Uzbekistan's New Bilateral Investment Treaty Standpoint: In Case of Uzbekistan-Turkey bit (2018) by F. Muminov and J. Górski About tdm tdm
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Uzbekistan s New Bilateral Investment Tr
Party.” Prima facie, this provision seems to provide unrestricted admission. However, the reference to domestic laws and regulation implies that 1) the non-discrimination clause can be only applicable once the investment is established in accordance with art 4.2 of Uzbekistan-Turkey, and 2) this provision is symbolic and non-operable. Indeed, most of foreign investment projects are subject to a screening procedure under Uzbekistan’s law, 6 as they are considered vital for the national economy and public interest. From host country’s point of view, the purpose of admission’s restrictions and controls is to maximize the benefit of foreign investment to the host country and to minimize potential adverse impact of foreign investment. To this end, the host country aims to any fine-tune prospective benefits and mitigate negative externalities of foreign investment in the procedure of screening. 7 Evidently, legal consequences of the wording subject to its laws and regulation are not unlike of in accordance with tested before investment tribunals. If so, foreign investment shall be established in the context of the host country’s law. This approach is coherent with investment case laws. The tribunal in Mytilineos Holdings SA v s Serbia ruled that the BIT itself does not require registration of investments. Rather, it covers 4 Amokura Kawharu, ‘The Admission of Foreign Investment under the TPP and RCEP’ (2015), 16 Journal of World Investment and Trade 1058-1088, 1062. 5 Uzbekistan- Bangladesh BIT (2001) art. 2(1); Uzbekistan-China BIT (2001) art 2(1); Uzbekistan-Finland BIT (1993) art 2(1); Uzbekistan-Hungary BIT (2003) art 2(1); Uzbekistan-Indonesia BIT (1997) art 2(1); Uzbekistan- Austria BIT (2001) art 2(1). 6 According to the Regulation on a Procedure for Elaboration, Examination and Approval of Documentation of Investment Project these foreign investments are subject to screening procedure: 1. Investment projects in the framework of the formation of portfolios of projects and the execution of state development programs of the Republic of Uzbekistan; 2. Financed by the Fund for the Financing of State Development Programs of the Republic of Uzbekistan under the Cabinet of Ministers of the Republic of Uzbekistan, the Fund for Reconstruction and Development of the Republic of Uzbekistan, loans (loans) attracted by the Government of the Republic of Uzbekistan or under its guarantee; 3. Implemented on the basis of individual decisions of the President of the Republic of Uzbekistan, providing for the provision of privileges on taxes and other obligatory payments; 4. Implemented in accordance with production sharing agreements; 5. Implemented by state bodies, economic management bodies, economic entities with a state share in the authorized capital (capital) of 50 percent and more than economic entities, in the authorized capital (capital) of which 50 percent or more belongs to a legal entity with a state share of 50 percent or more; 6. Providing for the extraction and / or processing of strategic minerals, regardless of sources of financing. See the Russian version of regulation 7 Muthucumaraswamy Sornarajah, ‘International Investment Agreements: Admission and Establishment, Legal Standards of Treatment’ (2000) 26 Commonwealth Law Bulletin 614-622, 618. 4 investments made “in accordance with/consistent with the legislation of the host State”.” 8 In turn, in Tokios Tokeles vs Ukraine, the tribunal provided a more detailed explanation of reference to “in accordance with law.” Specifically, the tribunal noted that foreign investor activity was in the scope of investment under BIT and such investment was not illegal under the laws of the host state. The tribunal further suggested that minor registration irregularities are acceptable as long as it is considered as a legal investment. 9 Breaches of applicable law could occur at different stages of investment, such as pre- establishment of investment or after investment and could subsequently thwart investors’ claims. For example, the tribunal in Download 0.6 Mb. Do'stlaringiz bilan baham: |
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