... Приклад діє сильніше погрози (П. Корнель) ...

Головне меню

Міжнародна науково-практична конференція 12.12.19 - СЕКЦІЯ №3
1. Introduction.
Considering the importance of international cooperation for economic development and the role that private international investments plays in this area, while bearing in mind the probability that from time to time disputes which may arise between States and persons or entities of other States in connection with these investments, become a question how to settle such disputes by peaceful means, as required by the basic principles of international law and jus cogens norms. Arbitration is one of the most effective and optimal ways to resolve this disputes and conflicts which taken place in the investment activity. The main characteristic of the international arbitration institution is the issuance of decisions that are legally binding on the parties to the dispute and the fact that the dispute is settled on the basis of international law.
The international law has two types of international arbitration institution. The first is permanent, it is based on international treaties, treaties between the State and the investor to settle future disputes. The second is ad-hoc which created for a specific dispute resolution. The most well-known institutions of permanent arbitration are PCA, ICSID, LCIA, SCC, ICC ICA, AAA [1].
2. Problem Statement.
Today Ukraine and Ukrainian entities, including state-owned, are participating as a defendant and plaintiff in approximately 30 trials taking place both in the courts of other States and in international arbitrations [2]. The important aspect of attracting foreign investments to the State is concessionary activity, that is attracting leading foreign companies involved in the construction of certain facilities and the exploitation of natural resources. This investors activity is very vulnerable to State violations of its obligations. On this score, disputes between States and investors are constantly being considered in various arbitration institutions.
As for financial sector of the economy, it is necessary to determine the external liabilities of States for securities. As a result of the weak State economic policy, some States are faced with the impossibility of paying their debt securities and declare default on foreign obligations of them. In order to protect their property rights, investors need to apply a request for arbitration. The largest number of the lawsuits, of the above reasons, are considered against such States as the Russian Federation, Argentina, Venezuela, Bolivia, Ecuador, which could negatively affect their investment attractiveness [3; 4].
According to the future privatization of State-owned entities in Ukraine, this topic attracts special attention. After all, foreign investors who will participate in the privatization seeks to have certain guarantees from the State. One of these guarantees is the arbitration clause in the conditions of the contract, which establishes the arbitration institution that will consider the future dispute, as well as other conditions. The second guarantee is the international treaties between States on mutual protection of investments, which establish the procedure for applying to arbitration institutions as a result of investor’s rights violation by the State. Ukraine have more than 50 valid interstate agreements with different countries for mutual protection of investments.
It should also be noted the situation with the Crimea, Donetsk and Lugansk regions. Due to the illegal actions of the Russian Federation, Ukraine, Ukrainian entities and foreign investors have lost a significant amount of property – factories, enterprises, ports and other property. Some of the rightsholders have already started arbitration proceedings against the Russian Federation in order to protect their property rights.
At the same time, the issues of enforcement international arbitration awards have also arisen. Investors are often faced with unfair behavior by States that uses their immunity in the courts of the States where recognition and enforcement of arbitration awards is requested. A typical example is the case of the Yukos [5].
Thus, the necessity to research the best way to protect investments and the enforcement of arbitral awards in the leading countries of the world is a very important issue among a large circle of investors in various sectors of the economy.
3. Objectives and Purposes.
The object of the research is the international legal relations arising from the settlement of disputes between investors and States, State entities in international arbitrations, as well as issues arising from the enforcement of arbitration awards. In particular, the problems of the defendant’s jurisdictional immunity in the enforcement of arbitration awards in the State courts of the United States and Ukraine.
The purpose of the research is to summarize the practice of proceedings in international arbitrations, one of which is the State, State entity and the development of optimal concepts for the protection of investors’ rights, including concepts for the protection of property rights of Ukrainian and foreign entities who have lost their property in the Crimea, Donetsk and Lugansk regions. 
To achieve this goal, the following tasks were set:
– research international treaties that allow to resolve an investment settles with the participation of the State, State entities through arbitration;
– analyze and compare regulations of international arbitration;
– research practice of international arbitrations, such as PCA, LCIA, ICSID, etc., in the trials where involved States, State entities and investors;
– analyze the practice of hiring foreign legal advisers by the Ministry of Justice and other State entities of Ukraine to protect the rights and interests of Ukraine, State entities in international arbitration;
– analyze the practice of applying by parties to the State courts in the United States and Ukraine for obtaining interim measures in support of arbitration proceedings;
– research practice of the UN International Court of Justice as a Persuasive precedent for international arbitration;
– analyze the practice of Ukrainian courts on the recognition and enforcement of international arbitration awards in Ukraine;
– analyze the practice of US courts on the recognition and enforcement of international arbitration awards in the United States;
– explore the using court decisions from different countries in international arbitration proceedings as a prejudice;
– summarize the practice of appealing arbitral awards in State courts by the location of the arbitration;
– based on this analysis, develop theoretical concepts of the best way to protect the rights and interests of investors in international arbitration, which can be applied in practice.
4. Methodology.
The research approach and methodology in summary will be focused on international law, regulations of international arbitrations, statistical information, governmental documents, literary sources, judicial practice of State courts of Ukraine, United States; practice of international arbitrations like ICSID, LCIA, PCA, AAA, etc.; practice of the International Court of Justice; practice of recognition and enforcement of foreign arbitral awards by competent State bodies and the issues of State immunity.
The literature review component of research will consist of reading and analyzing library resources in Scientific Library of Odessa National University, Odessa National Scientific Library, Library of Odessa Regional Institute for Public Administration of the National Academy for Public Administration under the President of Ukraine, Library of Odessa National Economic University, Vernadsky National Library of Ukraine, Scientific library of the National University «Odessa Law Academy».
5. Expected results and output. 
The novelty of scientific research is that for the first time in Ukraine a comprehensive research will be carried out on the settlement of disputes in various arbitration institutions, where the State, State entities are one of the parties, in particular necessity of making certain changes in the Ukrainian legislation for the protection of investors’ rights to improve the investment attractiveness of Ukraine.
The practical and theoretical results of the expected scientific research are creating concepts of the best way to protect the rights and interests of investors in international arbitration, as a plaintiff and a group of plaintiffs, based on the analysis, can be used in practice, in particular, to protect Ukrainian and foreign investors property rights who have lost their property in the Crimea, Donetsk and Lugansk regions.
Also, the results of the research can be used:
– in science for further research of best dispute resolution methods, in particular in joint research projects with foreign and Ukrainian universities;
– in the national courts practice for recognition and enforcement arbitration awards for more effective rights protection;
– in the activities of the Ministry of Justice, the National agency of Ukraine for finding, tracing and management of assets, the National Anticorruption Bureau, the State Bureau of Investigation, etc., to involve international legal advisers for the rights and interests of Ukraine and State entities protection in foreign jurisdiction;
– in improving the current legislation – civil, economic, judicial, executive, general provisions on the protection of investors’ rights.

References:
1. Types of International arbitration. URL: https://en.wikipedia.org/wiki/International_ arbitration.
2. Міністерство юстиції України. URL: https://minjust.gov.ua/m/ogoloshennya-schodo-peregovornoi-protseduri-zakupivli-yuridichnih-poslug-u-2018-rotsi. 
3. PCA Case Repository. URL: https://pcacases.com/web/.
4. Renae Merle - How one hedge fund made $2 billion from Argentina’s economic collapse URL: https://www.washingtonpost.com/news/business/wp/2016/03/29/how-one-hedge-fund-made-2-billion-from-argentinas-economic-collapse/. 
5. Yukos vs. Russia. URL: https://www.italaw.com/cases/1175. 
 
 

Add comment


Security code
Refresh


-
English French German Polish Romanian Russian Ukrainian
2020
May
MoTuWeThFrSaSu
    123
45678910
11121314151617
18192021222324
25262728293031
Національний розвиток держави і права повинен ґрунтуватися, у першу чергу, на:
 
На Вашу думку чи забезпечують реалізацію принципу верховенства права законодавчі реформи 2019 року?
 
Система Orphus
Повну відповідальність за зміст опублікованих тез доповідей несуть автори, рецензенти та структурні підрозділи вищих навчальних закладів та наукових установ, які рекомендували їх до друку.

Лічильники і логотипи

Актуальна Юриспруденція