Lazarenko M. Protection of property rights of a foreign investor in private international law.

Українська версія

Thesis for the degree of Candidate of Sciences (CSc)

State registration number

0418U005347

Applicant for

Specialization

  • 12.00.03 - Цивільне право і цивільний процес; сімейне право; міжнародне приватне право

11-12-2018

Specialized Academic Board

Д 26.001.10

Taras Shevchenko National University of Kyiv

Essay

The thesis is devoted to the complex research into the questions of protection of property rights of a foreign investor in the international private law. The paper investigates the theoretical basis for the protection of property rights of a foreign investor through the prism of the private international law, provides analysis of the principles of normative legal regulation of foreign investment in Ukraine, and identifies the main elements of protection of property rights of a foreign investor as a subject of the private international law. On the basis of the interdisciplinary approach, there is proposed a better vision of the issues of demarcation of the subject of international private law research and the subject of other legal sciences. The thesis describes the principles of the normative legal regulation of foreign investments in Ukraine and abroad. A special place in the system of legal regulation of foreign investments in Ukraine is occupied by the Law of Ukraine "On International Private Law", which is the main act regulating private law relations that include a foreign element. In addition to acts of the national legislation, bilateral investment and other international treaties ratified by Ukraine also play an important role. The results of the research allowed for assessment of the approaches to conceptual changes in the system of legal regulation of foreign investments and for the formulation of the author’s own proposals to improve the legislation in this domain. The collision issues of protection of property rights of a foreign investor in Ukraine have been investigated, the problems of protection of property rights of foreign investors through the prism of the conflicting provisions of the international private law of Ukraine have been revealed, the characterization of the conflict law of Ukraine in part of protecting the foreign investor's property rights has been improved. The theoretical and practical components of protection means that differ in their nature, namely, jurisdictional and non-jurisdictional, have been described. Particular attention has been paid to the comparative analysis of jurisdictional bodies that are competent to consider disputes with the participation of foreign investors. A distinction has been made between commercial and investment arbitrage, and the differences between them have been outlined. The emphasis is placed on the important role of the International Center for the Settlement of Investment Disputes (ICSID) as the most widespread special means of resolving investment disputes between a foreign investor and the host state, there have been analyzed modern approaches to its reform, and the author’s own position on this issue has been expressed. A number of suggestions have been made regarding amendments to national legislation and international treaties that relate to the provisions governing the confidentiality in the enforcement of decisions of international commercial or investment arbitration, the competence of ICSID and reciprocity in the recognition and enforcement of decisions of the international investment arbitration. According to the results of the study, has been reached a conclusion that jurisdictional remedies for the protection of property rights of a foreign investor in Ukraine are characterized by proper legal and institutional quality and have a considerable potential for further optimization. There have been analyzed the nature of the consideration of complaints concerning the protection of property rights of a foreign investor by administrative bodies, there has been given a comparative characteristic of regulation of such issues in Ukraine and abroad, concrete proposals for their improvement. It is also emphasized that consideration of complaints by administrative authorities may have a quasi-jurisdictional nature, combining the resolution of the dispute between the investor and the lower-level bodies and the features of pre-trial and conciliatory remedies, consisting in the right of a public authority to correct actions or decisions that have violated rights and interests, which would exclude the need for a foreign investor to appeal to national courts or international arbitrations whose jurisdiction is recognized by Ukraine. The thesis analyzes the main non-jurisdictional remedies that can be used by a foreign investor to protect their property rights. It reveals the essence, composition and features of the notion of non-jurisdictional means of self-defense of foreign investor's property rights. The thesis has conducted the analysis of the Institute of Business Ombudsman, its activity in Ukraine and other countries, and described prospects of its development. Mediation has been described as a means that has a considerable potential for using and optimizing the protection of property rights of a foreign investor in the field of investment legal relations with the participation of a foreign element in Ukraine.

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