in the prescribed manner is a formal sign, that is, a sign that legalizes investment activity, giving it a legal status. Its absence does not lead to a loss in the quality of investment activity, however, it takes it beyond the scope of state guarantees and benefits. In contrast to the analyzed formal feature, the previously considered features of investment activity are essential (revealing its essence), and only their combination makes it possible to qualify a person's activity as investment.

Investment relations, in turn, are closely related to others that do not have the immediate goal of making a profit. In particular, such relations develop when carrying out activities of an organizational and property nature to create and terminate the activities of a joint venture with foreign investors or wholly owned by them, obtaining licenses, certificates and, in a number of other cases, conducting an environmental review (for example, developing natural resources, bowels). Such economic activity is non-commercial in nature, but creates the basis, and often is a necessary condition, a prerequisite for future investment (entrepreneurial) activities. That is why the relations that arise in these cases are covered by economic and legal regulation and are included in the subject of investment law.

Creates conditions for investment law and a number of activities non-profit organizations such as institutions, associations and others; activities of commodity and stock exchanges, the main purpose of which is the formation of an appropriate investment market, is also regulated by the rules of investment law, and the relations that develop during the implementation of this activity are included in the subject of this sub-sector.

And finally, the state, in order to realize the public interests of society, influences the entities engaged in investment activities, regulating this activity. different ways and using various forms. These relations, arising in the process of state investment regulation, form the third group from the composition of the subject of investment law.

§ 2. Method of investment law

Under the method of legal regulation applied in investment law, is understood as a set of techniques and ways of influencing relations regulated by this sub-sector.

As a rule, each industry (sub-sector) involves only specific legal remedies impact on certain types of social relations. However, in a number of cases, branches of law regulate not only social relations that are typical for them, but also relations that are somehow connected with them. Then the method of legal regulation includes legal means that are characteristic not only for this industry (sub-sector), but also for other branches of law. In general theoretical terms, the method of legal regulation of social relations is determined taking into account the following components:

- the procedure for establishing rights and legal obligations;

- the degree of certainty of the rights granted and the autonomy of the actions of their subjects;

- selection of legal facts that entail legal relations;

- the nature of the legal status of the parties in legal relations in which the norms are implemented, as well as the distribution of rights and obligations between the subjects;

- ways and means of ensuring subjective rights.

Based on the specifics of the subject of investment law, the legislator in some cases provides for the establishment of rights and obligations by virtue of the concluded agreement, in other cases - in connection with the act of applying the law (order of the antimonopoly authority), in the third case, the rights and obligations directly follow from the law (duty state registration). The norms of investment law may provide an opportunity to more or less independently decide the issue of the scope of rights and obligations (dispositive norms), may be advisory in nature, or may exhaustively determine the scope of a subjective right or obligation (mandatory norms). The subjects of investment legal relations may be in an equal or subordinate position (horizontal relations between investors and vertical relations between investors and the state are not identical). The protection of established rights and the application of sanctions in case of failure to fulfill obligations can be carried out by various means - civil - legal, administrative, financial, criminal and in various ways - administrative, judicial. Thus, the relationship of freedom in the implementation of private interests with state power influence where it is dictated by public interests, as well as taking into account the recommendations of the competent authorities, are the main characteristics of the method of legal regulation of investment law.

§ 3. Principles of investment law

Principles of investment law- these are its fundamental principles, penetrating the entire array of legal norms.

The main principles of investment law can be named as follows.

The principle of freedom of investment activity received its consolidation in Articles 8, 34 of the Constitution of the Russian Federation: "Everyone has the right to free use of his abilities and property for entrepreneurial and other economic activities not prohibited by law."

This principle has been developed in the Civil Code of the Russian Federation (CC RF) and other legislative acts. It means the right of an investor to invest his property in any area of business, in any of the forms prescribed by law, using any (not withdrawn from circulation) types of property, etc. This principle is also confirmed by the establishment of common legal personality for the majority of legal entities. However, this freedom is not unlimited. federal laws it may be limited in the interests of society to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state.

The principle of protecting investors from the activities of authorities to forcibly seize this property.

The principle of free use of investments, forms or rights of claim on property invested in the course of investment.

The principle of state guarantees to ensure financial return, compensation in relation to investors' funds invested in the course of investments, agreements (on production sharing).

The principle of state regulation of investment activity. Such regulation of the economy is carried out in any state. Its various forms and methods are determined by political conditions, the level of economic and social development, historical traditions, national characteristics and other factors. Russia's transition to market economic conditions required a revision of the system of state regulation of the economy, the replacement of administrative measures with economic ones. Many mistakes were made along the way, not all of which have been corrected today. The most important thing that should be achieved in the process of state regulation of investment activity is maintaining a balance between the private interests of entrepreneurs and the public interests of the state and society as a whole.

The principle of legality is industry-wide, and its implementation is the basis for building a state of law. As for legality in investment activity, it is necessary to pay attention to two aspects. Firstly, the investment activity itself must be carried out in strict compliance with the requirements of the law. Secondly, and no less important, the state must ensure the legality of legal acts, the legality of the activities of state authorities and local governments that regulate investment activities. Some measures to ensure the rule of law are provided for by the current legislation.

Thus, Article 13 of the Civil Code of the Russian Federation determines the conditions and procedure for invalidating an act of a state body and a local self-government body. In the field of normative regulation, the introduction of the rule of registration of acts contributes to the strengthening of the rule of law. federal bodies executive power in the Ministry of Justice of the Russian Federation.

§ 4. Functions of investment law

Functions of law- these are the main directions of legal influence on social relations, determined by the essence and social purpose of law in the life of society.

In accordance with this, the following features inherent in the functions of investment law can be noted:

– the functions of investment law are determined by the purpose of administrative law in society;

- functions express the most essential, main features of law and are aimed at the implementation of the tasks facing investment law at this stage of development of society;

- the functions of investment law represent the directions of its active action, streamlining the social relations that make up its subject.

Classification of the functions of law and their characteristics. To a certain extent, two groups of criteria can be distinguished that underlie the differentiation of the functions of investment law: 1) external, according to which the so-called social functions law (in this case, investment law has, for example, an educational function), and 2) internal. The latter stem from the very nature of law, the ways in which it influences people's behavior, and the features of the forms of implementation. In this case, the regulatory and protective functions of investment law are distinguished.

Regulatory and protective functions are the functions of law that determine the need for its existence as a social institution of society.

Regulatory function of investment law can be defined as a direction of legal influence due to social purpose, expressed in the establishment of positive rules of conduct, the granting of subjective rights and the imposition of legal obligations on the subjects of investment law in order to consolidate and promote the development of relations that are in the interests of society, the state and citizens.

The most characteristic ways (methods) of implementing the regulatory function of investment law are:

– determination of the status of investors through the rules of law;

– establishment of the legal procedure for investment placement, including the procedure for the creation and licensing of joint ventures;

– determination of legal facts related to the emergence, change and termination of investment legal relations, including investment contracts and agreements;

- determination of the optimal type of legal regulation (generally permissive, permissive) in relation to specific social relations for the admission of foreign investors to the Russian economy;

– determination of the optimal regime for ensuring the rights and legitimate interests of foreign investors in Russia by providing the necessary guarantees and benefits.

Protective function of investment law- this is a direction of legal influence due to social purpose, aimed at protecting the generally significant, most important relations for society, their inviolability and ousting relations that are harmful to this society.

The specificity of the protective function is as follows. Firstly, it characterizes law as a special way of influencing people's behavior, expressed in influencing their will by the threat of sanctions, the establishment of prohibitions and the implementation of legal responsibility.

Secondly, it serves as an informer for the subjects of investment relations about what social values are taken under protection by the state through legal regulations.

Thirdly, it is an indicator of the political and cultural level of society, the humanitarian principles contained in investment law.

Character traits protective functions of investment law can be traced more clearly when compared with the law enforcement activities of the state. The general purpose of the latter is to ensure the steady fulfillment by the subjects of law of the requirements of the law, that is, to ensure the regime of legality. This is achieved by identifying offenses, investigating them, and bringing the perpetrators to justice. However, investment law has at its disposal only a limited set of law enforcement measures (for example, bankruptcy measures for a joint venture, revocation of a license for the right to develop a deposit under a production sharing agreement, etc.).

Thus, the protective function of investment law is characterized by the complexity of law enforcement norms, including the norms of civil, business, financial, administrative, criminal, civil procedural, criminal procedural, arbitration procedural branches of law, as well as law enforcement activities of the state as a material guarantee of compliance with the requirements of investment law. In addition, the protective function is aimed at protecting investment relations, and law enforcement is aimed at protecting investment law itself.

Optionally, other functions of administrative law can be distinguished:

- the function of control, i.e. ensuring state control and supervision in the field of managerial activity of the state in the field of investment law relations;

- educational, i.e. instilling socially useful qualities and ensuring the possible rights and interests of investors using existing practice and customs of labor turnover.

§ 5. International investment law as a scientific discipline

The rapid development of legal science in the second half of the twentieth century led to the emergence of new industries in common system rights. In the course of the development of social relations, sub-sectors emerged from the latter, institutions as normative blocks for regulating relations in specific areas of interstate cooperation. The system of investment law has an objective character and should not be identified with the system of science of investment law. The system of science of investment law as a branch of law can, of course, come into contact with the system of investment law as it is known, but in principle it cannot and should not coincide with it and dissolve in it. This is explained, in particular, by the fact that any science, by virtue of its inherent function of revealing the essence of the subject of research, always has its own logic and, accordingly, its own logical structure. It can also be argued that the system of law of any country is not identical to the system of its legislation.

The system of investment law as a scientific discipline should also not be identified with the system training courses in this discipline, since in them the author builds a system and structure of presentation of the material, paying attention primarily to the definition of key concepts, other educational and methodological goals, and features of the curriculum.

As is known, the theoretical and cognitive function of science includes: a) the accumulation of facts related to the sphere of legal reality, as well as legal and other documents that have legal significance and contain a legal element; b) disclosure of laws governing the functioning and development of law, its principles, branches, institutions and norms. The applied function of the science of law includes the development of recommendations for improving current regulations law, their systematization, codification, etc.

Investment law as a science is a branch of special knowledge that studies relevant legislation and legal norms for practical purposes by analyzing the text investment agreements bilateral and multilateral nature, laws and other regulations, international arbitration and judicial practice etc. As a result of such an analytical study of legal material, the legal essence of public relations in the field of foreign investment is revealed. The appeal to investment relations from the point of view of a special science is explained by the fact that investment law is an extremely complex branch of law. This is due to the complex, multi-level nature of the legal regulation of investments. Firstly, legal basis investment activity is a large array of norms of national laws and by-laws of both public and private law nature, as well as principles and norms of both public and private law. Secondly, legal support foreign investment is carried out at the international legal and national legal levels.

In addition, investment activity on the territory of a foreign state is carried out by creating various organizational and legal forms of enterprises: mixed and joint, purely foreign enterprises, their branches. As for the transnational corporations investing huge capitals in different countries, then their activities create many international legal problems that require special scientific research.

For example, there are still no common approaches to the legal nature of transnational companies - TNCs. In the specialized literature, a corporation is recognized as a company that carries out the bulk of its operations outside the country where it is registered. But from the point of view of the theory and practice of international law, TNCs do not necessarily spend the bulk of their financial transactions in other countries. Therefore, the legal regulation of foreign investment with the participation of TNCs is complicated by the extreme complexity of its legal structure.

In a word, various legal aspects of the regulation of foreign investment activity require new scientific developments in order to eliminate those problems that impede the free movement of capital. And research in this area cannot lead to positive results without the use of special scientific methods and approaches that are unique to international investment law as a science.

Disclosing the place of the science of investment law in the system of law as a whole is impossible without an analytical study of the main works devoted to various aspects of the legal regulation of foreign investment, since they contain many valuable practical and scientific and methodological developments in this area. A retrospective look at the work of foreign and domestic authors helps to better understand contemporary issues ensuring an appropriate legal regime for investments.

In foreign specialized literature, the first works on the legal aspects of investments began to be published in the mid-1950s. For example, in the book of the American author S. Rubin, the legal and economic aspects of private foreign investment were considered.

The first notable work specifically devoted to the legal problems of foreign investment in developing countries, became the book of the Nigerian lawyer E. Nougugu. The author criticized foreign companies for establishing comprehensive control over the recipient country in the course of investment activities. He hardly distinguishes between direct and portfolio investment, based only on the degree of control over enterprises. In the book of another lawyer - V. Beilkjiam, the legal aspects of foreign investment in the European Economic Community "Common Market" are considered.

The work of the well-known English lawyer - international specialist J. Schwarzenberger "Foreign Investments and International Law", published in London in 1969, has been a reference book for everyone who is interested in this problem for many years. Both in title and in content, it became the first special fundamental monograph on international investment law. On the basis of meaningful material on the formation of international investment relations, this scientist, one of the leading figures of Western general international law, developed the theory and practice of international legal regulation of foreign investment.

The fundamental monograph "International Law of Foreign Investments", written by the professor of the National University of Singapore M. Sornaraja, became a new milestone in the development of this science. The work opens with a chapter on the history of the development of international investment law. Further, the author reveals the classical theory, according to which foreign investment is an absolutely beneficial factor for the host state, since the influx of foreign capital is accompanied by high technology, which stimulates local capital to increase labor productivity, master new management, etc. As you know, another, diametrically opposite First, the so-called dependency theory argues that the acceptance of foreign investment means the global dominance of transnational corporations in developing countries.

In the theory and practice of investment law, the doctrine of the "third way" (the middle path) is sometimes used, according to which, in accordance with economic sovereignty, the host state must establish full administrative control. The right of the state to unlimited control over foreign investment, according to the supporters of this theory, is determined by the sovereignty of the state. Such a formulation of the question in itself closes the door to foreign investors.

Professor M. Sornaraja in the following chapters of his book examines in detail the problems of international protection of foreign investments, the role of bilateral and multilateral treaties, the importance of the inviolability of foreign private property, etc., on which we will rely in the course of further presentation of our point of view on legal investment problems.

In the science of investment law, one of the central places is occupied by the issues of guarantees against the so-called political (non-commercial) risks. This important topic is the focus of the fundamental book by American authors Paul Komeks and Stephen Kinsella “Protection of Foreign Investments by International Law: Legal Aspects of Political Risks”, published in New York in 1997. Political risk, according to the authors, is, in principle, the possibility of a foreign investor being deprived of all or part of his property in the host state. Further, the authors theoretically substantiate various types of forced seizure of the investor's property, namely in the case of expropriation, nationalization, confiscation. They classify political risk as currency risk, risk of political violence, risk of break contract, etc.

Undoubtedly, the work under consideration significantly enriched the theory of investment law, proposing clear criteria for determining the various norms and principles aimed at protecting foreign investment.

A notable contribution to the development of foreign literature on investment law has been the recent publication of Professor William E. Butler's impressive work Foreign Investment Law in the CIS. The book consists of two interconnected parts: the analytical material from 22 chapters of the first part of the book is supplemented by 135 legal investment acts of all 12 CIS countries in the author's translation into English - this is the second part.

As for domestic science, research in this area until the 90s of the twentieth century was carried out poorly due to the special socio-economic situation in the country and concerned only the legal problems of investing in the countries of the so-called third world. The first works in this then specific field of legal science belonged to the well-known specialist N. N. Voznesenskaya, who today remains a recognized scholar on the legal problems of attracting foreign investment. The author, considering in his book “Foreign Investments and Mixed Enterprises in African Countries” the legal regime of foreign capital in the independent countries of this continent, specifically studies the problems of national law as a regulator of investment relations, the legal aspects of classifying investments, the principles of admitting foreign capital and various legal regimes, legal nature investment agreement, investment guarantees and arbitration resolution of investment disputes. N. N. Voznesenskaya devotes the second half of the book to the legal status of mixed enterprises. The relations arising in connection with foreign investments are so complex and diverse, the author notes, that they go far beyond the limits of regulation, the principles of which are contained in investment codes, although they remain within the framework of national law. Of paramount importance in determining the regime of a foreign investor is tax law, as well as currency and customs legislation, which is much broader than investment codes: the codes do not eliminate the effect of tax and currency legislation, but only determine the conditions for their application.

The words of N. N. Voznesenskaya that the complex, multifaceted problem of investment requires the development of many theoretical issues still sound quite relevant today. The author of the book asks the question: are all receipts from one country to another investment? A clear classification of such receipts would make it possible to distinguish from all the funds received from outside those that entail the provision of large economic benefits to investors.

Of course, from the standpoint of today, one cannot fully agree with some of the statements of N. N. Voznesenskaya, in particular with the fact that “the regulation of foreign investment is the sphere of exclusive national legislation”, which “cannot ignore the real correlation of opposing political and economic strength."

N. N. Voznesenskaya considers the problems of legal regulation of investments in another book. As you know, the creation of mixed, or joint, enterprises is one of the most common forms of attracting foreign investment. A mixed enterprise, the author notes, serves both as a form of using foreign capital, and as a form of organization and implementation of specific economic activities, where the interests of national participants and a foreign investor are directly in contact. This monograph has not only source study, but also practical value (for example, a chapter that explores the problems of legal regulation of mixed enterprises in Western countries).

The first domestic study specifically devoted to international legal and national problems of investment regulation in general was the monograph “Investment Law” by A. G. Bogatyrev, now a well-known scientist, Doctor of Law, Professor, Leading Specialist of the Center for International Law of the Institute of State and Law of the Russian Academy of Sciences. “Legal regulation of investment relations at the national and international levels,” the scientist noted, “leads to the formation of regulatory systems, that is, the formation of investment law, respectively, national and international.”

In the first chapter of his research, the author examines the theoretical issues of investment, investment policy and investment law. Modern investments are impossible without a market economy at the national and global levels, however, the market and the investment process cannot function and develop without certain political, economic and legal conditions in the country. From a legal point of view, foreign investment is foreign private and state property and its respective status in international and national aspects. These and other provisions of the book, expressed at the dawn of a market economy, have long become a guideline in the creation of a new scientific concept of the legal regulation of foreign investment in Russia.

Professor Bogatyrev for the first time brought up for a wide scientific and practical discussion, for example, the question of the role of bilateral investment treaties in this area - agreements on the promotion and protection of foreign investment and agreements on the avoidance of double taxation - and concluded that the main goal of these international bilateral treaties is to in order to ensure, through legal means, in conditions of a socio-economic and political crisis, the relative stability of reproduction and freedom of movement of capital within the world economic system, and especially to ensure the inflow of foreign private capital to other countries, providing it with legal guarantees from the so-called political (or non-commercial) ) risks (non-business risks). An integral element in the system of the legal regime of foreign investment are, in his opinion, multilateral investment treaties.

At the same time, the scientist does not pretend to provide an exhaustive coverage of this multifaceted concept, the scientific development of which, in his opinion, is still at the very beginning. Indeed, certain provisions and conclusions made in the monograph are of a debatable and staging nature, which corresponded to the then level of development of these problems in the legal literature. This, in our opinion, explains a certain understatement in the judgments concerning some problems of foreign investment regulation. For example, highlighting in a special paragraph of the book the system of investment law as a branch of law and a branch of science, he presents to the reader a diagram of the system of investment law, but at the same time he is silent about what kind of investment law he is talking about: international or domestic. Judging by the idea and content of the book, this preliminary, as the author stipulates, scheme of the investment law system was also developed for international investment law, since the idea of the formation of domestic and international investment law runs through the entire book.

a common part The preliminary scheme of the investment law science system proposed by A. G. Bogatyrev includes the following provisions:

– subject and system of investment law;

– history of investment law and its science;

– the concept of investment, investment process and investment law;

– subjects of investment law;

– legal regulation of private and mixed investment;

– legal regulation of public investment;

– investment agreement;

– regulation of investment activity financing;

– responsibility of participants in investment activities;

– investment guarantees;

- resolution of investment disputes.

This system The science of investment law is quite thoughtful and is based on the traditional concept of separating a branch of law in the science of international law. It covers the basic concepts, subject, directions, institutions in the field of legal regulation of foreign investment.

In subsequent works, A. G. Bogatyrev continued to develop a scientific concept for the formation and development of international investment law.

One of the fundamental scientific works in this area was the publication by the Institute of State and Law of the Russian Academy of Sciences of the collection "Legal Regulation of Foreign Investments in Russia", dedicated to various legal aspects of ensuring guarantees of foreign capital in our country. In his introductory article, Academician BN Topornin highlighted the main problems of attracting foreign investment in the Russian economy. “Foreign investment is not a tribute to a rapidly passing fashion and not the “intrigues” of the West, but the realization of our own interests, part of our system of economic ties and relations; formation of legislation on foreign investment – component the process of formation of the rule of law in Russia,” he said. Further, B. N. Topornin substantiates the allocation of special investment legislation, which establishes special rules in the field of foreign investment regulation. One of its features, according to the scientist, is that it must be specific and exhaustive. In addition, special emphasis is placed on the international legal side of the regulation of foreign investment, which is caused by the need to follow paragraph 4 of Art. 15 of the Constitution of the Russian Federation. The forms and methods of resolving international investment disputes considered in the article also deserve attention.

The article by A. G. Svetlanov is devoted to assessing the role of legal policy in the field of foreign investment. The problems of the stability of legal regulation are considered in the same collection by M. M. Boguslavsky. The article by E. V. Kabatova is devoted to contractual forms of attracting foreign investment. The problems of insurance of non-commercial risks of foreign investors are covered by N. G. Doronina and N. G. Semilyutina.

International legal aspects of regulation of foreign investments are specially considered by G. M. Velyaminov. Analyzing bilateral agreements on the mutual encouragement and protection of foreign investment, the scientist comes to the conclusion that when improving Russian investment legislation, it is advisable in the legal and technical aspect to more fully use the formulas and concepts used in bilateral investment agreements that have undergone a solid run-in. In the same collection you can find articles by I. A. Ikonitskaya, V. I. Sloma and O. V. Serdyuk, I. S. Zykin, E. A. Vinogradov and other publications that discuss various aspects of the legal regime of foreign investment.

In general, the merit of this academic publication in the field of legal development of the problems of attracting foreign capital to the Russian economy lies in the fact that it was the first comprehensive scientific study devoted to the problem under consideration. Despite the fact that the collection is based on the old investment legislation, even today it has not lost its significance not only from a scientific, but also to some extent from a practical point of view.

A notable contribution to the science of international investment law was the monograph by M. M. Boguslavsky “Foreign Investments: Legal Regulation”. Particularly noteworthy is that the paper deals with both theoretical and practical issues of legal regulation of foreign investment in Russia and the CIS as a whole. Speaking about the reasons for the formation of special investment legislation in Russia, the author notes the need for such legislation, primarily in countries with a diversified economy that seek to create a preferential regime for foreign investment. This is due to the need to create special conditions to actively attract foreign capital in domestic economy. Of particular interest in the book of M. M. Boguslavsky is that it is based on a broad, albeit somewhat outdated normative material CIS countries.

Today it is difficult to imagine Russian investment law without one of the leading experts in this scientific field - Professor N. G. Doronina. Her first monograph "Some Organizational and Legal Aspects of Foreign Investments in Developing Countries", devoted to the legal problems of attracting foreign capital, was published in the late 70s.

The next book, written by her in co-authorship, was devoted to the legal regulation of foreign investment in the conditions new Russia and abroad. The authors seriously criticized the Law of July 4, 1991 in force on foreign investments in the RSFSR for its inconsistency with generally accepted world practice. Bilateral agreements on the promotion and mutual protection of investments contain a slightly different understanding of the category of "investment", the authors note, than that given in the Russian legislation on foreign investment. In doing so, they refer to the agreement with France, which also speaks of loans related to capital investments. In accordance with international investment law, scientists consider various types of rights to be the same investments, including copyrights, rights to technology, etc., and suggest that Russian legislation single out certain types of loans, as well as the transfer of rights through a system for admitting foreign investment or a system for registering certain types of agreements as investment agreements.

A very interesting article by N. G. Doronina on the unification of law in the conditions international integration, whose "locomotive" is foreign investment. Commentary on the Law on Foreign Investments, published by the same author in the form of a small book, analyzes the new Russian legal act, comparing it with the requirements of international investment standards. In particular, N. G. Doronina condemns the conditions for granting benefits to foreign investors in accordance with Article 4 of the Law, since such a practice contradicts the concept of competition in the legal regulation of foreign investment, which is laid down in the IBRD leadership.

Of considerable interest from the point of view of the development of the science of international investment law are the articles by L. I. Volova and N. G. Doronina, published in the Russian Yearbook of International Law (St. Petersburg, 2001). Both of them are devoted to various international legal aspects of foreign investment regulation. The first one - "The implementation by states of international legal capacity in international investment relations through multilateral international legal regulation" - explores the problems of the implementation by states of international legal capacity in international investment relations through multilateral cooperation; in the second - "The influence of the norms of international treaties on the Russian legislation on investments" - the issues of interaction and mutual influence of the norms of international law and Russian investment legislation. The authors conclude that the regulation of investments in Russian legislation is at odds with the regulatory standards enshrined in international treaties.

A landmark event in the science of investment law was the publication of a new monograph by N. G. Doronina and N. G. Semilyutina, consisting of six chapters, divided into appropriate subsections. The book is deeply structured and is a comprehensive study of the key problems of the legal regulation of investments in Russia. It is interesting for its non-standard approach to the study of the problem, the presentation of the new concept of the authors. Scientists, in particular, believe that the change in approaches to the regulation of a foreign element in investment relations is due to the fact that when making investments, the issue of the nationality of the investor and recipient fades into the background. The main problem is the legal regime for the activities of investors and recipients of capital. First of all, in their opinion, the definition of a general legal regime for domestic investors is of fundamental importance, that is, this is what is primary when designating a general legal standard for investments as such, regardless of whether it is of domestic or foreign origin.

It is also necessary to note the monograph by D. K. Labin “International Legal Regulation of Foreign Investments”, which we have already mentioned. In it, on the basis of international legal acts, general concepts international legal regulation of investment relations, reveals international legal mechanisms for regulating foreign investment in present stage. Here you can also find the full texts of some international legal documents.

The monograph by M. S. Evteeva is devoted to international legal methods of regulating foreign investment on a bilateral basis. The author analyzes bilateral international investment agreements, to which Russia is a party, considers the world experience in concluding such agreements, as well as international practice in providing legal guarantees for foreign investment.

The monograph "Foreign Investments in Russia and International Law" examines the essence of legal relations in the field of foreign investments, the problems of the relationship between international and national legal regulation of foreign investments, as well as the specifics of the implementation of international legal norms in the investment legislation of Russia and other problems.

I would like to complete a retrospective look at the history of the study of the problems we are studying by mentioning the monograph by V.V. Silkin, in which, on the basis of the latest legislation on foreign investment in the Russian Federation, theoretical aspects investment law, the procedure for establishing and registering commercial organizations with foreign investment, analyzes in detail the guarantees of foreign investment in domestic legislation, issues of restricting the admission of foreign direct investment in certain industries, etc.

Summing up the consideration of the main works devoted to various aspects of the legal regulation of foreign investment, we note the absence of a comprehensive work on international investment law, the need for which, due to the special significance of this problem in the context of the globalization of the world economy, is quite obvious.

§ 6. Investment law as an academic discipline

Investment law is not only a branch of law and a scientific discipline, but also an academic discipline designed to be the subject of a special classroom study for students studying at higher educational institutions majoring in jurisprudence.

The objective of the discipline is to reveal the legal nature of such concepts as "investment", "investor", "investment policy and investment relations", which have received a new legal content in the context of the globalization of the world economy, as well as to study international experience in the legal regulation of foreign investment.

The educational discipline of investment law, analyzing the complex of legal acts regulating investments, reveals and studies the features of state guarantees of foreign investments, forms and methods of regulating international investment disputes.

The special course as a whole should cover a wide range of problems of legal regulation of national and foreign investments. In our opinion, a special place should be given to the analysis of Russian investment legislation. It is advisable to study international bilateral treaties on the promotion and protection of capital investments, as well as concession agreements and production sharing agreements. Understanding and clarifying the problems of international legal regulation of foreign investment require a more detailed and comprehensive scientific and methodological approach.

It seems that the structure and content of this book, when used in the educational process as a whole, meets modern requirements, reflecting the main provisions of the theory and practice of investment law.

Introduction

One of critical issues reform and modernization Russian economy today is to attract foreign investment. Russia needs foreign capital capable of bringing in new technologies and modern management methods, as well as facilitating the development of domestic investment.

Currently, the social and economic changes taking place in Russia have significantly transformed the economic turnover and required the development of a fundamentally new legislation adequate to the economic needs, regulating foreign investment activities in Russia in detail.

Domestic scientists showed insufficient interest in studying the problems of legal regulation of investment activities in the territory of the Russian Federation. Few domestic lawyers have studied directly individual aspects of investment law, including D. Bessarabov, N. G. Doronina, N. G. Semilyutin, V. V. Starzhenetsky, E. V. Talapin, O. V. Khmyz, S. S. Shcherbinin and some others. Their research made it possible to define the concept of foreign investment in general, as well as the basis of the legal status of commercial organizations with foreign investment. The results of these studies are reflected in the current legislation.

However, these studies were mainly devoted to solving various problems of an applied nature. They did not consider issues that have a direct impact on the conceptual approaches to resolving the problems of the legal status of commercial organizations with foreign investment, their activities in the territory of the Russian Federation.

The relevance and insufficiency of the development of the noted problems determined the need for the appearance of this manual on investment law.

Conclusions and recommendations can be applied in the preparation of educational and methodological manuals on civil and business law, in the educational process when giving lectures and conducting seminars in the disciplines of the civil law cycle, and also serve as a basis for familiarizing specialists and representatives of business circles in Russia and foreign countries with legal status commercial organization with foreign investments in Russia.

Chapter 1
Investment law in the system of law

§ 1. The concept and subject of investment law

The transition to a market economy in Russia is inextricably linked with the development of investment as a professionally carried out economic activity aimed at making a profit. In the conditions of intensively developing investment activity, including with foreign participation, a new complex branch has been formed in the system of Russian law - investment law.

The concept of "investment law" can be considered in four main meanings.

Investment law as a branch of law is a set of legal norms governing public relations regarding the attraction, use and control of investments and ongoing investment activities, as well as relations related to the responsibility of investors for actions contrary to the law.

Investment law as a system of legislation- this is a set of legal norms contained in the sources of law (normative legal acts, business customs) and regulating the procedure for carrying out investment activities. The study of investment legislation also involves the analysis of judicial and arbitration practice in order to achieve uniformity in the understanding and application of the norms contained in the sources of law.

Investment law as a scientific discipline, i.e., a system of knowledge, a set of ideas of scientists about a given industry. The science of investment law learns the origins of its origin, stages of formation and predicts, based on the amount of accumulated information, the direction of development.

Investment law as an academic discipline- a system of generalized information about investment law as a branch, its legislation and practice of application, as well as about science.

The system of the subject of investment law includes:

- public relations related to the placement on the territory of the Russian Federation of financial resources invested in the economy, other property (both movable and immovable, not withdrawn from civil circulation), including property and personal non-property rights (for example, copyright, patent law). The group of relations under consideration also includes agreements on joint activities, including relations on the formation of legal entities created on the basis of equity or 100% participation of foreign investors, as well as relations on the creation of branches and representative offices of foreign legal entities on the territory of the Russian Federation;

– public relations on control over the admission, creation and activity on the territory of the Russian Federation of foreign investors and legal entities formed by them.

The presented group of relations includes state registration of enterprises with foreign participation, licensing of certain types of activities of joint ventures, certification and standardization of the results of their entrepreneurial activities. This group of relations is explained by restrictions on the entrepreneurial activities of foreign investors in certain areas of the economy: communications, telecommunications, energy, transport, etc. - in order to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of Russian citizens, to ensure the defense of the country and the security of the state and the need for this part of state control over the proper implementation of Russian legislation;

- public relations associated with the imposition of liability for investment (entrepreneurial) activities that are contrary to the law.

Consider signs of investment relations constituting the subject of investment law .

4. Investment activities are carried out by persons registered in this capacity in accordance with the procedure established by law, and in some cases without registration (for example, the purchase of securities on the stock market). However, the activity of investors registered in the prescribed manner is a formal sign, that is, a sign that legalizes investment activity, giving it a legal status. Its absence does not lead to a loss in the quality of investment activity, however, it takes it beyond the scope of state guarantees and benefits. In contrast to the analyzed formal feature, the previously considered features of investment activity are essential (revealing its essence), and only their combination makes it possible to qualify a person's activity as investment.

Investment relations, in turn, are closely related to others that do not have the immediate goal of making a profit. In particular, such relations develop when carrying out activities of an organizational and property nature to create and terminate the activities of a joint venture with foreign investors or wholly owned by them, obtaining licenses, certificates and, in a number of other cases, conducting an environmental review (for example, the development of natural resources, subsoil) . Such economic activity is non-commercial in nature, but creates the basis, and often is a necessary condition, a prerequisite for future investment (entrepreneurial) activities. That is why the relations that arise in these cases are covered by economic and legal regulation and are included in the subject of investment law.

Creates conditions for investment law and the activities of a number of non-profit organizations, such as institutions, associations and others; the activity of commodity and stock exchanges, the main purpose of which is the formation of an appropriate investment market, is also regulated by the norms of investment law, and the relations that develop during the implementation of this activity are included in the subject of this sub-sector.

And finally, the state, in order to realize the public interests of society, influences the entities engaged in investment activities, regulating this activity in various ways and using various forms. These relations, arising in the process of state investment regulation, form the third group from the composition of the subject of investment law.

§ 2. Method of investment law

Under the method of legal regulation applied in investment law, is understood as a set of techniques and ways of influencing relations regulated by this sub-sector.

As a rule, each industry (sub-sector) involves only specific legal means of influencing a certain type of social relations. However, in a number of cases, branches of law regulate not only social relations that are typical for them, but also relations that are somehow connected with them. Then the method of legal regulation includes legal means that are characteristic not only for this industry (sub-sector), but also for other branches of law. In general theoretical terms, the method of legal regulation of social relations is determined taking into account the following components:

- the procedure for establishing rights and legal obligations;

- the degree of certainty of the rights granted and the autonomy of the actions of their subjects;

- selection of legal facts that entail legal relations;

- the nature of the legal status of the parties in legal relations in which the norms are implemented, as well as the distribution of rights and obligations between the subjects;

- ways and means of ensuring subjective rights.

Based on the specifics of the subject of investment law, the legislator in some cases provides for the establishment of rights and obligations by virtue of the concluded agreement, in other cases - in connection with the act of applying the law (order of the antimonopoly body), in the third case, the rights and obligations directly follow from the law (the obligation of the state registration). The norms of investment law may provide an opportunity to more or less independently decide the issue of the scope of rights and obligations (dispositive norms), may be advisory in nature, or may exhaustively determine the scope of a subjective right or obligation (mandatory norms). The subjects of investment legal relations may be in an equal or subordinate position (horizontal relations between investors and vertical relations between investors and the state are not identical). The protection of established rights and the application of sanctions in case of failure to fulfill obligations can be carried out by various means - civil - legal, administrative, financial, criminal and in various ways - administrative, judicial. Thus, the relationship of freedom in the implementation of private interests with state power influence where it is dictated by public interests, as well as taking into account the recommendations of the competent authorities, are the main characteristics of the method of legal regulation of investment law.

§ 3. Principles of investment law

Principles of investment law- these are its fundamental principles, penetrating the entire array of legal norms.

The main principles of investment law can be named as follows.

This principle has been developed in the Civil Code of the Russian Federation (CC RF) and other legislative acts. It means the right of an investor to invest his property in any area of business, in any of the forms prescribed by law, using any (not withdrawn from circulation) types of property, etc. This principle is also confirmed by the establishment of a common legal personality for most legal entities. However, this freedom is not unlimited. It may be limited by federal laws in the interests of society to the extent necessary to protect the foundations of the constitutional order, morality, health, rights and legitimate interests of others, to ensure the defense of the country and the security of the state.

The principle of protecting investors from the activities of authorities to forcibly seize this property.

The principle of free use of investments, forms or rights of claim on property invested in the course of investment.

The principle of state guarantees to ensure financial return, compensation in relation to investors' funds invested in the course of investments, agreements (on production sharing).

Thus, Article 13 of the Civil Code of the Russian Federation determines the conditions and procedure for invalidating an act of a state body and a local self-government body. In the field of normative regulation, the introduction of the rule of registration of acts of federal executive bodies in the Ministry of Justice of the Russian Federation contributes to the strengthening of the rule of law.

§ 4. Functions of investment law

Functions of law- these are the main directions of legal influence on social relations, determined by the essence and social purpose of law in the life of society.

In accordance with this, the following features inherent in the functions of investment law can be noted:

– the functions of investment law are determined by the purpose of administrative law in society;

- functions express the most essential, main features of law and are aimed at the implementation of the tasks facing investment law at this stage of development of society;

- the functions of investment law represent the directions of its active action, streamlining the social relations that make up its subject.

Classification of the functions of law and their characteristics. To a certain extent, two groups of criteria can be distinguished that underlie the differentiation of the functions of investment law: 1) external, according to which the so-called social functions of law are distinguished (in this case, investment law is inherent, for example, an educational function), and 2) internal . The latter stem from the very nature of law, the ways in which it influences people's behavior, and the features of the forms of implementation. In this case, the regulatory and protective functions of investment law are distinguished.

Regulatory and protective functions are the functions of law that determine the need for its existence as a social institution of society.

The most characteristic ways (methods) of implementing the regulatory function of investment law are:

– determination of the status of investors through the rules of law;

– establishment of the legal procedure for investment placement, including the procedure for the creation and licensing of joint ventures;

– determination of legal facts related to the emergence, change and termination of investment legal relations, including investment contracts and agreements;

- determination of the optimal type of legal regulation (generally permissive, permissive) in relation to specific social relations for the admission of foreign investors to the Russian economy;

– determination of the optimal regime for ensuring the rights and legitimate interests of foreign investors in Russia by providing the necessary guarantees and benefits.

Protective function of investment law- this is a direction of legal influence due to social purpose, aimed at protecting the generally significant, most important relations for society, their inviolability and ousting relations that are harmful to this society.

Secondly, it serves as an informer for the subjects of investment relations about what social values are taken under protection by the state through legal regulations.

Thirdly, it is an indicator of the political and cultural level of society, the humanitarian principles contained in investment law.

The characteristic features of the protective function of investment law can be traced more clearly when compared with the law enforcement activities of the state. The general purpose of the latter is to ensure the steady fulfillment by the subjects of law of the requirements of the law, that is, to ensure the regime of legality. This is achieved by identifying offenses, investigating them, and bringing the perpetrators to justice. However, investment law has at its disposal only a limited set of law enforcement measures (for example, bankruptcy measures for a joint venture, revocation of a license for the right to develop a deposit under a production sharing agreement, etc.).

Optionally, other functions of administrative law can be distinguished:

- the function of control, i.e. ensuring state control and supervision in the field of managerial activity of the state in the field of investment law relations;

- educational, i.e. instilling socially useful qualities and ensuring the possible rights and interests of investors using existing practice and customs of labor turnover.

From the foregoing, it can be seen that many legal acts and organizations in the field of commercial and financial law, to a greater or lesser extent, also apply to investments. At the same time, the number of norms and institutions directly related to this area has become significant enough to speak of international investment law as an independent sub-branch of international economic law, especially if we take into account the importance of foreign investment in the development of the state's economy.

International investment law- a system of principles and norms governing relations between states regarding investment. The main principle is formulated in the Charter economic rights and State Duties: Each State has the right to “regulate and control foreign investment within its national jurisdiction, in accordance with its laws and regulations and in accordance with its national purposes and priorities. No state should be forced to grant preferential treatment to foreign investment.”

Interstate investment relations are regulated mainly by bilateral agreements. They can be called differently: an agreement on the promotion and mutual protection of investments, an agreement on the promotion and mutual protection of investments, etc. By 1996, more than 900 such agreements were concluded in the world with the participation of 140 states. Russia is a party to more than 40 agreements, 14 of which were signed on behalf of the USSR. Given the widespread use of bilateral investment treaties, the IBRD and IMF published a compendium in 1992 containing sample general provisions such agreements (Guidelines on the Treatment of Foreign Direct Investment).

In the content of all bilateral investment treaties, one can single out a general range of issues: the establishment of a legal regime for foreign investors (as a rule, national treatment); a system of guarantees provided by host states (against nationalization, against prohibition of free export of currency, against non-commercial, i.e. political risks, etc.); the procedure for resolving disputes between a foreign investor and the host state (as a rule, the possibility of arbitration consideration is provided).

Within the framework of the CIS in 1993, a multilateral agreement on cooperation in the field of investment activity was concluded. The regime created by the agreement does not extend to third states (Article 24). The Parties provide each other with national treatment in the totality of investment activities, the Parties have committed to cooperate in the development and implementation of an agreed investment policy; one of the areas of cooperation is the convergence of legislation on investment activities. Provided quite high level protection of investments and not only from nationalization. Investors are entitled to compensation for losses, including lost profits, caused to them as a result of illegal actions government agencies or officials.

On the initiative of the IBRD, in 1988, the Multilateral Investment Guarantee Agency (MIGA) was established on the basis of the 1985 Seoul Convention. The overall goal of the Agency is to encourage foreign investment for production purposes, which is achieved by providing guarantees, including insurance and reinsurance of foreign investment against non-commercial risks (ban on the export of foreign currency, nationalization and other forms of expropriation, war, revolution, domestic unrest, etc.) .

Organizationally, the Agency is connected with the IBRD (its president is the chairman of the Board of Governors - the main body of the MIGA). MIGA members can only be members of the IBRD. The number of MIGA members exceeds 120, including Russia and other CIS countries. Just like in others economic organizations, the number of votes of a member state depends on its share in the authorized capital of MIGA.

Guarantees are provided to private investors, for which the Agency concludes an appropriate contract with a private investor. Upon the occurrence of an insured risk, the Agency pays the prescribed remuneration, after which the claims of the private investor against the host state are transferred to the Agency and the dispute is transformed into an international legal one. Noteworthy is the fact that not two states are involved in this dispute, but one state and an international organization - the Agency. This procedure significantly reduces the likelihood of a negative impact on the resolution of disputes on the part of the states concerned.

In general, international treaties, including the Seoul Convention governing the activities of MIGA, provide a significant international legal guarantee for foreign investment. Thanks to them, the violation by the host state of the investment agreement can become an international offense, entailing the international legal responsibility of this state.

One of the most important issues addressed by international investment treaties is the question of the nationalization of foreign investment. The right of the state to nationalize foreign property is recognized by international law. However, its implementation is subject to a number of special requirements: firstly, nationalization cannot be arbitrary, it can be carried out in exceptional cases, in the public interest and on the basis of the law; secondly, it must be accompanied by the payment of “prompt, effective and adequate” compensation.

True, not a single universal international legal act fixes the obligation of the state to pay compensation during nationalization. Nevertheless, we can assume that such an obligation exists, and its legal force follows from international legal custom. This custom is confirmed by the practice of bilateral and multilateral investment treaties, which provide for such an obligation, the domestic laws of many states, which also provide for the mandatory payment of compensation, as well as the judicial and arbitration practice of different states. Moreover, most often it is not just about compensation, but about quick, effective, full (or adequate) compensation. For example, in accordance with Art. 7 of the CIS Agreement, foreign investments are in principle not subject to nationalization; the latter is possible only in exceptional cases provided for by law; and “prompt, adequate and effective compensation” is paid. The law of the Russian Federation on foreign investment establishes the obligation to pay compensation, and it must correspond to the real value of the property being nationalized.

Investment law as a branch of law has its own system, i. the internal structure and division into certain elements, institutions, each of which reflects the nature of the objectively emerging investment relations in society, is a natural process.

To understand the investment law and the legal regulation of investment relations, it is necessary first of all to note that in modern conditions the norms of investment law represent the initial element of the content of this industry. Because it expresses, first of all, the main features of the content of investment law as a whole. The content of investment law, i.e. the subject of legal regulation is a separate group of investment relations, reflecting the objective conditions for the existence and development of the investment process and (or) investment activity.

The following distinguishing features of investment legal norms can be distinguished.
1. Since investment law is intended to establish and regulate a certain type of social relations in which the main participants are the owners, these relations objectively require legally specific legal regulation, therefore, each rule of law has the quality of a generally binding rule: the rules of investment law are binding on everyone who is a participant investment relations.
2. The norms of the investment law are established, and also protected from violation by the state exercising control over the observance of the norms of the investment law.
3. Norms of investment law are distinguished by a sign of formal certainty. They formulate the rights of subjects of investment activity to specific types of permitted actions on certain objects recognized as investments, as well as obligations, prohibitions and liability for their failure or violation of public order.
4. Norms of investment law govern complex socially necessary relations between owners.

At the same time, each of the norms of investment law is a generally binding order of the state. All norms of investment law are designed to regulate social relations in the field of investment activity. At the same time, the regulatory norms of investment law establish the content of the rules of conduct, which is expressed in the extent of the permitted and proper behavior of the parties to the regulated relationship. This is achieved by defining the rights and respective obligations of the parties to the investment relationship. The norms of investment law define the conditions for exercising the powers of state bodies, lists of investment objects, features of the legal status of individual participants in investment activity and their characteristics, organizational and legal forms of investment activity, special requirements for certain areas of investment activity; the procedure and conditions for the conclusion and execution of contracts; limits and forms of state influence on investment processes.

The division of investment law as a branch into institutions, norms, depending on the content of regulated qualitatively homogeneous social relations, i.e. from the object of regulation, is the main legal structure of subject differentiation.

In investment law, legal norms are differentiated by institutions.

The criterion that is revealed in the process of subject differentiation and integration of investment law norms is associated with the main property that characterizes the system of investment law norms - this is the desire to streamline the content of legal norms, create stable links between elements of the internal structure that can identify and ensure the operation of properties complete system that are not inherent in its individual elements.

Therefore, the subject approach and structural analysis the content of investment law norms is a criterion for building a system of investment law institutions.

Based on the foregoing, we can propose the following definition of the concept of "investment law institution".

The institution of investment law is an objectively conditioned structure, consisting of the norms of investment law, united in a single law enforcement complex that coherently regulates a qualitatively homogeneous certain type of social relations in the field of investment activity.

1.3. investment law system

Investment law as a branch of law has its own system, i. the internal structure and division into certain elements, institutions, each of which reflects the nature of objectively developing investment relations in society, is a natural process * (23).

The following distinguishing features of investment legal norms can be distinguished.

1. Since investment law is intended to establish and regulate a certain type of social relations in which the main participants are the owners, these relations objectively require legally specific legal regulation, therefore, each rule of law has the quality of a generally binding rule: the rules of investment law are binding on everyone who is a participant investment relations.

2. The norms of the investment law are established, and also protected from violation by the state exercising control over the observance of the norms of the investment law.

3. Norms of investment law are distinguished by a sign of formal certainty. They formulate the rights of subjects of investment activity to specific types of permitted actions on certain objects recognized as investments, as well as obligations, prohibitions and liability for their failure or violation of public order.

4. Norms of investment law govern complex socially necessary relations between owners.

In investment law, legal norms are differentiated by institutions.

For the scientific study of the investment law system as a branch of law, the following scheme 1 is proposed.

Scheme 1. The structure of investment law as a legal branch

The criterion that is revealed in the process of subject differentiation and integration of investment law norms is associated with the main property that characterizes the system of investment law norms - the desire to streamline the content of legal norms, create stable links between elements of the internal structure that can identify and ensure the operation of the properties of an integral system, not inherent in its individual elements.

Therefore, the substantive approach and structural analysis of the content of investment law norms is a criterion for building a system of investment law institutions.

Based on the foregoing, we can propose the following definition of the concept of "investment law institution".

The institution of investment law is an objectively conditioned structure, consisting of the norms of investment law, united in a single law enforcement complex, coherently regulating a qualitatively homogeneous certain type of social relations in the field of investment activity.

International investment law. Investment law. Textbook (A. A. Ovchinnikov)

* * *

Introduction

Chapter 1 Investment law in the system of law

§ 1. The concept and subject of investment law

§ 2. Method of investment law

§ 3. Principles of investment law

§ 4. Functions of investment law

1.3. investment law system

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Chapter 1
Investment law in the system of law