LEGAL REGULATION OF INVESTMENT RELATIONS

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УДК 346.32 C

Iurii S. Shpinev

PHD in law, Senior Researcher Institute of State and Law of the Russian Academy of Sciences Public agreement and accession agreement: similarities and differences

DOI: 10.24411/2520- 6990-2020-11621 LEGAL REGULATION OF INVESTMENT RELATIONS

Abstract

Based on the analysis of the formation and development of investment legislation, the author States that investment relations are regulated by the norms of both administrative and civil law, offers directions for improving the legislation on investment relations, and concludes that it is necessary to adopt a .single document regulating relations in the field of investment activity.

Today in Russia, in connection with the latest political and economic events of recent years, the issue of lack of investment is more acute than ever. We are talking about direct investments that can bring new technologies, equipment, and knowledge to the Russian economy, as well as portfolio investments that can attract much-needed monetary capital to the country.

In 2017, during a meeting of the state Council devoted to the investment attractiveness of the regions, Russian President Vladimir Putin outlined the increase in investment not only as an economic, but also as a political task that requires immediate solutions. According to the President, increased investment will help create real resources for the development of the social sphere, education, and medicine [1].

According to the President, one of the tasks to achieve this goal is to improve legislation, including in the field of investment relations.

Investment legislation in Russia has come a long way. The first norms of steel appeared in 1991 and were associated with the conclusion in the late 80&s and early 90&s of the last century of bilateral international agreements on the promotion and mutual protection of investment between the USSR and England, Germany, France, the Netherlands, Korea, Canada and other developed foreign countries [2].

In 1991 the first two laws appeared:

- Law on investment activity of the RSFSR of June 26, 1991 № 1531-1;

- Law on foreign investment in the RSFSR of June 04, 1991 № 1545-1.

These laws regulated investment relations in all areas of the economy, and were, as far as possible, universal investment laws aimed at the effective functioning of the entire national economy of the Russian Federation.

Even though the first investment laws were quite «raw», new regulations governing investment relations were adopted only 8 years later - in 1999.

The law on investment activity of the RSFSR is replaced by Federal law № 39-FZ of February 25, 1999 «On investment activities in the Russian Federation carried out in the form of capital investments». At the same time, the previous law continues to operate to the

present day in the part that does not contradict the new law.

Unlike its predecessor, the scope of application of the new law is limited to investment activities in the form of capital investments.

The report does not need to elaborate on the concept of capital investment, especially since it is defined in the law.

However, it should be noted that the concepts of fixed capital and fixed assets, through which capital investments are determined, differ significantly in various regulations, as well as in accounting and tax accounting [3, 4, 5].

In place of the Law on foreign investment in the RSFSR, Federal law № 160-FZ of July 9, 1999 «On foreign investment in the Russian Federation» was adopted in 1999. This law introduces the concept of foreign direct investment, and thus, for the first time in Russian legislation, all investments are divided into direct and portfolio investments.

The new laws directly remove from the scope of their regulation relations related to the investment of foreign capital in banks and other credit and insurance organizations, as well as non-profit organizations created to achieve a certain socially useful goal, such as educational, charitable, scientific or religious, which are regulated by the legislation of the Russian Federation on non-profit organizations.

It is necessary to agree with the opinion of many scientists that investment legal relations, being in the sphere of business law, are regulated by the norms of both civil and administrative law [6].

Foreign investment has a dual nature of influence on the socio-economic development of the country.

On the one hand, they contribute to obtaining modern and promising technologies, the latest equipment and management experience. In addition, thanks to foreign investment, new product standards are being introduced in the country, new workers are being created, and the prerequisites for socio-economic development are being created.

On the other hand, uncontrolled participation of a foreign investor in the activities of national economic entities can lead to such adverse consequences, when

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all the positive aspects of foreign investment will be reduced to zero. This can be expressed in a decrease in the growth and stability of the national economy, a decrease, or even loss, of the economic and industrial sovereignty of the state, the elimination of strategic industries, and so on.

Thus, the regulation of legal relations with the participation of a foreign investor should be carried out using a set of legal norms of both a dispositive and mandatory nature.

The first should guarantee the protection of the rights and legitimate interests of investors, create conditions for the introduction of modern technologies in the country, and ensure the possibility of applying various tax benefits and guarantees. In other words, they serve to protect and encourage foreign investment.

These rules, which were not burdened with protective barriers, were the first versions of the investment laws on foreign investment in both 1991 and 1999. Both laws contained rules aimed primarily at protecting investors.

Moreover, if the 1991 law on foreign investment, according to the preamble, defines the legal and economic basis for foreign investment, the new law defines the basic guarantees of the rights of foreign investors to investments and the income and profit received from them.

As mentioned above, in order to protect national interests, the state must develop certain requirements, prohibitions and restrictions for allowing foreign investment in strategic areas of the economy. However, such restrictions should be transparent.

And only in 2008, with the adoption of Federal law № 57-FZ of April 29, 2008 «On the procedure for foreign investment in business entities that are of strategic importance for the country&s defense and state security», there were rules containing the necessary requirements, restrictions, prohibitions and liability in relation to the investor.

In compliance with this law, the administrative Code of the Russian Federation was amended to establish administrative liability for offenses in the field of foreign investment, and a Government Commission was established to monitor the implementation of foreign investment in Russia.

This law introduced an administrative procedure for preliminary approval of transactions by foreign investors that may lead to the establishment of control over companies of strategic importance.

However, there are several legal problems in this version of the law. Thus, the law provides for an expanded list of strategic activities that are important for the country&s defense and the state&s defense capability. This list covers almost half of the branches of the Russian economy. In addition, to date, there are no provisions establishing criteria for classifying economic entities as strategic. All this negatively affects the formation of a transparent and favorable investment climate in Russia.

Given that the problem of lack of investment in the Russian economy is quite acute, it is extremely important to eliminate the problems outlined above.

In legal science, opinions have already been expressed about the need to combine various investment projects [7].

In our opinion, the most successful solution would be to combine four laws: The law on investment activity of the RSFSR of June 26, 1991, № 1531-1, Federal law of February 25, 1999, № 39-FZ «On investment activity in the Russian Federation carried out in the form of capital investments» and the Federal law of July 9, 1999. № 160-FZ «On foreign investment in the Russian Federation», Federal law of April 29, 2008 № 57-FZ «On the procedure for foreign investment in business entities of strategic importance for the country&s defense and state security» into a single normative act regulating investment issues. In the process of such a merger, it would be possible to resolve the issues currently existing in the investment legislation.

References