FORMATION OF THE RIGHTS OF PARTICIPANTS IN THE CROSS-BORDER INVESTMENT PROCESS IN THE 19TH AND FIRST HALF OF THE 20TH CENTURIES

Abstract

Introduction. The refusal of foreign investors to fulfill their previously assumed obligations in the Russian Federation as a result of sanctions restrictions on the one hand, and the infringement of the rights of Russian capital abroad on the other, have exacerbated the problem of creating effective international regulation of the cross-border investment process and the balanced nature of the powers of participants in such relations. Meanwhile, such a conflict is not new, Latin American states had to go through something similar in the last and the century before that. In this regard, a retrospective analysis of the experience of these countries allows, in our opinion, not only to optimize the domestic investment legislation of the Russian Federation, but also to form a more balanced international cooperation of our country in this area. It is precisely aspects of this kind of problem that this study is devoted to. Methods. The research is based on the application of logical, historical, dialectical techniques and methods of scientific knowledge, comparative legal and legal-technical analysis of texts of normative acts. Analysis. The analysis of the legal regulation of international investment relations was carried out on the basis of consideration of the process of creating and improving minimum civilized and national standards for such activities, in the context of the appearance of the Monroe, Calvo and Drago doctrines, as well as their subsequent transformation in the work of the Permanent Court of International Justice, established by the League of Nations. Results. The conducted research allowed us to draw several final conclusions. First, the opposition in the international community during the 19th and first half of the 20th centuries between advocates of investor rights and defenders of the rights of the recipient country led to the development of a compromise version of the minimum standard of civility in cross-border investments. Some elements of such rules remained at the level of ordinary norms, some of them were fixed either in unified agreements or were confirmed by judicial practice. Generalized versions of such a standard can be reduced to three rules: (1) compliance with the principle of legality, namely: the investor must respect and not violate the laws and customs of the host State; and the recipient State is obliged to provide such a person with a legal status not lower than the national regime. Measures affecting the rights of foreign investors should be based on the norms of law and applied on the basis of the procedure established in the law. (2) The recipient State has the right to seize the property of a foreign investor located within its borders on the grounds of nationalization, requisition and confiscation, only in those cases that are fixed in the norms of international law. (3) A foreign investor must have the opportunity to have disputes arising from cross-border investment dealt with fairly and unhindered before the competent court of the State receiving the investment. Only after the complete exhaustion of domestic ways to protect their interests, the investor has the right to apply to the competent international arbitration authorities. Secondly, these rules, against the background of violations of the rights of domestic investors in unfriendly countries and unscrupulous behavior of foreign investors in the territory of the Russian Federation, as a result of the military conflict between Russia and Ukraine, look quite topical. Therefore, the issue of forming a single unified agreement (or several similar agreements) on the level of effective regulation of the international investment process and protection of the rights of its participants is currently relevant.