Теоретические аспекты института инвестиционной гарантии в международном праве

Abstract

The article presents an analysis of theoretical aspects and evolution of the institution of an investment guarantee against non-commercial risks. The relevance of the problems concerning the protection of property rights of aliens and the treatment of foreign investment exported from the home (capital-exporting) State to the legal conditions of the host (capital-importing) State grows proportionally to the evolution of the global investment process. In the doctrine of international law there is so far no uniform position concerning the obligation of the State as a sovereign to be responsible before the private investor for the damages arising due to realisation of the sovereignty. The Western capital-exporting countries and the USA traditionally proceed from a principle of the complete responsibility of the host state, and the maximal protection to the foreign investor ("international minimum standard" theory). The Latin American countries declare absence of the right to privileged protection of the foreign investor, and also that the sovereign host state should itself determine the standard of its responsibility (Calvo doctrine). Decolonized countries of Asia and Africa in its position emphasised the absence of the right to obligatory protection; the state gives such right at its own discretion; it also determines a measure of the responsibility. The state a priori was not responsible to the foreign investor, according to the position of the former socialist countries; the restriction of their rights was perceived as an indisputable prerogative of the host state. Development of the international investment market gradually smoothes over the polarity of the given positions. The former Soviet countries seek to ensure legal balance in relation to the foreign investor through improving the internal legislation and participating in the international investment treaties. In particular, the Republic of Belarus has concluded the agreements on investment protection and promotion with 25 countries. In addition, more than 30 treaties on trade and economic cooperation grant to the foreign investors a most favoured nation treatment. Nevertheless, the responsibility of the state-importer of the capital is still rather relative, as it is not fixed by any rule of universal international character. Thus, the necessity of representation of foreign investors' interests at a due international level became evident. In this respect it is difficult to overestimate the importance of the institution of an investment guarantee. The institution of an investment guarantee is perceived by the theory of the international economic law as a public category broaching questions of the international policy in sphere of economic cooperation and development. This institution is the original instrument of the state or community of the states (in case of MIGA), which aims to facilitate the process of international economic stabilisation, to encourage the inflow of foreign investment capital in the developing countries, to reorganize the centers of accumulation of the world capital and to overcome the negative factor of economically backward regions. The investment guarantee represents the mechanism of insurance of the investments by national, regional or international organization covering a part of damage caused in the third country to the foreign investor by political risks coming, which can be economically negatively reflected on the investments. The term "political risks" covers all illegal or discriminatory actions committed by any host state, as well as by its structural divisions, which counteract realization by the proprietor of his rights concerning investment property or deprive him of the opportunities to dispose of it. The political risks are classified into: the risk of expropriation and similar measures, the currency transfer risk, the breach of contract risk, the risk of war and civil disturbance, the risk of insolvency, acts of discriminatory character and the risk of devaluation or depreciation of currency. The article presents the legal characteristic and analysis of the given group of investment risks, as the basic element of the institution of an investment guarantee. Owing to the rather prompt development of the international system of realization of an investment guarantee, the research of the nature of the given institution is becoming increasing by urgent. From the beginning of the sixties within such international economic organizations, as the International Bank for Reconstruction and Development, the Organization of Economic Cooperation and Development, and also UNCTAD and the European Union, discussion was held about the creation of the mechanism of realization of the international investment guarantee. In 1974 at a regional level Inter-Arab Investment Guarantee Corporation was founded. Limiting their operations to the framework of the investments flowing to the Arab countries, the corporation has become the first successful experience of functioning of the international guarantee structure. However, real progress in the development of the institution of the international investment guarantee has been the Convention on Establishment of the Multilateral Investment Guarantee Agency. It has come into force on April 12, 1988 after being signed by 126 state-participants of the World Bank, and also Switzerland. According to the Decision of the Council of Ministers from May 22 of 1992 № 306, the Republic of Belarus joined the number of international economic organizations in the World Bank system, including MIGA. Belarus subscribed to 233 shares of the authorized capital of the Agency. In 1998 the amount of its financial participation in MIGA made up to 2,5 million US dollars. Thus, the Republic of Belarus is the full-fledged member of the given international economic organization, and potentially, it can be one of the major factors of its attractiveness for investment. During ten years of MIGA's successful operation, as the fifth specialized affiliate to the system of IBRD, the number of its participants has extended up to 145 countries (17 are in process of fulfilling of the entry requirements). The total number of beneficiaries from the international guarantee has made about 120 developing countries. Thus, the development of the institution of guaranteeing of investment activity at the international level is quite successful and represents a real opportunity for the world community to achieve stable balance of its political and economic affect.