Инвестиционный кодекс Республики Беларусь: правовые аспекты становления инвестиционного климата

Abstract

The Investment Code of the Republic of Belarus (hereinafter — the IC) is coming into force on October 9, 2001. The Code specifies main features of the investment climate of the Republic and, at the same time, contains some innovations, which cannot be perceived unambiguously. Analysing the IC, the author comes to the conclusion about the forthcoming considerable centralization of the investment process, namely — the reinforcement of control functions and the intensification of the participation of the State authorities in it. The administrative system, which accompanies the investment activity, slightly varies by subjects, i.e. the President of the Republic of Belarus accumulates most of significant functions related to the investment procedure. He is entitled to take most of decisions on incentives, guarantees, etc. concerning both foreign and national investors. The Government was vested with more fragmentary functions. The role of the municipal powers in the investment process was not determined in the IC, which is fraught with some uncertainty. Article 79 of the IC is targeted to secure the predictability of the investment climate. Therefore, it states that any unfavorable changes should not be applied to the investor during a five-year period. In the meantime the IC does not specify any criterion for qualifying such changes as unfavorable. Thus, the realization of this norm can be complicated.The proposed change of the form of the "venture with foreign investments" to the "organization with foreign investment", as well as the "joint venture" and "foreign venture" to the "commercial joint organization" and "commercial foreign organization" (art.80 of the IC) does not very much promote the factor of stability of the investment climate. It also remains unclear, if this change causes the statutory documents changes and the official registration later on. One fourth of the IC deals with the State's incentive policy. The number of incentives, which can be granted at the highest State level, has been considerably increased. This indicates a noticeable shift of stress from a 'normative' to a contractual sphere of the investment process. Protection of foreign investments is one of the major components of the investment climate as a whole. It is important to pay attention to the entirely new principle, introduced by the IC, i. e. the unified approach to the national and foreign investments. Generally, the term "investment protection" includes all possible measures aiming to restrain the Host State (any public authority) from interfering in the functioning of the investments. According to the IC, seizure of an alien's property such as nationalization and requisition should be accompanied by the compensation from the State. The IC does not confirm the obligation of the State to refrain from any types of a property seizure; it just points out that only two forms of such seizure can be considered as a ground for compensation. However, more than 20 bilateral investment treaties, which Belarus has concluded with a number of capital exporting countries, contain a provision on expropriation, which should be accompanied by compensation. The term "expropriation" covers any legislative action or administrative action or omission attributable to the host government, which has the effect of depriving an investor of his ownership or control of, or a substantial benefit from his investment. The IC does not touch upon the above-mentioned collision and, in fact, restricts the investor's right for compensation. The IC guarantees repatriation only in relation to (a) the investor's profit and (b) the proceeds from the realization of a property invested. The formulation of a "prompt, effective and adequate" compensation was replaced with "timely and full" compensation without stating any characteristic of such evaluative meanings. It is not quite clear herewith to what extent "full compensation" will replace a guarantee for a non-taxable process of repatriation. Moreover, the IC does not contain the classical guarantee of a due process of law in relation to investment disputes; neither it vests the investor with a right to choose between a national court or arbitration, or international arbitration. Summing up all the above, the author emphasizes that any codification should not affect a specificity of a "sensitive substance" such as foreign investments. It should also be realized that any investment decision taken by foreign investors is much influenced by the level of political, legislative, economical and cultural risks in the Host State. Such risk, in any case, cannot prevail over the financial benefits from such investments. It remains the only condition for the Belarusian to hope to meet the wishes of foreign investors.