cross-border legal relationship jurisdictional state
The subjects of international private law traditionally include individuals, legal entities and the state. Today, organizations that are not legal entities and municipalities can also be added to this list.
The subject of a cross-border legal relationship is the participants civil rights relations complicated by a foreign element.
A foreign element is understood as property relations, where the subject is a party that has foreign citizenship; subjects belong to one state, and the object is located abroad; the emergence, change or termination of relations related to a legal fact taking place abroad.
The subjects of cross-border legal relations include:
The main and probably the most significant subject of private international law is individual. Among individuals in international private law, national citizens, foreign citizens and stateless persons (stateless persons) are distinguished.
Citizens of the Russian Federation can participate in international private law relations. At the same time, their legal status on the territory of the Russian Federation is regulated by the substantive law of Russia. At the same time, this group of individuals may enter into international private law relations, being outside Russian Federation. In this case, they are additionally subject to foreign law.
Most often, when speaking about individuals in the MCHP, we mean foreigners located on the territory of the Russian Federation. They can be divided into three groups:
The next significant subject of international private law are legal entities. From the point of view of Russian law, legal entities must have an independent balance sheet or estimate. It is an independent entity and its liability is generally separate from the liability of the individuals who are its founders.
Among legal entities, national, foreign and international legal entities can be distinguished.
The term "nationality" is still applied to legal entities, emphasizing the connection of a legal entity with a particular state, but is becoming more and more conventional.
For example, following the merger of British Airways (Great Britain) and Iberia (Spain), a new airline, International Consolidated Airlines Group SA, was registered in Spain. The main platform for the placement of shares was the London Stock Exchange, additional - Madrid. IAG is positioned as a Spanish company with tax residence in Spain, financial and operational center in the UK.
55% of the shares of the International Consolidated Airlines Group (IAG) became the property of the shareholders of British Airways, and the shareholders of Iberia received 45% of the shares of the new airline. The aircraft of the newly formed airline continue to fly under the British and Spanish brands.
After the merger, British Airways was forced to prove its ownership of the UK so that its shares could continue to be included in the index of the hundred largest British companies FTSE 100.
According to the FTSE rules, a company registered outside the UK cannot be included in the country's blue chip list. However, the FTSE International committee took into account that the headquarters of the combined carrier would be located in the UK, and British Airways shareholders received more than half of the shares of the new corporation. Thus, despite the fact that the shareholders of British Airways were not only British citizens and legal entities registered in the UK, which new company registered in Madrid, at 130 Velazquez Street, and only legal entities registered in the UK are recognized as a British company, the International Consolidated Airlines Group began to be considered as a British company.
AT last years also raises the question of the existence of supranational legal entities Soshnikova I.R. On the problem of personal law of supranational legal entities // Actual problems privately legal regulation: Materials of the VIII All-Russian Scientific Forum (Samara, April 24 - 25, 2009) / Nauch. ed. ON THE. Barinov; Rep. ed. S.V. Martyshkin. Samara: Samara University, 2009, pp. 563 - 566. to transfer the legal address (and, accordingly, the central administration) from one state to another. At the same time, since the scope of their existence is limited to the territory European Union, it can be assumed that the further political unification of the European Union will lead to a change in the status of such legal entities.
In accordance with Art. 1202 of the Civil Code of the Russian Federation, the personal law of a legal entity is determined on the basis of the law of incorporation - the law of the place of establishment of a legal entity.
But when making transactions, a foreign legal entity may not refer to the limitation of the powers of its body or representative to make a transaction, unknown to the law of the country in which the body or representative of the legal entity made the transaction, unless it is proved that the other party to the transaction knew or must have been aware of this restriction.
In Russian law, special attention is paid to national legal entities with full or partial foreign participation. Their legal status is additionally determined by the legislation on foreign investments Federal Law of July 9, 1999 No. 160-FZ “On Foreign Investments in the Russian Federation”. // SZ RF. - 1999. - No. 3456. - Art.234..
Among legal entities, international legal entities are distinguished. In the doctrine, it is customary to refer to them legal entities that are created by virtue of an agreement between two or more states or by virtue of internal laws of one or more states adopted in accordance with an international treaty Boguslavsky M.M. Private International Law: Textbook. 4th ed., revised. and additional M.: Jurist, 2005. - P. 137. The issue of classifying non-governmental organizations as international legal entities P.E. Morozov is highly controversial. Non-Governmental Organizations as Subjects of International Labor Law in the Context of Globalization // Civilist. - 2011. - No. 1. - P. 25 - 29. The position of such legal entities is regulated, as a rule, by international agreements; diplomatic immunities (for example, the UN) may apply to these legal entities in cases established by international treaties. Otherwise, the position of foreign and international legal entities in Russia is the same.
Foreign and international legal entities may carry out their activities in Russia through authorized individuals or through branches and representative offices.
A special place among foreign legal entities is occupied by offshore companies, i.e. legal entities established on the territory of specialized zones for the purpose of carrying out their activities outside the state of registration.
In the literature, an offshore company is defined as “a company that is non-resident in relation to the country of registration and completely exempt from taxes” Klimovets O.V. International offshore business. Series " Higher education". Rostov-on-Don: Phoenix, 2004. - S. 130 - 131 .. One of the most important conditions for registration in an offshore zone is the non-performance of production, trade or other activities in the country of registration Private International Law: Textbook / Ed. G.K. Dmitrieva, M.: PBOYuL Grizhenko E.M., 2010. - P. 236. that real estate and commercial activities will not be acquired in the Bahamas.
The existence of offshore companies is equivalent to the presence of individuals - citizens of the state who do not have the right to enter the territory of the state of their citizenship and reside there.
Within the framework of private international law, the issue of transnational corporations is often raised. main feature such organizations - the implementation of their activities on the territory of several states and the possession of huge financial resources often exceeding the economic capabilities of the states where they operate.
The allocation of organizations that are not legal entities as a special subject of private international law is a novelty in Russian legislation. In the Russian Federation, as an example of such organizations, one can name a simple partnership, public and religious organizations of Dmitriev G.K., not registered as legal entities. International private law (part three of the Civil Code of the Russian Federation): Tutorial. M.: Jurist, 2010. - S. 163 .. In All-Russian classifier legal forms (OKOPF) OK 028-99, these entities are called "non-legal entities". In the UK, this list includes, for example, a general partnership. In accordance with Art. 1203 of the Civil Code of the Russian Federation, the personal law of a foreign organization that is not a legal entity under foreign law is the law of the country where this organization is established.
The activities of such an organization, if Russian law is applicable, are accordingly subject to the rules of the Civil Code of the Russian Federation that regulate the activities of legal entities, unless otherwise follows from the law, other legal acts or the essence of the relationship. At the same time, there are examples from judicial practice that speak of an ambiguous understanding of the status of such entities.
States (state formations) are special subjects of law by virtue of their sovereignty. When entering into relations with private individuals, states retain their public legal nature, but often the state is forced to enter into private law relations: to conclude contracts for the supply, energy supply, lease, sale, to resolve issues of the sale of state property, placement valuable papers etc.
In international public law, in addition to states, international organizations, nations and peoples fighting for self-determination, state-like entities Lukashuk I.I., Shinkaretskaya G.G. act as subjects of law. International law. Elementary Course: Textbook. 2nd ed., revised. and additional M.: Yurist, 2009. - P. 46 - 49. In private international law, these entities receive a different status: international organizations act as international legal entities, state-like entities can be considered in private law relations on a par with states, but nations and peoples fighting for self-determination do not receive an independent private law status.
The provisions on legal entities are largely applicable to the state as a subject of private international law, in particular, concerning the procedure for acquiring rights and exercising obligations. The most important feature of a state entering into private law relations is the presence of immunity, i.e. exemption from the jurisdiction of another state when performing any actions on the territory of this state.
Thus, we have come to the following conclusions.
International private law will regulate relations both between two individuals or between two legal entities, and between an individual or legal entity, on the one hand, and a state or other subject of public international law, on the other.
Each type of PIL entity has its own characteristics, which are given through the disclosure of special legal categories. For individuals, these categories will be legal capacity and legal capacity; for legal entities - personal status and nationality”; for state formations are state sovereignty, the sovereignty of peoples and nations.
Thus, the subject of a cross-border legal relationship is the participants in civil legal relations complicated by a foreign element, which is understood as property relations, where the subject is a party having foreign citizenship; subjects belong to one state, and the object is located abroad; the emergence, change or termination of relations related to a legal fact taking place abroad.
general characteristics legal regulation
The concept of investment activity is not well-established, there is no unambiguous approach to understanding investment activity. As a rule, economists understand investment activities as activities associated with production costs, the accumulation of means of production and the increase in inventories. Essentially, it is an investment of capital or other material resources in order to obtain an economic or other social effect.
This concept of lawyers, as a rule, does not suit, and therefore our legislator in this regard has always been distinguished by pedantry.
The Federal Law "On investment activities carried out in the form of capital investments" understands investments as cash, securities, other property, including property rights, other rights having monetary value invested in objects of entrepreneurial and (or) other activities in order to make a profit and (or) achieve another beneficial effect.
The Federal Law "On Foreign Investments in the Russian Federation" understands investments as the investment of foreign capital in an object entrepreneurial activity on the territory of the Russian Federation in the form of objects of civil rights owned by a foreign investor, if such objects of civil rights are not withdrawn from circulation or are not limited in circulation in the Russian Federation in accordance with federal laws, including money, securities (in foreign currency and the currency of the Russian Federation), other property, property rights having a monetary value of exclusive rights to the results of intellectual activity ( intellectual property), as well as services and information.
Thus, the legislator himself has not yet decided on the concept of "investment". The variety of concepts, approaches to this category causes the next step - classification:
Depending on the object of investment, real (as a rule, in the form of capital investments in the real sector of the economy) and financial investments (investment of resources focused on various financial instruments);
also distinguish between investments of a speculative nature and investments focused on long-term investments;
· according to the form of ownership, private investments and public investments are distinguished;
· according to the purposes of investment, direct investments are distinguished (in order to manage the object in which funds are invested) and portfolio investments (in order to receive income from invested funds);
By the nature of the use of invested capital, primary investments are distinguished (investment of capital, carried out both at the expense of own and borrowed funds), reinvestment (secondary use of capital obtained as a result of the use of primary investments) and disinvestment (release of invested capital without subsequent use for investment purposes).
The system of Russian investment legislation
It has a very complex structure, complex nature (acts of a private law nature and a public law nature).
These are the Federal Law "On investment activities carried out in the form of capital investments", the Federal Law "On foreign investments in the Russian Federation", the Federal Law "On subsoil", the Federal Law "On production sharing agreements", the Federal Law "On investment funds", the Federal Law "On the protection of rights and legitimate interests of investors in the securities market", Federal Law "On participation in shared construction apartment buildings", the Federal Law "On Special Economic Zones", the Federal Law "On Concession Agreements". In the part that does not contradict "everything and everything," the Law of the RSFSR "On investment activity in the RSFSR" also retains its effect.
With accession to the WTO, numerous agreements will be in force for Russia, for example, the TRIMs agreement.
Also sources should include judicial practice: resolutions of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 51 on building contract, No. 56 on agreements on participation in construction, No. 58 on the protection of foreign investors, as well as a generalization of the practice of the RF Armed Forces on disputes with organizations that raise funds from citizens in the construction of apartment buildings.
Such a system of Russian investment legislation is discordant. It would be possible to do without it, regulating investment activity through the norms of the Civil Code of the Russian Federation. Support measures may be contained in the Tax Code of the Russian Federation and other acts of public branches of law. Then there would be no need to "invent" a separate branch of law.
Defined array normative material available at the level of subjects of the Russian Federation.
Subjects of investment legal relations
There is no unambiguous concept of "investor" (according to Gorodov, there cannot be one). All persons of civil law (individuals, legal entities, public entities) can act as subjects of investment legal relations.
Public entities play a key role in investment activity in the Russian Federation.
In the legal literature, the classification of subjects is carried out:
organizers of investment;
· investors;
· subjects of investment activity;
professional participants in the investment market.
Investment contracts
The issue of investment contracts is also quite controversial in the legal literature. There are three areas:
investment contracts as a civil law category;
investment contracts as a public law category;
The discussion is predetermined by the complex nature of relations associated with the implementation of investment activities. For this reason, the practice of concluding investment agreements is also ambiguous (it relies on a wide variety of instruments, which, in turn, are determined by the relevant legislation).
An example investment agreement i is a production sharing agreement, which is an agreement according to which the Russian Federation grants to a business entity (investor) on a reimbursable basis and for a certain period of time, exclusive rights to prospecting, exploration, production of mineral raw materials in the subsoil area specified in the agreement, and on carrying out related work, and the investor undertakes to carry out the said work at his own expense and at his own risk. The agreement defines all the necessary conditions related to the use of subsoil, including the conditions and procedure for the division of manufactured products between the parties to the agreement in accordance with the provisions of the Federal Law "On Production Sharing Agreements".
The second type of investment agreements is an agreement on equity participation in the construction of apartment buildings ( legal basis is the relevant law). Under an agreement on participation in shared construction, one party (the developer) undertakes to contractual term on their own and (or) with the involvement of other persons to build (create) apartment house and (or) another real estate object and, after obtaining permission to put these objects into operation, transfer the corresponding object shared construction participant in shared construction, and the other party (participant in shared construction) undertakes to pay the price stipulated by the contract and accept the object of shared construction if there is a permit to put into operation an apartment building and (or) another real estate object.
Another form is the concession agreement. Under a concession agreement, one party (the concessionaire) undertakes at its own expense to create and (or) reconstruct the property specified by this agreement ( not movable property or immovable property and movable property, technologically interconnected and intended for carrying out activities provided for by the concession agreement) (object of the concession agreement), the ownership of which belongs or will belong to the other party (grantor), to carry out activities using (operating) the object of the concession agreement, and the concessor undertakes to provide the concessionaire for the period established by this agreement with the rights of possession and use of the object of the concession agreement for the implementation of the specified activity.
Some experts in the field of investment law single out (without due reason) leasing agreements and commercial concession agreements as investment agreements.
The special nature of relations adds up in the field of activity of special subjects involved in investment processes. These include persons who organize investment funds (see the Federal Law "On Investment Funds").
An investment fund is understood as being owned by a joint-stock company or in common fractional ownership individuals and legal entities - a property complex, the use and disposal of which is carried out by the management company solely in the interests of the shareholders of this joint-stock company or the founders of trust management.
A joint-stock investment fund is an open joint-stock company, the exclusive subject of activity of which is the investment of property in securities and other objects provided for by the Federal Law "On Investment Funds", and whose company name contains the words "joint-stock investment fund" or "investment fund". In this concept, the rules of logic are grossly violated: the concept of "joint-stock investment fund" is not generic in relation to the concept of "investment fund" (legal entity and property complex).
A mutual investment fund is a separate property complex consisting of property transferred to the trust management of a management company by the founder (founders) of the trust management with the condition that this property is combined with the property of other founders of the trust management, and from the property received in the course of such management, a share in the right ownership of which is certified by a security issued by the management company.
Allocate:
open mutual funds - their rules of trust management contain a condition that the owner of an investment unit (a security certifying the right to share ownership) has the right to demand from the management company the redemption of all investment units belonging to him on any working day (thereby the trust management agreement is terminated) or their parts;
· interval mutual funds- their rules of trust management contain a condition that the owner of an investment share has the right, within the period established by the rules of trust management, to demand from the management company the redemption of all investment shares belonging to him or a part thereof;
· Closed mutual funds - their rules of trust management contain a condition that the owner of an investment share does not have the right to demand from the management company the termination of the contract of trust management of the mutual fund before its expiration.
Management Company The unit investment fund shall be liable to the unit holders in the amount of actual damage in case of losses caused to them. Debts on obligations arising in connection with the trust management of property constituting a unit investment fund shall be repaid at the expense of this property. In case of insufficiency of the property constituting the unit investment fund, the recovery may be directed only to the own property of the management company.
The managing organization also has its own separate property, which is not part of the mutual fund, existing in the forms of LLC, CJSC, OJSC. Their legal capacity is special: their activities can only be combined with securities management activities carried out in accordance with the legislation of the Russian Federation on the securities market.
Other certain restrictions are also established for the management company, including on the issue of the sole executive body.
The management company has the right to invest its own funds, make transactions for the transfer of property for use, as well as provide consulting services in the field of investments, subject to the requirements of regulatory legal acts federal body executive power on the securities market to prevent conflicts of interest.
The management company is not entitled to dispose of the assets of a joint-stock investment fund or property constituting a unit investment fund without the prior consent of a specialized depository, with the exception of transactions made at the auctions of the stock exchange or other organizer of trading on the securities market, etc. In general, there are a lot of restrictions on the activities of management companies.
In this area, we follow Western models; accordingly, the legislation is built not on our practice, but on foreign. Despite this, the model has taken root.
As follows from the previous presentation, a cross-border investment fund is a special commercial organization. It carries out activities sanctioned by personal and territorial legal orders on a broad international basis.
Despite the common corporate basis of activity with other legal entities, this commercial organization is characterized by exclusive legal personality in the field of collective investment and profit from holding assets, as well as cross-border transactions.
In this paragraph, we will try to reflect the features of the subject of foreign investment law in the applicable context. They are investment legal relations, in which one of the elements (subject or object) as an integral part contains a foreign public order, characterized by a unique approach to the issue of recognition and protection of subjective rights.
The given legal element does not affect either the nature, or the content, or the structure of the investment legal relationship. it
regulated by the norms of private law, a public relation to the realization of property rights in relation to generic (lat. - res genus) or individual (lat. - res species) things that can be a means of extracting benefits or achieving another effect that is significant for the owner from inclusion in property turnover when accepting a certain amount of risk.
However, this element does not allow the legal relationship to be subordinated to the direct action of the substantive norms of one state. Its appearance requires, before resolving the civil problem, to pay attention to the conflict problem through an appeal to the mechanism for eliminating the conflict of legal elements.
The appeal to such a mechanism is justified and takes place in the presence of a variety of national legislative acts containing "different rules for the same relations" . Law enforcement itself is based on a certain set of principles. Schematically, in the most general form, they can be represented as follows:
1) law enforcement is based on the goal of finding the closest connection (in French - le lien le plus etroit) with an objective legal order competent in resolving a cross-border private law dispute;
2) when prescribing, both national and foreign law apply on an equal basis;
3) the application of foreign law does not violate the public interests of the national legal order.
A characteristic feature of investment relations, the subject of which is a cross-border investment fund, is the subordination of a personal, real or obligation statute, depending on the conditions for the implementation of subjective rights. This means that the choice of the applicable law (binding) is determined by the range and variety of legal relations being implemented (the scope of the legal norm).
At the same time, the nature of the composition of the subjects of legal relations does not matter. This is connected with the concept we advocate of preventing the existence of public law preferences in the field of private international law in connection with the implementation of private law activities on a general basis.
Investments, or private international capital, is the basis and goal of the activities of cross-border investment funds.
It is noteworthy in this regard that if the period of the first wave of globalization is characterized by the national basis of attracted capital, then since the middle of the 20th century (the second wave of globalization) there has been a cross-border one. This was largely facilitated by financial liberalization measures. Their implementation has opened wide opportunities for institutional investors in the matter of attracting foreign capital.
At the same time, the quality of income is provided by qualified investors (eng. - qualified investors), while the volume is made up of small individual investors (eng. - small individual investors). Their activity is determined by a stable legal and economic situation. In this case, we are talking about personal savings that do not accumulate or are subject to withdrawal during political and economic crises. Thus, in the period before the First World War, in the interval between the First and Second World Wars, as well as in the several decades following the end of the Second World War, the economic branch of collective asset management suffered a significant decline due to the supply of only intellectual capital.
Such capital is formed from the contributions of individuals and legal entities endowed with the necessary amount of legal capacity in a personal legal order. In connection with the investment in the organizational form of collective investment, they become its participants, assuming the risks of losses in the amount of invested funds.
At the same time, the share of participation determines the scope of rights and obligations. If it forms a majority interest, implying the presence of a controlling stake, as well as the right to operational control and management of activities, the definition of which we will resort to further disclosure, a fiduciary duty arises. It involves the implementation of actions or the adoption of decisions without violating the interests of other participants.
In foreign judicial practice in this case, the term "standards of fiduciary duty" applies. Reference to him, in particular, took place in the case of Flying Disc Investments LP, et al. v. Baker Communications Fund II, L.P., et al and Flying Disc Investments LP, et al. v. wine.com, et al. The determining factor in the issue of the emergence of a fiduciary duty is the functional definition of control, determined by the personal law of a legal entity (in Latin - lex societatis).
As a rule, in the most general form, the functional definition of control is revealed through the right to achieve, determine, make and approve decisions regarding the composition of managerial personnel, choose the main strategy of activity, dispose of assets, change or transform the legal form of the target company. Enshrined in many legal orders, such a functional definition of control is of decisive importance in the issue of authorizing transactions carried out by foreign governments.
We are talking about cross-border investment transactions of sovereign wealth funds. In most states, they are the object of close scrutiny by the competent personal law enforcement officers of the target company. This is due to the potential threat to national security. For example, in the United States, the concept of national security provides for the exclusion of foreign (public) investors from infrastructure and technologies of particular importance.
At the same time, attention is drawn to the fact that control can be acquired both through traditional asset acquisition transactions and
and by implementing alternatives. These are structured secured loan transactions. In this case, the loan-to-own strategy for acquiring control of the target company allows:
1) take advantage of the autonomy of the will (English - party autonomy) and the choice of the optimal jurisdiction for a particular transaction (English - forum shopping);
2) reduce potential risks and ensure the achievement of the goals set before its implementation through the right to satisfy the claims in the “first priority” of creditors.
Due to the peculiarities of the legal structure of a cross-border investment fund, the collection and accumulation investment capital characterizing the first level in the structure of legal relations, the single element of which is the cross-border investment fund, are carried out through the issuance of securities. Its purpose is to acquire funds in the amount necessary for effective investment on a cross-border basis, regardless of whether they are contributed by many or only one or a few individuals.
In this case, the cross-border investment fund acts as an issuer, that is, a person liable for securities certifying the actual capital contributions of individuals and legal entities. At the same time, the implementation of civil law transactions for the alienation of securities by cross-border investment funds in favor of the first and all other owners is subject to the action of substantive law, chosen 1) by the will of the parties (Latin - lex electa) or 2) based on the action of national legal and international - legal conflict of laws rules or
3) based on the national legal practice of conflict regulation.
The funds raised are invested in foreign assets in order to receive profit from international diversification and its further distribution among the participants. In some cases, the goal is to support knowledge-intensive projects during the implementation of commercial
activities or promotion of social programs within the framework of social entrepreneurship.
This constitutes the second level in the two-level interconnected structure of legal relations, the common element of which is the cross-border investment fund. At the same time, the capital investments that characterize it are carried out within the limits of the powers enshrined in the personal and territorial legal order of the cross-border investment fund.
Generic (lat. - genus) or individual (lat. - species) things act as an object of cross-border investment legal relations with the participation of cross-border investment funds. The rights to them, as well as their content, are determined by the law of their location.
It is noteworthy in this regard that the concepts of law “object of cross-border investment transactions” and “object of cross-border investment rights” are recognized as interchangeable. Their content, according to Russian law, consists of things, including money and securities, other property, including property rights. They are characterized by the property of negotiability not limited by the public interests of the legal order of the location or the personal interests of the owner.
In turn, the scope of the concept of law "object of cross-border investment rights" is narrower than the concept of "object of civil rights". In Russian law, the content of the concept of "object of civil rights" is an open list of property, property and non-property rights freely alienated and transferred from one person to another in the order of universal succession.
At the same time, the scope of the concept of law “an object of cross-border investment transactions with the participation of cross-border investment funds” is narrower than the concept of “an object of cross-border investment transactions”. This is due to the limited composition of property that can be the object of trust management.
The conscientiousness of the acquisition, as well as the validity of rights to such property, are determined and protected on a cross-border basis by the law of the location of the thing at the time of its transfer, including in the event of its further movement. At the same time, the conflict-of-law principle lex rei sitae (or lex situs, translated from Latin, meaning “the law of the location of a thing”), both in domestic and foreign doctrine, is recognized as generally recognized and unconditionally applied in the regulation of private legal relations on an international basis. Since the Italian school of post-glossators regularized the successes achieved in the interpretation of Justinian's codification, the guarantee of unchanged circulation lies in the simplicity, predictability and certainty of law enforcement.
However, despite a unified (territorial) approach to determining the emergence of property rights, other rights in rem to the object of cross-border investment transactions with the participation of cross-border investment funds according to the law of the location of the thing (Latin - lex rei sitae), and also regardless of whether that the content of these rights is also determined by the law of the location of the thing, their qualification as movable or immovable things determines the objective legal order that is exceptional in all cases or directly related to the transaction. For things that are immovable by nature or by designation of law, it does not matter where, under what conditions and by whom the deal was concluded regarding the determination of their fate. The rights arising from such a transaction are subject to the operation of the territorial statute.
The same principle, but in connection with property characterized as being moved independently or through an external force, gives different results of law enforcement. Due to the widely developed concept
mobility of goods, works and services, issues of determining the emergence and termination of real rights, their maintenance and protection are subject to the law of the state where the property is located at the moment of importance for the transaction. This characterizes the lex rei sitae as both a rigid and flexible conflict binding.
At the same time, in relation to securities, the conflict-of-law binding is determined by the concept introduced into the practice of legal regulation, which reflects the essence of the more complicated scope of the conflict rule.
Securities are a special kind of objects of civil rights, the role of which in the context of this study is determined by ensuring the involvement of private international capital and exercising the rights to control foreign property.
We are talking about the concept of non-certified (uncertificated) security. It was adopted by the American legal system in 1977 to provide issuers with the opportunity to choose an alternative to the traditional method of issuing securities. With it, the transfer of the so-called "embodied rights" as a legal fact is confirmed by an entry in the issuer's register. In this case, the connecting criterion that determines the competent legal order is the place where such a register is kept.
The introduction of a system of transfers in response to the US paper crisis of 1960 served as a condition for volume differentiation. It connects the localization of certified securities with the place of keeping the register of the corresponding depository, the main element of the system responsible for their holding.
Finally, the introduction of a system of mediated holding, which provides for the figure of an intermediary, has its significance. Its local legal order, determined on the basis of a cascading system of bindings (general, subsidiary and sub-subsidiary), is associated with the acquisition of a title to securities, the rights and obligations of an intermediary, the admissibility
imposition of obligations towards third parties in connection with the right to securities or recognition of their claims. These are the law chosen by the parties to the transaction (Latin - lex voluntatis), the law of the closest connection (English - proper law), the personal law of a legal entity (Latin - lex societatis).
However, in relation to a certain variety of individual things (lat. - res species), representing monetary, aesthetic and intellectual value and being in some cases the object of trust management, recourse to the law of the location of a thing should be limited.
This is due to the possibility of generating undesirable legal consequences, such as the legalization of theft, leading to a further transfer of rights, including in good faith. For example, in Winkworth v. Christie, Manson & Woods Ltd. art objects were stolen from the English plaintiff in England, which were then taken to Italy and sold there to a bona fide purchaser. The latter, after a certain time, brought these works of art back to England for auction. Due to the fact that the title to them was acquired in good faith in Italy, their location, the English court recognized them by applying the conflict-of-laws principle lex situs.
In view of this, in order to prevent the development of the practice of violating the rights of the original owners of art objects illegally exported from the country, it is proposed to use the conflict-of-law binding lex originis (law of origin) or renvoi (return reference) as an alternative. In the matter of determining title, these instruments of private international law refer to the State of origin. At the same time, according to the Anglo-American researcher D. Fincham, who published a number of articles on conflict-of-law regulation of cross-border movement of cultural property, “renvoi is a unique conflict-of-law principle that
quite rarely used due to insufficient certainty and consistency ", inherent in the case under consideration, the law of the location of the thing (in Latin - lex rei sitae).
As a legal doctrine, retroactive reference is characterized by its complexity. This is due to a broad interpretation of the concept of “foreign law”, which implies both the substantive and conflict of laws of a foreign state, to which the conflict of law rule of the place of consideration of a transboundary civil dispute refers.
In view of the fact that the choice of a conflict-of-law binding implies, according to F. Vischer, a “political and legal decision”, a reverse reference to the national or legal order of a third party, encroaches on national interests and preferences. In this regard, international conflict-of-law instruments enshrine the rule of prohibition of return sending, for example, the Regulation of the European Union (Rome II) .
As follows from the above, in order to localize the subject of a cross-border investment transaction involving a cross-border investment fund, it is proposed to use the law of the location of a thing (Latin - lex situs) as a general reference. In turn, the law of origin (lat. - lex originis) - as a subsidiary, whose action is determined by the satisfaction ratione materiae (literally - in view of the circumstances associated with the subject
consideration). These are things held in trust, representing monetary, aesthetic and intellectual value.
For this, it is proposed to supplement Art. 1205 of the Civil Code of the Russian Federation with the following provision: “The exception is movable property falling under the legal category of “cultural property”, the ownership and other real rights to which are determined by the law of the country of its origin.” This will ensure proper observance of private and public interests in the circulation of Russian cultural property in the framework of cross-border activities.
All of the above indicates the special nature of relations with the participation of cross-border investment funds. This is a separate variety of private law relations complicated by a foreign element, the independent features of which are:
a) a two-level interconnected structure, within which a cross-border investment fund is a party receiving direct or portfolio foreign capital (the first level), and a direct or portfolio foreign investor (the second level);
b) a special entity (cross-border investment fund) -
commercial organization with exclusive
legal personality in the field of collective investment;
c) a kind of legal reason - support for science-intensive projects, attraction of high-potential capital of large foreign institutional investors in national economy, solving problems of social entrepreneurship;
d) both private and public nature of the composition of subjects;
e) a truncated composition of objects, based on the features of trust management of property.
In this regard, we consider it necessary to introduce into the doctrine of private international law the concept of investment relations with the participation
cross-border investment funds. These are public relations regulated by a system of general or special norms of direct action on the transboundary movement of generic or individual things at the stages of formation and management of special commercial organizations international investment portfolios.
Such a definition, in addition to the purpose of isolating investment relations with the participation of a new type of entity in a number of relations subject to the law of foreign investment, is of great practical importance. It consists in reflecting the features of legal regulation, determined by the elemental composition and conditions for the implementation of these relations.
As you know, there are no subjectless legal relations. The formation and development of the investment legal regime and investment legal relations in the Russian Federation began with the determination of the legal status of investment entities and investment legal relations.
Determining the circle of persons who are recognized as investors is of significant practical importance.
First, the recognition of a person as a subject of investment activity depends on the provision of relevant rights and benefits, which are established in the norms of investment law. Secondly, the status of an investor or other subject of investment law matters during registration, admission to the implementation economic activity. Thirdly, if a person is recognized as an investor, guarantees and other conditions provided for by the legislation of Dronina N.G., Semilyutin, N.G. may apply to him. Investment regulation as a form of protection economic interests state // Journal of Russian law. - 2005. - No. 9. - p. 75..
The circle of investors who are subjects of investment activity can be determined based on the laws on investment activity, i.e. acts containing norms specifically designed to regulate relations related to the investment of capital, primarily relations of a civil law nature. The subjects of investment activity as owners have the autonomy of the will of the parties, however, in the final analysis, their autonomy of will is subordinated to the will of the state as a body for managing investment processes. This is due to the fact that no private interest in society can be legitimately realized without the interest in it of other individuals and society as a whole. Public law regulation is aimed at developing socially necessary investment relations in the right direction. The task of the state is to correctly determine the public and state interests, find their optimal coordination and determine adequate legal conditions and guarantees for the implementation of Komarov, I. The investment complex of Russia. Problems and prospects. // Investments in Russia. - M., 2008. - No. 11. - p.14-15..
The concept of the subject of investment activity is directly related to the assessment of the subject of investment law. The general theoretical definition of a subject of law is associated with a statement of the subjective right to participate in relations regulated by legal norms. Accordingly, the bearers of rights and obligations established by legal norms are characterized as subjects of law.
The main property of the subject of investment law is the legal capacity for independent legal actions, including the right to conclude investment agreements, to be responsible for their actions. Since individuals and legal entities are under the authority and jurisdiction of the state, their status is determined by the state bodies. However, at the same time, any subject of investment activity acts as a bearer of the rights and obligations established by the norms of investment law, therefore, the concept of a subject of law is associated with the characteristic of its legal personality.
Investment legal personality as a special legal property is a qualitative measure of the characteristics of the subject. A quantitative measure is a set of rights and obligations. In other words, legal personality is embodied in the totality of rights and obligations. The rights and obligations of subjects of investment law are heterogeneous.
The legal status of investors is determined in the Russian Federation by the following regulatory legal acts: Civil Code of the Russian Federation, the Law on investment activities carried out in the form of capital investments, as well as the Law on investment activities Farkhutdinov, I.Z., Trapeznikov, V.A. Investment law: studies.-pract. allowance / I.Z. Fatkhutdinov, V.A. Trapeznikov. - M .: "Wolters Kluver", 2006. - p. 38..
According to Art. 4 of the Federal Law of 25. 02.99 No. 39-FZ "On investment activities carried out in the form of capital investments", the subjects include investors, customers, contractors, users of capital investments, investment funds, the state Federal Law of February 25, 1999 No. 39- Federal Law "On investment activities in the Russian Federation, carried out in the form of capital investments" with the latest amendments. July 24, 2007 Let us present the differences between these concepts.
Investors carry out capital investments on the territory of the Russian Federation using own or borrowed funds. Investors can be both individuals and legal entities created on the basis of a joint activity agreement, and not having the status of a legal entity, associations of legal entities, state bodies, local governments, foreign investors.
The law defines the rights of investors; the Law specifically points to the equality of these rights. We present the main ones.
1. The right to carry out investment activities. The right of investment not prohibited by the legislation is an inalienable right of the subjects protected by the Law.
2. Independence of the investment choice, i.e. the right of the investor to independently determine the volumes, directions and sizes of investment, the circle of participants in investment activity, to conclude agreements with other subjects of investment activity that regulate their relations.
3. The right of the investor to own, use and dispose of investment objects and other results of investment activity. At the same time, it should be noted that the norms of some legal acts regulating investment activities directly speak of the emergence of an investor's ownership of investment objects.
4. The right to control the intended use of funds allocated for investment.
5. The right to transfer under the contract and (or) state contract their rights to make investments and their results to others.
The right to combine own and borrowed funds with the funds of other investors for the purpose of joint investment activities on the basis of an agreement and in accordance with the legislation of the Russian Federation Federal Law of February 25, 1999 No. investments” with the latest revisions. July 24, 2007
The Federal Law on Foreign Investments defines the circle of persons who can be foreign investors, these are:
a) a foreign legal entity whose civil legal capacity is determined in accordance with the legislation of the state in which it is established, and which is entitled, in accordance with the legislation of the said state, to invest in the territory of the Russian Federation;
b) a foreign organization that is not a legal entity, whose civil legal capacity is determined in accordance with the legislation of the state in which it is established, and which is entitled, in accordance with the legislation of the said state, to invest in the territory of the Russian Federation;
in) foreign citizen, whose civil legal capacity and legal capacity are determined in accordance with the legislation of the state of his citizenship and who is entitled, in accordance with the legislation of the said state, to invest in the territory of the Russian Federation;
d) a stateless person who permanently resides outside the Russian Federation, whose civil legal capacity and legal capacity are determined in accordance with the legislation of the state of his permanent place residence and who is entitled, in accordance with the legislation of the said state, to invest in the territory of the Russian Federation;
e) an international organization that is entitled, in accordance with an international treaty of the Russian Federation, to invest in the territory of the Russian Federation;
e) foreign countries in accordance with the procedure determined by federal laws Federal Law of July 9, 1999 No. 160-FZ “On Foreign Investments in the Russian Federation”.
The main difference between a Russian investor and a foreign one is the fact that the activities of a domestic investor are fully regulated by the legislation of the Russian Federation, and a foreign investor operates not only in accordance with the legislation of the Russian Federation, but also in accordance with the legislation of his state. International organizations whose activities are carried out in accordance with an international treaty are also recognized as foreign investors.
If for some time as investors in the Russian Federation acted large enterprises, the privatization process gave rise to private investment. First of all, we are talking about privatization checks, which many citizens invested in certain companies in the hope of getting some profit from their investments in the future.
In the Russian Federation, private investment has also been developed as an investment of free Money for profit by ordinary individuals not registered as entrepreneurs Bogatyrev, A.G. State-legal mechanism for regulating investment relations: (Questions of theory). Abstract of the dissertation of a doctor of legal sciences / Acad. Ministry of Internal Affairs of the Russian Federation. - M., 2006. - p. 12..
Investors have a special legal status when investing in construction. In this situation, the investor is an individual, concluding an agreement equity participation in construction enjoys an additional protection regime based on consumer protection legislation. In these respects, by virtue of a direct indication of the law, the activity of the investor in sending funds to construction will be subject to the regulation of the Law of the Russian Federation of February 7, 1992 No. 2300 "On Protection of Consumer Rights (hereinafter referred to as the Consumer Rights Protection Law). Thus, citizens-investors who invest in construction for non-entrepreneurial purposes receive additional mechanisms to protect their rights. The special legal status of the investor is also observed in the implementation of portfolio investments.
All of the above allows us to conclude that the main subject of investment law is the investor in all its legal manifestations. However, the legal status of this subject of investment law is different depending on its national-state affiliation, organizational and legal form and the scope of investments Yesterday, I. Regulation of investment activity in the Russian Federation. // Investments in Russia. - M., 2006. - No. 1. - With. 22-26. .
Investors can be:
Bodies authorized to manage state and municipal property or property rights;
Citizens, enterprises, business associations and other legal entities;
Foreign individuals and legal entities, the state and international organizations.
Pooling of funds by investors for joint investment is allowed.
In the field of investment, other participants in investment legal relations can be distinguished.
Investors can act as investors, customers, creditors, buyers, as well as perform the function of any other participant in investment activities Gushchin, V.V.; Dmitriev, Yu.A. Russian business law: textbook / V.V. Gushchin, Yu.A. Dmitriev. - M .: Eksmo Publishing House, 2005. - from 342 ..
Traditionally, the word "investor" is interpreted as "depositor", and "investment" - as "premise, capital investment". If desired, in such an interpretation, one can trace the connection with the original meaning. Indeed, by investing money in any enterprise, the investor gets the opportunity to spread his influence over it. Most often, he realizes this opportunity most in a simple way: invests at his own risk and receives dividends from his investments or simply does not invest (or withdraws his contribution) if something does not suit him. AT individual cases investing capital gives him the opportunity to plant his proteges and ideology on the “attached territory” in order to participate in management and increase his investment income.
In fact, such a generally accepted interpretation not only introduces ambiguity into the concept of "investor", but also shifts the meaning of the word into the area of non-essential characteristics. In fact, the concept of "contributor" (as well as "contribution") is non-specific not only for any one process, but even for some area of activity: a contributor is not only an investor, but also, for example, a sponsor, philanthropist etc. That is why the concept of "investor" cannot be interpreted as "depositor".
The investor, as the main figure of the investment project, has the right to independently determine the volume, nature and efficiency of investments; control their intended use; own, use and dispose of the results of investments (except as otherwise provided by law); transfer of part of the powers to other organizations Khalevinskaya, E.V. State regulation investments // Marketing. - M., 2005.- No. 4. - With. 13-14..
Customers - individuals and legal entities authorized by investors who carry out the implementation of investment projects. Investors can be customers. If the customer is not an investor, he is vested with the rights of possession, use and disposal for a period within the powers established by the specified agreement, and in accordance with the legislation in force on the territory of the Russian Federation. The users of investment activity objects can be investors, as well as other individuals and legal entities, state and municipal authorities, foreign states and international organizations for which an investment activity object is being created Farkhutdinov, I.Z., Trapeznikov, V.A. Investment law: studies.-pract. allowance / I.Z. Fatkhutdinov, V.A. Trapeznikov. - M .: "Wolters Kluver", 2006. - p. 138..
Contractors are individuals and legal entities that perform work under a work contract and a state contract concluded with a contractor Yankovsky, K.P., Mukhar, I.F. Organization of investment and innovation activities. - St. Petersburg: Peter, 2001. - p. 322..
Users of capital investment objects - individuals and legal entities, including foreign, state bodies, local governments, foreign states, international associations and bodies for which these objects are created. Investors may also be users of capital investments July 24, 2007
The subject of investment activity may combine the functions of several subjects. It should be borne in mind that this is only a conditional division of the subjects of investment activity, the relations arising between the subjects are regulated by other legal acts, including the Civil Code, agreements concluded between the subjects, Federal Law No. 160-FZ dated 09.07.99 About foreign investments in the Russian Federation. The subjects are endowed with rights and obligations in accordance with the current legislation. Investors independently determine the volumes and directions of capital investments, exercise control over the targeted use of funds Farkhutdinov, I.Z., Trapeznikov, V.A. Investment law: studies.-pract. allowance / I.Z. Fatkhutdinov, V.A. Trapeznikov. - M .: "Wolters Kluver", 2006. - p. 138..
Investment funds are also subjects of investment activity. A more detailed description of investment funds as subjects of investment activity is presented in section 2.2 of this work.
A special subject of investment law is the state, which acts both as an investor and as an initiator of investment activities to meet the interests of society.
State regulation of investment activity, implementation of investment policy aimed at the socio-economic and scientific and technical development of the Russian Federation is ensured government bodies RF, subjects of the Federation within their competence and carried out:
In accordance with state investment programs;
Direct management of public investment;
The introduction of a system of taxes with differentiation tax rates and benefits;
Providing financial assistance in the form of grants, subsidies, subventions, budget loans for the development of certain territories, industries, industries;
Conducting financial and credit policy, pricing policy (including issuance of securities), depreciation policy;
In accordance with the established legislation in force on the territory of the Russian Federation, the conditions for the use of land and other natural resources;
Control over compliance with state norms and standards, as well as compliance with the rules of mandatory certification On standardization", "On ensuring the uniformity of measurements", "On certification of products and services");
Antimonopoly measures, privatization of objects state property, including objects of construction in progress;
Expertise of investment projects Babuk, I.M. Investments: financing and evaluation economic efficiency. Mn.: VUZ-UNITI, 2002. - p. 167..
In accordance with Art. 12 of the Law on Investment Activities, decisions on public investment are made by the highest representative body on the basis of economic and economic forecasts. social development of the Russian Federation, schemes for the development and deployment of production forces, scientific, technical and feasibility studies that determine the feasibility of these investments Federal Law of February 25, 1999 No. 39-FZ “On investment activities in the Russian Federation carried out in the form of capital investments” with last rev. July 24, 2007
Funding comes from funds state budget RF and extrabudgetary sources, i.е. from the subjects involved in the implementation of these programs. Bank loans under state guarantees can be a source of investment.
In relations regulated by the norms of investment law, its participants are bound by mutual rights and obligations. Rights and obligations are exercised in the real actions of the subjects in the use of rights and the fulfillment of obligations. Investment legal relations act as a legal form of the actual investment relationship. Investment legal relations arise, change and terminate, their content (rights and obligations) is implemented to achieve the goals. All this dynamics of legal relations is inextricably linked with legal facts.
In this case, usually in investment activity, the main such fact is the lawful actions of the subjects of investment law to conclude an investment agreement, which defines the relationship of owners or owners of funds invested in business objects, interaction in the process of implementing an investment project, in the distribution of income from the subsequent operation of the project , and the right to the object is also set.
However, investment relations can arise, change, terminate not only as a result of lawful actions, but also events that do not depend on the will of a person. Events become the basis for legitimate consequences, for example, the termination of the legal capacity of a legal entity as a result of its liquidation is the basis for the termination of obligations; fire, flood, which caused the destruction of property - the object of investment - payment insurance compensation if the property was insured, etc.
Based on the foregoing, the following definition of the subject of investment law is proposed. The subject of investment law is a person who carries out investment activities and is the bearer of a certain scope of rights and obligations, whose legal capacity and legal capacity is determined on the basis of the norms of investment legislation, which has the legal ability to exercise rights and fulfill legal obligations in certain areas of investment in objects permitted by the current legislation Dyatlov , S.A. Investment concept of Russia's development. - St. Petersburg: Peter, 2005. - p. 142..
Having considered the legal status of subjects of investment activity in the Russian Federation, in our opinion, it is necessary to study in more detail the state-legal regulation of the activities of investment funds as subjects of investment activity. This is the subject of the next section of the final qualification work.
The peculiarities of relations between a foreign investor, a recipient of foreign investments, a country receiving foreign investments and a country of a foreign investor often lead to complex legal regulation of both the relations between these entities and approaches to solving disputes between them. The problem of choosing the law applicable to the material and procedural aspects of relations within the investment process with the participation of a foreign investor means the autonomy of the parties in choosing the applicable substantive law and the law related to the dispute. The participation of a foreign investor in the investment process affects the specifics of dispute resolution.
Under the investment legal relationship, it is proposed to understand the social relationship arising in connection with the investment and implementation of investments, the parties in which are connected legal rights and obligations regulated by the investment legislation and provided by the system of state - guarantees and sanctions.
Like any legal relationship, an investment legal relationship has an appropriate composition (structure), those. an internal structure that allows us to consider this relation as a complex system, the elements of which are the object of the legal relationship, the subjects of the legal relationship and its content.
The object of investment, legal relations is the expected profit, or other useful result, which is the target, setting that determines the behavior of the subjects of investment activity.
Individuals and legal entities (including foreign ones), as well as may act as subjects of investment legal relations. states and international organizations: The peculiarity of the listed participants in legal relations is that they act as subjects of investment activity, and their place and role in the system of investment activity is regulated by investment legislation. The Federal Law of the Russian Federation “On investment activity in the Russian Federation carried out in the form of capital investments” defines investors, customers, contractors and users of capital investment objects as subjects of investment activity.
Investors are subjects of investment legal relations that make capital investments using their own or borrowed funds. Investors can be individuals and legal entities created on the basis of an agreement on joint activities and not having the status of a legal entity; associations of legal entities, state bodies, local governments, as well as foreign business entities.
Customers are individuals and legal entities authorized by investors who implement investment projects. At the same time, they do not interfere in the entrepreneurial or other activities of other subjects of investment relations, unless otherwise provided by an agreement between them.
Contractors are individuals and legal entities that perform work under a work contract or a state contract concluded with customers in accordance with the Civil Code of the Russian Federation.
Users of capital investment objects are individuals and legal entities, including foreign ones, as well as state bodies, local governments, foreign states, international associations and organizations for which these objects are created.
Subjective right in this case is a measure of the possible behavior of the subject of investment activity, determined by the legal norm. For example, the Federal Law of the Russian Federation "On investment activities in the Russian Federation, carried out in the form of capital investments" very clearly defines the subjective rights of investors. The law, in particular, states that the investor, as a subject of investment legal relations, has the right to carry out investment activities; independently determine the volume and directions of capital investments, as well as conclude an agreement with other Subjects of investment activity; to own, use and dispose of the objects of capital investments and the results of the capital investments made; transfer under an agreement and (or) a state contract their rights to make capital investments and their results; exercise control over the targeted use of funds allocated for capital investments; combine own and borrowed funds with the funds of other investors for the purpose of joint implementation of capital investments, etc. But besides the ability to act in a certain way, the structure of subjective law, or its structure, also includes such elements as the ability to demand appropriate behavior from the other side and the ability to resort to state protection in case the other side fails to fulfill its legal obligations.
The legal obligation as a component of the legal content of the legal relationship is inextricably linked with the subjective right. The presence of a legal obligation corresponding to subjective law, in fact, constitutes the first. If an investor, in accordance with the law, has the right to own, use and dispose of capital investment objects, then it implies that other subjects of investment legal relations have an obligation not to interfere with this subjective right and not to diminish it.
The obligations of the subjects of investment legal relations are determined in the current legislation. Subjects are obliged: to carry out investment activities in accordance with international treaties of the Russian Federation, federal laws and other regulatory legal acts of the Russian Federation, laws of the constituent entities of the Russian Federation and other regulatory legal acts of the constituent entities of the Russian Federation, as well as with duly approved standards. rules and regulations); fulfill the requirements. presented by state bodies and their officials that do not contradict the norms of the legislation of the Russian Federation; use funds allocated for capital investments for their intended purpose.
Thus, it is necessary to separate such independent concepts as: investment activities – investments (foreign investment ) – investor(foreign investor). In the aggregate of their implementation, these categories form investment legal relations, that is - relations that develop regarding investment by foreign investors in the territory of the Russian Federation in the form of objects and rights.
