1. Introduction
Understanding the essence and significance of international law is necessary today for a fairly wide range of people, since international law has an impact on almost all areas modern life. The application of international law is an important aspect of the activities of all those who are in one way or another connected with international relations. However, even those lawyers who are not directly involved in international relations periodically encounter regulations international law and should be guided correctly when deciding on such cases. This also applies to investigators in the investigation of economic crimes of international corporations, firms engaged in foreign economic activity or operational units engaged in the fight against terrorism and international crime, and to notaries certifying legal actions relating to foreign citizens located on the territory of Ukraine, etc. d.
The end of the second millennium of the modern era in the history of mankind coincides with the beginning of a new stage in the development of international law. Arguments about the usefulness of international law or doubts about its necessity are replaced by the universal recognition of this legal system as an objective reality that exists and develops independently of the subjective will of people.
The UN General Assembly adopted in 1989 resolution 44/23 "United Nations Decade of International Law". It notes the UN's contribution to promoting "wider acceptance and respect for the principles of international law" and to encouraging "the progressive development of international law and its codification." It is recognized that at this stage it is necessary to strengthen the rule of law in international relations, which requires the promotion of its teaching, study, dissemination and wider recognition. The period of 1990-1999 was proclaimed by the UN as the Decade of International Law, during which there should be a further increase in the role of international legal regulation in international relations.
The topic proposed below - "international economic law" - is interesting in that it allows you to visually understand and trace the principles of economic cooperation between peoples with different customs, traditions, religions, state structure etc.
2. Definition of terms
AGGRESSION - (Latin aggressio, from aggredior - I attack) - in modern international law, any illegal use of force by one power against the territorial integrity or political independence of another power or people (nation) from the point of view of the UN Council.
ANNEXATION (lat. annexio) - forcible annexation, seizure by one state of the entire (or part) of the territory of another state or
OCCUPATION (lat. occupatio, from occupo - I capture, I take possession) -
1) temporary occupation by the armed forces of one state of part or all of the territory of another state, mainly as a result of offensive military operations; 2) in Ancient Rome taking possession of things that do not have an owner, including land plots.
DELIMITATION - the process of determining land and water boundaries by agreement, as a rule, by neighboring states.
DEMARCATION (French demarcation-demarcation) - designation of the state border line on the ground.
OPTION (lat. optatio - desire, choice, from opto - choose) - voluntary choice of citizenship by a person who has reached the age of majority. The right of option is necessarily granted to the population of a territory that passes from one state to another.
3. The concept and subjects of international economic law.
3. 1 International legal regulation of economic, primarily trade, relations between states arose in ancient times. Trade relations have long been one of the subjects of international treaties, and initially freedom of trade relations was recognized as a moral and legal principle. As early as the 2nd century A.D. e. the ancient Roman historian Flor noted: "If trade relations are interrupted, the union of the human race is broken." Hugo Grotius (XVII century) pointed out that "no one has the right to interfere with the mutual trade relations of any people with any other people." It is this principle of jus commercii - the right to free trade (trade is understood in a broad sense) - that becomes fundamental to international economic law.
In the 17th century, the first special international trade agreements appeared. By the twentieth century, some special principles, institutions and international legal doctrines had developed related to the regulation of economic relations between states: "equal opportunities", "capitulations", "open doors", "consular jurisdiction", "acquired rights", "most favored nation" ", "national regime", "non-discrimination", etc. They reflect the contradictions between the interests of free trade and the desire to monopolize foreign markets or to protect the own market.
The emergence of new forms of international economic and scientific and technical cooperation in the nineteenth and twentieth centuries gave rise to new types of contracts (agreements on trade and payments, clearing, transport, communications, industrial property, etc.), as well as the creation of numerous international economic and scientific and technical organizations. This process developed especially rapidly after the end of the Second World War. The UN Charter specifies the implementation of international cooperation in solving international problems of an economic nature as one of the goals (Article 1).
In the second half of the 20th century, special economic integration international organizations emerged in Europe - the European Communities and the Council for Mutual Economic Assistance. In 1947, the first multilateral trade agreement in history was concluded - the General Agreement on Tariffs and Trade (GATT), on the basis of which a special kind of international institution was formed, which now unites more than a hundred states.
3.2 International economic law can be defined as a branch of international public law, which is a set of principles and norms governing economic relations between states and other subjects of international law.
The subject of the IEP is international economic multilateral and bilateral relations between states, as well as other subjects of public international law. Economic relations include trade, commercial relations, as well as relations in the areas of production, scientific and technical, monetary and financial, transport, communications, energy, intellectual property, tourism, etc.
In the modern legal literature of Western countries, two main concepts of the MEP have been put forward. According to one of them, the MEP is a branch of public international law and its subject is the economic relations of subjects of international law (G. Schwarzenberger and J. Brownlee - Great Britain: P. Verlorenvan Temaat - The Netherlands: V. Levy - USA: P. Weil - France: P. Picone - Italy, etc.). The concept that the source of the norms of the MEP is both international law and domestic law can be considered the dominant one in Western literature at present, and the MEP extends its effect to all subjects of law participating in commercial relations that go beyond the borders of one state (A. Levenfeld - USA: P. Fischer, G. Erler, V. Fikentscher - Germany: V. Friedman, E. Petersman - Great Britain: P. Reuter - France, etc.). This second concept is also connected with the theories of transnational law put forward in the West, aimed at equalizing the states and the so-called transnational corporations as subjects of international law (V. Fridman and others).
In the legal literature of developing countries, the concept of "international development law" has become widespread, which emphasizes the special development rights of the poorest countries.
In domestic science, V. M. Koretsky back in 1928 put forward the theory of international economic law as an intersectoral law, including the regulation of international legal (public) and civil law relations. I. S. Peretersky, on the other hand, came up in 1946 with the idea of an international property law as a branch of public international law. Further developments of many domestic scientists went along the path of development of this idea.
The USSR made a significant contribution to the development and approval of many normative acts that underlie the modern concept of the MEP. The USSR was also one of the initiators of the convening in 1964 in Geneva of the UN Conference on Trade and Development, which grew into an international organization (UNCTAD).
3. 3 Based on the understanding of the MEP as a branch of public international law, it is logical to assume that the subjects of the MEP are the same as the subjects in general in international law. States, of course, have the right to directly participate in foreign economic civil law, commercial, commercial activities. A "trading state", while remaining a subject of international law, can also act as a subject of the national law of another state, for example, by concluding a deal with a foreign counterparty subject to its foreign jurisdiction. This, however, does not in itself deprive the State of its inherent immunities. To waive immunities (including jurisdictional, judicial-executive) the express will of the state itself is required.
4. Sources of international economic law
4. 1. The sources of the MEP are the same as in general in public international law. A characteristic for the MEP, which is still in its infancy as a special branch of law, is the abundance of recommendatory norms that have their source of decision international organizations and conferences. The peculiarity of such norms is that they are not imperative. They not only "recommend", but also communicate legitimacy, in particular, to such actions (inaction) that would be illegal in the absence of a recommendatory norm. For example, the 1964 UN Conference on Trade and Development adopted the well-known Geneva Principles, which, in particular, contained a recommendation to provide developing countries with exemption from the most favored nation principle of preferential customs benefits (customs tariff discounts). Such benefits would be unlawful in the absence of an appropriate recommendatory norm.
The foregoing determines the fact that the MEP occupies a special position in the general system of international law. Experts write that the IEP is of paramount importance for the formation of institutions that govern the international community, and for international law in general. Some even believe that "ninety percent of international law in one form or another is essentially international economic law" (Professor J. Jackson, USA). This assessment may be exaggerated. Nevertheless, practically all branches of international law are indeed connected with the MEP. We saw this when considering human rights. An increasing place is occupied by economic problems in the activities of international organizations, diplomatic missions, in contract law, in maritime and air law, etc.
The role of the IEP is drawing the attention of a growing number of scientists to it. The computer of the United Nations Library in Geneva provided a list of relevant literature published in the last five years in different countries ah, which formed a solid pamphlet. All this prompts to pay additional attention to the MEP, despite the limited volume of the textbook. This is also justified by the fact that both scientists and practicing lawyers emphasize that ignorance of the MEP is fraught with negative consequences for the activities of lawyers serving not only business, but also other international relations.
The MEP object is extremely complex. It covers diverse types of relations with significant specifics, namely: trade, financial, investment, transport, etc. Accordingly, the MEP is an exceptionally large and diversified industry, covering such sub-sectors as international trade, financial, investment, transport law.
Russia's vital interests, including security interests, depend on the resolution of these problems. Indicative in this regard is the State Strategy for Economic Security approved by Decree of the President of the Russian Federation of April 29, 1996 N 608 Russian Federation". The strategy reasonably proceeds from the need to "effectively realize the advantages of the international division of labor, sustainable development of the country in the context of its equal integration into world economic relations." The task was set to actively influence the processes taking place in the world that affect the national interests of Russia. security, it is practically impossible to solve any of the tasks facing the country, both domestically and internationally. "The importance of law in solving the tasks set is emphasized.
The current state of the world economy poses a serious danger to the world political system as well. On the one hand, there is an unprecedented increase standard of living, scientific and technological progress in a number of countries, and on the other - poverty, hunger, diseases of most of humanity. This state of the world economy poses a threat to political stability.
The globalization of the economy has led to the fact that its management is possible only through the joint efforts of states. Attempts to solve problems taking into account the interests of only some states give negative results.
The joint efforts of states must be based on the law. The IEP performs important functions of maintaining a generally acceptable regime for the functioning of the world economy, protecting long-term common interests, counteracting attempts by individual states to gain temporary advantages at the expense of others; serves as a tool for mitigating contradictions between the political goals of individual states and the interests of the world economy.
The IEP promotes predictability in the activities of numerous participants in international economic relations and thereby contributes to the development of these relations, the progress of the world economy. Concepts such as the new economic order and the right to sustainable development have become essential for the development of the MEP.
New economic order
The world economic system is characterized by the decisive influence of the most developed industrial countries. It is determined by the concentration in their hands of the main economic, financial, scientific and technical resources.
Equalization of the status of foreigners with local citizens in economic activity impossible, as it would jeopardize the national economy. Suffice it to recall the consequences of the "equal opportunities" and "open doors" regimes common in the past, which were imposed on dependent states.
There is also a special regime, according to which foreigners are granted the rights specifically stipulated in the law or in international treaties, and, finally, preferential treatment, according to which especially favorable conditions are granted to the states of one economic association or neighboring countries. As already mentioned, the granting of this regime to developing countries has become a principle of international economic law.
State in international economic law
In the system of regulation of international economic relations, the central place is occupied by the state. In the economic field, he also owns sovereign rights. However, their effective implementation is possible only if the economic interdependence of the members of the international community is taken into account. Attempts to achieve economic independence in isolation from the community (autarky) are known in history but have never been successful. World experience shows that the maximum possible economic independence is real only with the active use of economic ties in the interests of the national economy, not to mention the fact that without this there can be no question of the state's influence on the world economy. The active use of economic ties presupposes the corresponding use of international law.
The MEP as a whole reflects the laws of a market economy. However, this does not mean limiting the sovereign rights of the state in the economic sphere. It has the right to nationalize this or that private property, it can oblige citizens to repatriate their foreign investments when national interests so require. So, for example, did Great Britain during the world wars. The US did this in peacetime, in 1968, to prevent further depreciation of the dollar. All investments abroad are considered part of the national treasure.
The question of the role of the state in a market economy has become particularly acute in our time. The development of economic ties, the globalization of the economy, the reduction of border barriers, i.e. liberalization of the regime, gave rise to a discussion about the fall of the role of states and legal regulation. Talk began about a global civil society, subject only to the laws of economic expediency. However, both authoritative scientists and those who are practically involved in international economic and financial relations point to the need for a certain order and purposeful regulation.
Economists often compare the Asian "tigers" with the countries of Africa and Latin America, referring in the first case to the success of a free market economy focused on active external relations, and in the second - to the stagnation of the regulated economy.
However, upon closer examination, it turns out that in the countries South-East Asia The role of the state in the economy has never been downplayed. The success was due precisely to the fact that the market and the state did not oppose each other, but interacted for common purposes. The state contributed to the development national economy, creating favorable conditions for business activity within the country and outside it.
We are talking about a state-directed market economy. In Japan, they even talk about a "plan-oriented market economic system." It follows from what has been said that it would be wrong to throw overboard the experience of planned economic management in the socialist countries, including the negative experience. It can be used to determine the optimal role of the state in the national economy and foreign relations.
The question of the role of the state in a market economy is of fundamental importance for determining its role and functions in international economic relations, and, consequently, for clarifying the possibilities of the MEP.
International law reflects the trend towards expanding the role of the state in regulating the world economy, including the activities of private individuals. Thus, the Vienna Convention on Diplomatic Relations of 1961 fixed such a function of diplomatic representation as the development of relations in the field of economy. The institution of diplomatic protection exercised by the state in relation to its citizens is essential for the development of economic ties.
The state can directly act as a subject of private law relations. The form of joint ventures of states in the field of production, transport, trade, etc. has become widespread. The founders are not only states, but also their administrative-territorial divisions. An example is a joint company established by the border regions of two states for the construction and operation of a bridge across a border reservoir. Joint ventures are commercial in nature and subject to the law of the host country. Nevertheless, the participation of states gives their status some specificity.
The situation is different when the unlawful activity of the corporation is connected with the territory of the state of registration and falls under its jurisdiction, for example, in the case of tolerance of the state authorities to the export of goods, the sale of which is prohibited in it because they are dangerous to health. In this case, the state of incorporation is responsible for not preventing the illegal activities of the corporation.
As for private companies, they, being independent legal entities, are not responsible for the actions of their state. True, there are known cases of imposing liability on companies as a response to a political act of their state. On this basis, for example, Libya nationalized American and British oil companies. This practice has no legal basis.
Companies owned by the state and acting on its behalf enjoy immunity. The state itself is responsible for their activities. In international practice, the question of the civil liability of the state for the debt obligations of a company owned by it and the responsibility of the latter for the debt obligations of its state has repeatedly arisen. The solution to this issue depends on whether the company has the status of an independent legal entity. If she has, then she is responsible only for her own actions.
Transnational corporations
V scientific literature and the practice of this kind of company is called differently. The term "transnational corporations" is dominant. However, there is increasing use of the term "multinational companies" and sometimes "multinational enterprises". In domestic literature, the term "transnational corporations" (TNCs) is usually used.
If the above concept is aimed at withdrawing TNC contracts from the scope of domestic law by subordinating them to international law, then another concept is designed to solve the same problem by subordinating contracts to a special third law - transnational, consisting of "general principles" of law. Such concepts are contrary to both domestic and international law.
The TNC makes extensive use of means to corrupt the officials of the host country. They have a special "bribery" fund. Therefore, states should have laws providing for the criminal liability of state officials and TNCs for illegal activities.
In 1977, the US passed the Foreign Corrupt Practices Act, making it a crime for US citizens to give a bribe to any foreign person in order to win a contract. Companies from countries such as Germany and Japan took advantage of this, and with the help of bribes to officials in the host countries, they won many lucrative contracts from American companies.
In 1996, the Latin American countries that suffered from this practice entered into an agreement on cooperation in the eradication of dirty government business. The agreement qualifies as a crime giving and accepting a bribe when concluding a contract. Moreover, the treaty established that an official should be considered a criminal if he became the owner of funds, the acquisition of which "cannot be reasonably explained on the basis of his legitimate income during the performance of his (administrative) functions." It seems that a law with a similar content would be useful to our country. Supporting the treaty as a whole, the US withdrew, citing that the latter provision was contrary to the principle that a suspect is not required to prove his innocence.
The problem of transnational corporations also exists for our country.
First, Russia is becoming an important field for TNC activity.
Secondly, the legal aspects of TNCs are relevant to joint ventures that are associated both with the states in which they operate and with third-country markets.
The Treaty on the Establishment of the Economic Union (within the framework of the CIS) contains the obligations of the parties to promote "the creation of joint ventures, transnational production associations ..." (Article 12). A number of treaties have been concluded to develop this provision.
Of interest is the experience of China, in which the process of transnationalization of Chinese enterprises was significantly developed in the late 1980s. Among developing countries, China ranked second in terms of investment abroad. At the end of 1994, the number of branches in other countries reached 5.5 thousand. The total amount of property of Chinese TNCs abroad reached 190 billion dollars, the lion's share of which belongs to the Bank of China.
The transnationalization of Chinese firms is explained by a number of factors. In this way, a supply of raw materials is ensured, which is not available or is scarce in the country; the country receives currency and improves export opportunities; advanced technology and equipment arrives; economic and political ties with the respective countries are being strengthened.
At the same time, TNCs pose complex challenges in the field of public administration. First of all, there is the problem of controlling the activities of TNCs, most of whose capital belongs to the state. In order to succeed, experts say, greater freedom for corporate leadership, support, including the issuance of laws favorable for investments abroad, and increased professional level personnel of both TNCs and the state apparatus.
In conclusion, it should be noted that, using their influence on states, TNCs seek to increase their status in international relations and gradually achieve considerable results. Thus, the report of the Secretary General of UNCTAD at the IX Conference (1996) speaks of the need to provide corporations with the opportunity to participate in the work of this organization.
In general, the task of regulating the activity of private capital, especially large capital, which is becoming increasingly important in the context of globalization, still needs to be solved. The UN has developed a special program for this purpose. The UN Millennium Declaration provides for the need to provide greater opportunities for the private sector to contribute to the achievement of the goals and implementation of the programs of the Organization.
Dispute Resolution
Dispute resolution is of paramount importance for international economic relations. The level of compliance with the terms of contracts, maintenance of order, respect for the rights of participants depends on this. In this case, we are often talking about the fate of property of great value. The significance of the problem is also emphasized in political international acts. The CSCE Final Act of 1975 states that the prompt and fair resolution of international commercial disputes contributes to the expansion and facilitation of trade and economic cooperation, and that arbitration is the most suitable instrument for this. The significance of these provisions was noted in subsequent acts of the OSCE.
Economic disputes between subjects of international law are resolved in the same manner as other disputes (see Chapter XI). Disputes between individuals and legal entities are subject to national jurisdiction. However, as experience has shown, the domestic courts have not been able to solve the problem properly. Judges are not professionally prepared to deal with complex issues of the IEP, and often turn out to be nationally limited, unbiased. Often this practice caused international complications. Suffice it to recall the practice of American courts, which tried to extend their jurisdiction beyond the limits established by international law.
The agreement contained provisions on most favored nation treatment, non-discrimination, and national treatment. But in general, his tasks were not broad. It was about limiting customs tariffs, which remained at a high pre-war level and served as a serious obstacle to the development of trade. However, under the pressure of life, the GATT was filled with more and more significant content, turning into the main economic association of states.
At regular meetings within the framework of GATT, referred to as rounds, numerous acts were adopted on trade and tariff issues. As a result, they started talking about GATT law. The final stage was the negotiations of the participants during the so-called Uruguay Round, in which 118 states participated. It lasted seven years and ended in 1994 with the signing of the Final Act, which is a kind of code of international trade. Only the main text of the Act is set out on 500 pages. The act contains an extensive set of agreements covering many areas and forming the "legal system of the Uruguay Round".
The main ones are agreements on the establishment of the World Trade Organization (WTO), on customs tariffs, trade in goods, trade in services, and on trade-related intellectual property rights. Each of them is associated with a set of detailed agreements. Thus, the agreement on trade in goods is "associated" with agreements on customs valuation, technical barriers to trade, the application of sanitary and phytosanitary measures, the procedure for issuing import licenses, subsidies, anti-dumping measures, investment issues related to trade, trade in textiles and clothing, products Agriculture and etc.
The set of documents also includes a memorandum on the dispute settlement procedure, a procedure for monitoring the trade policy of participants, a decision to deepen the harmonization of the processes of global economic policy, decision on assistance measures in case of negative impact of reforms on developing countries dependent on food imports, etc.
All this gives an idea of the breadth of the scope of the WTO. Its main goal is to promote economic cooperation between states in the interests of raising living standards by ensuring full employment, increasing production and trade exchange of goods and services, optimal use of sources of raw materials in order to ensure long-term development, protection and conservation environment. This shows that the goals specified in the WTO Charter are of a global and, undoubtedly, positive nature.
In order to achieve these goals, the tasks are set - to achieve greater coherence in trade policy, to promote the economic and political convergence of states through broad control over trade policy, assistance to developing countries and environmental protection. One of the main functions of the WTO is to serve as a forum for the preparation of new agreements in the field of trade and international economic relations. It follows from this that the scope of the WTO goes beyond trade and concerns economic relations in general.
The WTO has a developed organizational structure. The highest body is the Ministerial Conference, which consists of representatives of all member states. It works sessionally, every two years. The Conference establishes subsidiary bodies; makes decisions on all issues necessary for the implementation of the functions of the WTO; provides an official interpretation of the WTO Charter and related agreements.
Decisions of the Ministerial Conference are taken by consensus, i.e. are considered accepted if no one formally declares disagreement with them. Objections during the debate do not actually matter, and it is not easy to speak officially against the will of a large majority. Moreover, art. Article IX of the WTO Charter provides that if consensus is not reached, the resolution may be adopted by a majority. As you can see, the powers of the Ministerial Conference are significant.
The executive body carrying out day-to-day functions is the General Council, which includes representatives of all member states. The General Council meets in sessions between sessions of the Ministerial Conference and performs its functions during these periods. It is, perhaps, the central body in the implementation of the functions of this organization. It manages such important bodies as the Dispute Resolution Authority, the Trade Policy Authority, various councils and committees. Each of the agreements provides for the establishment of an appropriate council or committee for the purpose of its implementation. The decision-making rules of the General Council are the same as those of the Ministerial Conference.
The powers of the Dispute Settlement Authority and the Trade Policy Authority are particularly significant. The first actually represents a special meeting of the General Council, acting as the Dispute Settlement Body. The peculiarity lies in the fact that in such cases the General Council consists of three members who are present.
The procedure for resolving a dispute varies somewhat from agreement to agreement, but in the main it is the same. The main stages: consultations, the report of the investigation team, the appeal, the decision, its implementation. By agreement of the parties, the dispute may be considered by arbitration. In general, the work of the Authority is of a mixed nature, combining elements of conciliation with arbitration.
The Executive Board conducts the day-to-day business of the Foundation. It consists of 24 executive directors. Seven of them are nominated by the countries with the largest contributions to the fund (Great Britain, Germany, China, Saudi Arabia, USA, France, Japan).
When joining the IMF, each state subscribes to a certain share of its capital. This quota determines the number of votes belonging to the state, as well as the amount of assistance that it can count on. It cannot exceed 450% of the quota. The voting procedure, according to the French lawyer A. Pelle, "allows a small number of industrialized states to play a leading role in the functioning of the system."
The World Bank is a complex international education associated with the UN. Its system includes four autonomous institutions subordinate to the President of the World Bank: the International Bank for Reconstruction and Development (IBRD), the International Finance Corporation (IFC), International association Development Agency (IDA), Multilateral Investment Guarantee Agency (MIGA). The overall goal of these institutions is to promote the economic and social development of the less developed members of the UN through the provision of financial and advisory assistance and assistance in training. Within the framework of this common goal, each institution performs its functions.
The International Bank for Reconstruction and Development (IBRD) was established in 1945. The overwhelming majority of states, including Russia and other CIS countries, are its participants. His goals:
- promoting the reconstruction and development of Member States through productive investment;
- encouragement of private and foreign investments by providing guarantees or participation in loans and other investments of private investors;
- stimulating a balanced growth of international trade, as well as maintaining a balanced balance of payments through international investment in the development of production.
The supreme body of the IBRD is the Board of Governors, which consists of representatives of member states. Each of them has the number of votes proportional to the share of the contribution to the capital of the Bank. There are 24 executive directors involved in day-to-day operations, five of whom are appointed by the UK, Germany, USA, France and Japan. The directors elect a president who oversees the day-to-day business of the Bank.
The International Development Association was established as a subsidiary of the IBRD, but has the status of a specialized agency of the UN. Basically, it pursues the same goals as the Bank. The latter provides loans on more favorable terms than ordinary commercial banks, and mainly to repaying states. IDA provides interest-free loans to the poorest countries. Funded by IDA through membership contributions, additional contributions from the richest members, IBRD profits.
The Board of Governors and the Executive Directorate are formed in the same way as the corresponding bodies of the IBRD. Operated by IBRD staff (Russia is not involved).
The International Financial Corporation is an independent specialized agency of the United Nations. The goal is to promote the economic progress of developing countries by encouraging private manufacturing enterprises. V last years IFC stepped up its technical assistance activities. A foreign investment advisory service has been set up. Members of the IFC must be members of the IBRD. Most states participate, including Russia and the CIS countries. The governing bodies of the IBRD are also bodies of the IFC.
Unification of international financial law
The most important role in this area is played by the Geneva Conventions on the Unification of Law Relating to Bills, 1930, and the Geneva Conventions on the Unification of Law Relating to Checks, 1931. The conventions have become widespread and yet have not become universal. They do not include countries of Anglo-American law. As a result, all systems of bills and checks operate in economic relations - Geneva and Anglo-American.
In order to eliminate this situation in 1988, the UN Convention on International Bills of Exchange and International Promissory Notes was adopted (draft prepared by UNCITRAL). Unfortunately, the Convention has failed to reconcile the contradictions and has not yet entered into force.
International investment law is a branch of international economic law, the principles and norms of which regulate the relations of states regarding investment.
The basic principle of international investment law is formulated in the Charter of Economic Rights and Duties of States as follows: each state has the right "to regulate and control foreign investment within the limits of its national jurisdiction, in accordance with its laws and regulations and in accordance with its national purposes and priorities. None the state should not be forced to grant preferential treatment to foreign investment."
Globalization has led to a significant increase in foreign investment. Accordingly, national and international lawmaking in this area has intensified. In an effort to attract foreign investment, some 45 developing and former socialist countries have adopted new laws or even codes on foreign investment over the past few years. More than 500 bilateral agreements have been concluded on this issue. Thus, the total number of such treaties reaches 200, in which more than 140 states participate.
A number of multilateral treaties containing investment provisions have been concluded: the North American Free Trade Agreement (NAFTA), the Energy Charter, etc. The World Bank and the International Monetary Fund in 1992 published a collection containing approximate general provisions relevant laws and treaties (Guidelines on the Treatment of Foreign Direct Investment).
Considering the mentioned laws and treaties, you come to the conclusion that in general they are aimed at liberalizing the legal regime of investments, on the one hand, and at increasing the level of their protection, on the other. Some of them provide foreign investors with national treatment and even free access. Many contain guarantees against uncompensated nationalization and against the prohibition of the free export of currency.
Particularly noteworthy is the fact that most laws and treaties provide for the possibility of considering disputes between a foreign investor and the host state in impartial arbitration. In general, sensing an urgent need for investment, the countries concerned seek to create an optimal regime for foreign investors, which sometimes turns out to be even more favorable than the regime for local investors.
The problem of foreign investment has not been ignored by the legal system of Russia. Certain guarantees are provided to them by the Civil Code of the Russian Federation (Article 235). The Law on Foreign Investments contains mainly guarantees provided by the state to foreign investors: legal protection of their activities, compensation in the event of nationalization of property, as well as in the event of an unfavorable change in legislation, proper resolution of disputes, etc.
Russia inherited from the USSR more than 10 agreements relating to the protection of foreign investment. Many such agreements have been concluded by Russia itself. Thus, during 2001 it ratified 12 agreements on encouragement and mutual protection of investments. All agreements provide for the provision of national treatment. Investments have been granted a regime "ensuring full and unconditional protection of investments in accordance with the standards adopted in international law" (Article 3 of the Agreement with France). The main attention is paid to the guarantee of foreign investments from non-commercial, i.e. political, risks, risks associated with war, coup d'état, revolution, etc.
Russia's bilateral agreements provide for quite high level protection of investments, and not only from nationalization. Investors are entitled to compensation for losses, including lost profits, caused to them as a result of illegal actions of state bodies or officials.
An important investment guarantee is the provisions international agreements on subrogation, which refers to the replacement of one subject by another in relation to legal claims. In accordance with these provisions, for example, the state that has nationalized foreign property recognizes the transfer of rights by the owner to its state. The Agreement between Russia and Finland states that the party "or its competent authority acquires, by way of subrogation, the relevant investor rights based on this Agreement..." (Article 10). The peculiarity of subrogation in this case is that the rights of a private person are transferred to the state and protected at the interstate level. There is a transformation of civil law relations into international public law.
In general, the treaties provide a substantial international legal guarantee for foreign investment. Thanks to them, the violation by the host state of the investment contract becomes an international tort. Contracts usually provide for immediate and full compensation, as well as the possibility of submitting a dispute to arbitration.
Investment agreements are based on the principle of reciprocity. But in most cases, investors of only one side actually use the opportunities provided by them. The party in need of investment does not have significant potential for investment abroad. However, sometimes the weak side can also take advantage of these opportunities. Thus, the German government wanted to seize the shares of the Krupa steel plant belonging to the Shah of Iran so that they would not fall into the hands of the Iranian government. However, this was prevented by an investment protection agreement with Iran.
Thus, we can state the existence of a developed system of regulatory regulation of foreign investment. A significant place in it belongs to the norms of customary international law. They are complemented by treaty rules that improve the efficiency of the system by clarifying general rules and identifying specific investment protections.
This system as a whole provides a high level of protection, including:
- ensuring minimum international standards;
- granting the most favored nation treatment and non-discrimination based on nationality;
- ensuring protection and security;
- free transfer of investments and profits;
- inadmissibility of nationalization without immediate and adequate compensation.
In the face of an intensified struggle for foreign capital investment markets, on the basis of the 1985 Seoul Convention, in 1988, at the initiative of the World Bank, the Multilateral Investment Guarantee Agency (hereinafter referred to as the Guarantee Agency) was established. The overall objective of the Safeguards Agency is to encourage foreign investment for productive purposes, especially in developing countries. This goal is achieved by providing guarantees, including insurance and reinsurance of non-commercial risks for foreign investments. Such risks include a ban on the export of foreign currency, nationalization and similar measures, breach of contract and, of course, war, revolution, internal political unrest. Agency safeguards are considered to be in addition to, not in lieu of national systems investment insurance.
Organizationally, the Agency for Guarantees is connected with the International Bank for Reconstruction and Development, which, as noted, is part of the World Bank system. Nevertheless, the Safeguards Agency has legal and financial independence, and is also part of the UN system, interacting with it on the basis of an agreement. The connection with the IBRD finds expression in the fact that only members of the Bank can be members of the Guarantee Agency. The number of members exceeds 120 states, including Russia and other CIS countries.
The Guarantee Agency's bodies are the Board of Governors, the Directorate (the Chairman of the Directorate is the IBRD President ex officio) and the President. Each Member State has 177 votes plus one more vote for each additional contribution. As a result, a few capital-exporting countries have as many votes as numerous capital-importing countries. The statutory fund is formed at the expense of members' contributions and additional income from them.
The investor's relationship with the Agency for Guarantees is formalized by a private law contract. The latter obliges the investor to pay an annual insurance premium, defined as a percentage of the amount of the insurance guarantee. For its part, the Guarantee Agency undertakes to pay a certain sum insured, depending on the magnitude of the losses. At the same time, claims against the relevant state are transferred to the Agency for Guarantees in the order of subrogation. The dispute is transformed into an international legal one. Noteworthy is the fact that, thanks to the Agency for Guarantees, a dispute does not arise between two states, but between one of them and an international organization, which significantly reduces the possibility of a negative impact of the dispute on the relations of the states interested in it.
Investments in countries with an unstable economic and political system are associated with significant risk. There is a possibility of risk insurance in private insurance companies that require high insurance premiums. As a result, the return on investment decreases, and products lose their competitiveness.
Being interested in the export of national capital, industrial the developed countries created instruments that provide insurance at affordable prices, and the associated losses are compensated by the states themselves. In the United States, these issues are dealt with by a special government agency - the Overseas Private Investment Corporation. Disputes between investors and the Corporation are resolved by arbitration. Some states, such as Germany, provide this kind of opportunity only to those who export capital to countries with which agreements on investment protection have been concluded.
The provision of guarantees at reduced insurance rates is a hidden form of government export subsidies. The desire to soften competition in this area encourages developed countries to seek international means of settlement. The Safeguards Agency mentioned is one of the main facilities of this kind.
Nationalization. The nationalization of foreign property is one of the main problems of investment law. The sovereign power of the state also extends to foreign private property, i.e. includes the right to nationalization. Until the end of World War II, perhaps most jurists denied this right and qualified nationalization as expropriation. This is how the nationalization carried out in Russia after the October Revolution was officially qualified.
Today the right to nationalize foreign property is recognized by international law. However, it is subject to certain conditions. Nationalization should not be arbitrary, it should be carried out not in private, but in public interests and be accompanied by immediate and adequate compensation.
As experience shows, compensation costs the state less than breaking off international economic ties. It is no coincidence that the socialist countries of Central and Eastern Europe did not follow the example of Russia in the nationalization of foreign property.
Disputes are resolved by agreement or arbitration.
In the Fromat case in 1982 by the International Chamber of Commerce, Iran argued that the demand for full compensation effectively invalidated the nationalization law, since the state was unable to pay it. The arbitration, however, determined that such issues should not be decided unilaterally by the state, but by arbitration.
There is a so-called creeping nationalization. Conditions are created for a foreign company that force it to cease operations. Well-intentioned government actions, such as the prohibition to reduce surplus labor, sometimes lead to similar results. In terms of its legal consequences, creeping nationalization is equated with ordinary nationalization.
The possibility of nationalization, subject to compensation for the cost of property converted into state ownership and other losses, is provided for by the Civil Code of the Russian Federation (part 2 of article 235). Federal Law No. 160-FZ of July 9, 1999 "On Foreign Investments in the Russian Federation" resolves the issue in accordance with the rules established in international practice. Foreign investments are not subject to nationalization and cannot be subject to requisition or confiscation, except in exceptional cases provided for by law, when these measures are taken in the public interest (Article 8).
If we turn to Russia's international treaties, they contain special resolutions that limit the possibility of nationalization to the utmost. The Agreement with the UK states that the investments of investors of one of the Parties will not be subject to de jure or de facto nationalization, expropriation, requisition or any measures having similar consequences in the territory of the other Party (clause 1 of article 5). It seems that such a resolution does not completely exclude the possibility of nationalization. However, it can only be carried out in case of public necessity, in accordance with the law, be non-discriminatory and be accompanied by adequate compensation.
In the relations between the CIS countries, the problem of nationalization was resolved by the multilateral Agreement on cooperation in the field of investment activity of 1993. Foreign investments enjoy full legal protection and, in principle, are not subject to nationalization. The latter is possible only in exceptional cases provided for by law. At the same time, "prompt, adequate and effective compensation" is paid (Article 7).
During nationalization, the main issues are related to the criteria for full, adequate compensation. In such cases, it is primarily about the market value of the nationalized property. International practice is generally of the opinion that grounds for compensation arise after nationalization, but will include losses incurred as a result of the announcement of the intention to nationalize.
After the Second World War, agreements between states on the payment of a total amount of compensation in case of mass nationalization became widespread. Such agreements reflected a certain compromise. The country - the source of investments refused full and adequate compensation, the nationalizing country refused the rule of equality of foreigners with local citizens.
As is known, as a result of nationalization after World War II, citizens of the countries of Central and Eastern Europe either did not receive compensation at all, or received much less than foreigners. By agreeing to pay compensation to citizens of foreign states, these countries retained their economic ties, which was essential for their national economy.
Having received the total amount of compensation by agreement, the state distributes it among its citizens, whose property has been nationalized. Such amounts are usually significantly less than the real value of the nationalized property. Justifying this, the state that carried out the nationalization usually refers to the difficult state of the economy as a result of war, revolution, etc. It would be wrong, however, to assume that the practice of agreements on the payment of a total amount in compensation for nationalization and taking into account the plight of the state paying it has become a norm of international law. The problem is solved by agreement of the states concerned.
The nationalization of foreign property also raises questions for third states. How should they treat, for example, the products of an enterprise whose legality of nationalization is disputed? Prior to the recognition of the Soviet government, foreign courts more than once satisfied the claims of former owners regarding the exported products of nationalized enterprises. Currently, the US is actively seeking other countries to recognize the illegal nationalization in Cuba.
International economic law in the relations of the CIS countries
The division of the unified economic system of the USSR by the borders of independent republics gave rise to an urgent need to restore ties on a new, international legal basis. Since 1992, many bilateral and multilateral agreements have been concluded in the field of transport, communications, customs, energy, industrial property, supply of goods, etc. In 1991, most of the CIS countries adopted a Memorandum on joint liability for the debts of the USSR, and the share of each republic in the total debt was determined. In 1992, Russia entered into agreements with a number of republics that provided for the transfer to it of all debts and, accordingly, the assets of the USSR abroad - the so-called zero option.
In 1993, the CIS Charter was adopted, which indicated economic cooperation as one of the main goals in the interests of the comprehensive and balanced economic and social development of the member states within the framework of the common economic space, in the interests of deepening integration. Let us especially note the consolidation of the provision that these processes should proceed on the basis of market relations. In other words, a certain socio-economic system is fixed.
The foregoing gives an idea of the specifics of international economic law in the relations between the CIS countries. It operates in conditions of developing integration.
The supreme bodies of the Economic Union are the supreme bodies of the CIS, the councils of heads of state and heads of government. In 1994, the Interstate Economic Committee was established as a permanent body of the Union, which is a coordinating and executive body. It has the power to make three kinds of decisions:
- administrative decisions, legally binding;
- decisions, the binding nature of which must be confirmed by decisions of governments;
- recommendations.
Within the framework of the Union, there is the CIS Economic Court, established in 1992. It is only responsible for resolving interstate economic disputes, namely:
Additional problems in relations between the CIS countries were caused by the events of 2004-2005. in Georgia, Ukraine and Kyrgyzstan.
A system of integration management bodies has been established: the Interstate Council, the Integration Committee, the Inter-Parliamentary Committee. The peculiarity lies in the competence of the highest body - the Interstate Council. It has the right to make decisions that are legally binding on the bodies and organizations of the participants, as well as decisions that are subject to transformation into national legislation. Moreover, an additional guarantee of their implementation has been created: the parties are obliged to ensure the responsibility of state officials for the implementation of decisions of the integration management bodies (Article 24).
Integration associations of this kind, limited in the number of participants, pave the way for broader associations, and therefore they should be recognized as a natural, resource-saving phenomenon.
At the meeting of the Council of Heads of State - Members of the CIS, dedicated to the 10th anniversary of the Organization, an analytical final report was discussed. Positive results were stated and shortcomings were indicated. The task of improving the forms, methods and mechanisms of interaction has been set. The role of law and other normative means, which need further improvement, is especially emphasized. The issue of ensuring the implementation of the decisions taken is brought to the fore. The task is to continue efforts to harmonize legislation.
Literature: Avdokushin E.F. International economic relations. M., 1997; Boguslavsky M.M. International economic law. 1986; Buvaylik G.E. Legal regulation of international economic relations. Kiev, 1977; Velyaminov G.M. Fundamentals of international economic law. M., 1994; Kovalev A.A. International economic law and legal regulation of international economic activity at the present stage. M., DA Ministry of Foreign Affairs of the Russian Federation, 1998; Korolev M.A. Supranationality from the point of view of international law. - MZHMP, № 2, 1997; Lisovsky V.I. Legal regulation of international economic relations. M., 1984; Lukashuk I.I. International law. Special part. M., 1997; Pozdnyakov E.A. System approach and international relations. M., 1976; Thomas W., Nash J. Foreign trade policy: the experience of reforms. The World Bank. M., 1996; Usenko E.T. Problems of the extraterritorial effect of the national law. - MZHMP, № 2, 1996; Shatrov V.P. International economic law. M., 1990; Shumilov V.M. International economic law. M., 1999; Shumilov V.M. The category of "state interest" in politics and law (system-theoretical and international legal aspects). - Law and politics, No. 3, 2000, p. 4-17; Carreau D., Flory T., Juillard P. Droit international economique. Paris, 1990; Decaux E. Droit international public. Paris, 1997.
1.1. International economic legal order
1. For centuries, international economic relations have remained one of the main forms of human communication. Warfare and the development of trade were the main external functions of the ancient states.
As a result of the international division of labor, certain types of economy were formed: cattle-breeding, agricultural, industrial. In Asia, the economy of the agrarian type was mainly formed, the ancient economy gravitated towards the industrial type, based on iron technology. It is known that in the VI century BC. Athens was the center of handicraft production in the ancient world.
Already with the slave-owning mode of production, a world market arose, which was mainly an inland market: Phoenicia, Ancient Egypt, Greece, Rome traded among themselves and with numerous city-states of the Mediterranean and the Black Sea. Fabrics, perfumes, glass, rice, and spices came from the East.
In the Middle Ages, the intracontinental market grew into an intercontinental one: China traded not only with India, but also with Arabia, South Africa; Venice and Genoa traded with Egypt.
Olive oil, wine, copper, lead, marble, ceramics, wool, handicraft products were exported from the Mediterranean. Slaves, bread, cattle, wool, and hemp were imported.
By the XIV century, commodity flows had developed in the region of Northern Europe, the Baltic Sea. From here, flax, oil, fabrics entered the international market.
Trading operations were closely intertwined with credit-usurious. Banking houses and banks grew out of money changers.
By the end of the 16th century, after the great geographical discoveries (discovery of America), trade became world. The trade turnover expanded due to new goods - tobacco, coffee, cocoa, tea, sugar, silver, gold, etc. The world economy became colonial, i.e. based on an unequal exchange of goods. Portugal, Spain, France were colonial empires. The colonies satisfied the main external strategic state interest - to provide the economy with the necessary resources.
With the industrial revolution in Europe of the 17th century, the industrialization of the Western world, factory engineering began. Antwerp and Amsterdam were considered world centers of trade and credit. Many states began to defend themselves against the import of cheap goods that compete with national goods. Thus, England imposed high duties on the import of finished products.
In the 19th century, England led the world economy, and English industry took the lead. At this time, the implementation of the policy free trade - mutual exemption from customs duties on goods imported into and exported from England.
England entered into bilateral treaties with European states on the mutual granting of the most favored nation treatment and soon took a dominant position in world industry, trade, credit relations, and maritime transport. European states have concluded bilateral treaties with each other on the mutual granting of most favored nation treatment. Russia at that time ranked fifth in the world in terms of industrial development.
The United States in the middle of the 19th century exported mainly raw materials, agricultural products and adhered to a protectionist policy, which was combined with complete freedom to import foreign capital. By the end of XIX - beginning of XX centuries. The United States has become the first industrial country in the world.
In the 20th century, human society has gone through gigantic technological shifts. Scientific and technological progress has changed the structure of industry, the nature of the entire production activity of mankind. The colonial system collapsed. The world has entered the stage of integration processes. The interpenetration of economies was expressed in the intensive cross-border movement of goods, services, investments, and labor. The industrial era began to give way to the informational, post-industrial era.
Currently, in the international division of labor there is a tendency to create a single planetary market for goods, services, and capital. The world economy is becoming a single complex.
2. The national economies of different states are thus interconnected by economic ties, which form international economic relations(IEO).
International economic relations find their practical expression in international trade, monetary, investment and other relations, i.e. in various types of travel resources.
The scale of the modern world economy and international economic relations can be illustrated by the following data. By the end of the 20th century, the total gross domestic product (GDP) in the world amounted to more than 30 trillion. dollars a year, the volume of world trade in goods - more than 10 trillion. dollars. Accumulated foreign direct investment has reached approximately 3 trillion. dollars, and annual direct investments - more than 300 billion dollars.
The share of the United States in world GDP during this period exceeded a quarter of the total indicator, the share in exports was 12%. The share of EU countries in world exports was 43%, Japan - about 10%. The main commodity flows and investment flows are concentrated within the framework of the "triad": USA-EU-Japan
Out of motion goods international trade is taking shape, i.e. paid total turnover. Paid imports and exports of one country are called foreign trade.
The system of legal regulation of interstate economic relations has its own "superstructure" - international economic law (IEP). The IEP is one of the branches of international law.
DEFINITION: International economic law is a system of legal norms governing relations between the subjects of international economic relations in connection with their activities in the field of international economic relations(in trade, financial, investment, labor resources areas).
In this way, object regulation in international economic law are international economic relations - multilateral and bilateral, cross-border movement of resources (in the broadest sense of "resources" - from material to intellectual).
The MEP has its own industries (sub-sectors of SE):
International trade law, which regulates the movement of goods, including trade in services and rights;
International financial law regulating financial flows, settlement, currency, credit relations;
International investment law, within which the movement of investments (capitals) is regulated;
The law of international economic assistance as a set of rules governing the movement of material and non-material resources that are not a commodity in the accepted sense;
International labor law, within which the movement of labor resources, labor force is regulated.
Some of the norms governing international economic relations are included in the international legal institutions traditionally included in other branches of international economic relations. Thus, the regime of maritime exclusive economic zones and the regime of the seabed as the "common heritage of mankind" are established by international maritime law; the mode of the market for services in the field of air transportation - international air law, etc.
3. MEO (in the broad sense of this concept) have, as you know, two levels of relations - depending on the presence public and private elements:
a) relationship public law character between MP subjects: states and international organizations. It is these relations in the field of international economic relations that are regulated by international economic law;
b) economic, civil law ( private- legal) relations between individuals and legal entities of different countries. These relationships are governed domestic law each state, private international law.
In the same time public subjects: states, international organizations - enter not only into INTERNATIONAL legal, but often CIVIL- legal relations.
Very often, especially when it comes to the development of natural resources, the regime for accepting and protecting foreign investment is determined in an agreement between the host state and private foreign investor. In agreements, the importing state, as a rule, undertakes not to take any measures to nationalize or expropriate the investor's property. Such agreements are called "diagonal", and in Western literature - "state contracts".
“Public contracts” (“diagonal agreements”) is a regulated subject domestic law; it is part of domestic law. At the same time, many Western lawyers believe that this is the area of the so-called "international contract law".
4. For international economic relations, the problem has always been relevant immunity states. How should the principle of state immunity operate if the state enters into private law relations, into "diagonal" agreements?
The international legal principle of state immunity is closely related to the concept sovereignty. Sovereignty - this is one of the signs of the state, its inalienable property, which consists in the completeness of the legislative, executive and judicial powers on its territory; in non-subordination of the state, its bodies and officials to the authorities of foreign states in the spheres of international communication.
Immunity state is that it beyond the jurisdiction of the court another state (equal over equal has no jurisdiction). Immunity is enjoyed by: the state, state bodies, state property. Distinguish immunity:
- judicial: the state cannot be brought to court of another state as a defendant, except in cases of its express consent to this;
From preliminary securing of a claim: state property cannot be subjected to coercive measures in order to secure a claim (for example, property cannot be seized, etc.);
From the enforcement of a judgment rendered: state property cannot be subjected to measures of enforcement of a judgment or arbitral award.
Western legal theory has developed the doctrine of "split immunity" ("functional immunity"). Its essence is that the state entering into civil law contract with a foreign physical/legal person to perform the functions sovereignty(construction of the embassy building, for example), has the specified immunities.
At the same time, if the state enters into such an agreement with a private person with commercial purposes, then it should be treated as a legal entity and, accordingly, should not enjoy immunities.
The legal doctrine of the USSR, the socialist countries, and many developing states proceeded from the non-recognition of the doctrine of "split immunity", bearing in mind that even in the economic turnover, the state does not renounce sovereignty and does not lose it. However, in modern conditions, in a market or transitional economy, opposition to the functional theory of immunity is largely meaningless, since economic entities are no longer “state-owned”. The legal policy and position of Russia and the CIS countries should accept (and actually adopted) the doctrine of "split immunity", which will contribute to a favorable legal investment climate, the entry of these countries into the legal field of regulation of the IER.
5. States, interacting in international economic relations, enter into legal relations, bear legal rights and obligations. Of the many legal relationship formed international economic order.
The following circumstances have a significant impact on the international economic legal order:
a) in economic relations between national economies, two trends are constantly opposing - liberalization and protectionism. Liberalization is the removal of restrictions on international economic relations. Currently, within the framework of the World Trade Organization (WTO), a multilaterally coordinated reduction of customs tariffs is being carried out with the aim of their complete elimination, as well as the elimination of non-tariff regulatory measures. Protectionism is the application of measures to protect the national economy from foreign competition, the use of tariff and non-tariff measures to protect the domestic market;
b) on legal status a particular state in the MEO system affects the degree of influence of the state on the economy - the economic function of the state. Such impact can range from direct participation in economic activity to different levels state regulation economy.
So, in the USSR, the entire economy was state-owned. In the foreign economic sphere, there was a state monopoly on foreign economic activity: foreign economic functions were carried out through a closed system of authorized foreign trade associations. Such a market instrument for regulating imports as a customs tariff was not of decisive importance in a planned, state-owned economy.
In countries with a market economy, the state does not interfere in the economy so totally, its intervention takes the form of state regulation. All subjects of economic activity have the right to carry out foreign economic relations. The main instrument for regulating foreign economic relations is the customs tariff (along with non-tariff measures).
The deep basis of the various approaches of the state to the management of the sphere of foreign economic activity (FEA) were radically opposite views on essence state and its role in society.
The modern world economy is based on the principles of a market economy. The international economic legal order, therefore, is designed for the interaction between market-type states. The states that were socialist in the past (about 30 states), making the transition from a planned, state, economy to a market economy, received a special status "states with economies in transition".
The balance between market mechanisms of international economic relations and state regulation of the economy is established in the contradictions between liberalization and protectionism.
6. Everything about which states enter into legal relations is subject legal relations. Subject contract legal relations of individuals in the field international economic relations can be: goods, services, finance (currencies), securities, investments, technologies, property rights (including intellectual property), other property and non-property rights, labor force, etc.
Subject interstate - public - legal relations in the field international economic relations, are usually legal modes trade, access of goods to the domestic market, market protection, principles of trade settlements, the use of tariff and non-tariff measures to regulate foreign trade, import / export, control over world prices in commodity markets, regulate trade flows, transport goods, the legal status of individuals engaged in foreign economic activity etc.
7. To address these issues, States use the following methods regulation:
Method bilateral regulation of relations: in trade agreements, agreements on trade or supply of goods, agreements on economic and scientific and technical cooperation;
Method multilateral regulation: a "package" of agreements of the WTO system, including the texts of GATT, GATS, TRIP, as well as multilateral commodity agreements and within the framework of other international organizations (OPEC, etc.) and agreements;
Method supranational regulation; elements of such regulation are used within the framework of international organizations - the WTO, the IMF, etc.;
Method diapositive regulation - with the help of dispositive norms of international law;
Method imperative regulation - with the help of imperative norms of international law.
8. The will of states is directed by state interests. It is they who set the mechanism of the state in motion. States seek to translate their interests into law and thus legalize them. Consequently, public interests are reflected in the norms international economic law
In the scientific literature and in political practice, the term "national interest" is often used as a synonym for the term "state interest".
Interests express way and ways satisfaction of needs. In other words, interest - it attitude to your needs.
The needs of a modern state today cannot be met without interstate cooperation. This means that the objective interest of almost any modern state is to participate in interstate communication, in international economic relations.
The main value, from the point of view of international economic relations, for all leading states today are resources(primarily exhaustible), allowing states to ensure the functioning of their national economies.
It suffices to keep in mind that, for example, exploited oil reserves on earth are left on average for 30 years of consumption (including in Europe - for 15 years, in the Middle East - for 90 years).
Around the main resources, commodity flows, financial flows and commodity / investment markets, the main "struggle of interests" - public and private - unfolds.
Yes, government external long-term strategic interests, for example, the United States, other developed countries in international economic relations are to: manage the process of forming a single world economic space; control sources and cross-border flows of resources, in particular through multilateral organizations and treaties; turn their transnational corporations into a strike force for the development of the world economic space.
Under these conditions, the state external strategic interests of Russia may consist in ensuring the feasible presence of Russia in the international financial, investment, and trade systems; to help their enterprises in their development of the world economic space, to protect their private interests.
From the point of view of the carriers of a particular interest, there are:
State interests (of one state);
Group interests (several states, including states of the same civilizational type);
The interests of the international community as a whole (universal).
Accordingly interests state can be subdivided into:
Interests of internal development (internal);
The interests of the state as a subject of international relations (external).
From point of view subject, State interests are rather conventionally divided into: economic, political, territorial, legal, intellectual (spiritual, sociocultural) etc.
Interests can be distinguished tactical and strategic; long-term, medium-term and short-term; reflected in the law and not enshrined in it.
In international economic relations, interests are legalized and implemented through international economic law.
9. Throughout the 20th century, states ensured their interests force - usually military-political. The international law of the 20th century rested on the "balance strength" between leading states.
In modern international economic relations, state interests are ensured by economic force. States unite in integration groupings, which serve as a tool for securing their interests in law.
This means that power has not left international law, but only changes its form - the world order is increasingly dependent on economic power.
It should be borne in mind, however, that for many countries public interest on a number of issues increasingly coincides with public interest. Environmental, informational problems also give rise to universal interests.
In addition, international law enshrined the institution common heritage of mankind. The common heritage is the resources of the seabed, celestial bodies including the moon. It is possible that Antarctica will also be recognized as the common heritage of mankind. These are the collective resources of human society.
Realization of universal interests requires special methods of regulation. Obviously, the most appropriate method for solving such issues is the method of supranational regulation, the beginnings of which are already present in the system of legal regulation of international economic relations.
Human interests, along with state interests, also (and to an increasing extent) must penetrate into international economic law and be fixed in it.
10. The main problem for the modern economic legal order is the use by states of economic force, economic impact measures based on an independent assessment of legal facts.
Such measures of economic influence and coercion can be applied:
1. as a countermeasure in the event of an offense;
2. as an offense.
It is important to separate some cases of application of measures of economic coercion from others, to correctly qualify the available legal facts.
According to the UN Charter (Article 2), the threat or use of force is prohibited. However, by "strength" I mean armed power. The question of the use of economic force remains unresolved.
V political sphere (in the UN system) there is a body - the UN Security Council - which is called upon to determine the existence of the use of force and make decisions on countermeasures, and in relation to economic no such mechanism exists.
Of course, the UN Security Council has repeatedly resorted to economic sanctions (Southern Rhodesia, South Africa, Iraq, Yugoslavia, Libya, Nicaragua, Dominican Republic, etc.), but each time it was about the application of sanctions in the form of economic sanctions for violations of the UN Charter in the political sphere.
Often, the economic "countermeasures" that states take as measures of responsibility are the misuse or disproportionate use of economic force. In practice, such application of economic measures of influence can be considered as a violation of the principle of non-intervention in the internal affairs of the state.
As measures of influence are used: the cessation of food aid supplies, the cessation of lending, the curtailment of economic cooperation programs, the denunciation of economic agreements, etc.
Sometimes the use of economic measures of influence and coercion can develop into economic aggression or be comparable in its result to armed actions.
Therefore, in the system of international economic relations, the issue of creating a system of international economic security is still relevant. It is proposed, for example, along with the already existing UN Security Council, to create the UN Economic Security Council.
11. Legally, the ban on the use of economic force in the MEP stems from a number of international acts: UN General Assembly resolution 2131/XX 1965 on the inadmissibility of interference in the internal affairs of states and the protection of their independence and sovereignty; Declaration on Principles of International Law, 1970; UNGA resolution 3171/XXVIII on permanent sovereignty over natural resources, 1973; Charter of Economic Rights and Duties of States, 1974; UNGA resolution 37/249 on protecting economic relations from the negative consequences of political tensions; resolution UNCTAD-VI 152/VI of 1983 condemning the use of coercive economic measures in the MEA as contrary to the UN Charter and generally accepted norms of the IL; UNGA resolution of 20.12. 83 "Economic measures as a means of political and economic coercion against developing countries", etc.
In 1931 and 1933 The USSR made proposals to the UN to adopt a protocol on economic non-aggression. The main provisions of this protocol were later included in the Soviet draft definition of aggression, although UN General Assembly resolution 3314/XXIX of 1974 limited itself to the definition of armed aggression only.
When defining the concept of "aggression" in the UNCLOS by the USSR, it was proposed to include in the definition measures of economic pressure that violate the sovereignty of another state, its economic independence and threaten the foundations of life of this state, preventing the exploitation of natural resources, the nationalization of these resources, as well as economic blockade.
At the 40th session of the UN General Assembly in 1985, at the initiative of the USSR, the resolution "International economic security" was adopted, and in January 1986 the Government of the USSR adopted the Memorandum "International economic security is an important condition for the improvement of international economic relations." In the same years, a Soviet draft definition of economic aggression was presented to the UN.
12. The idea of reforming and restructuring international economic relations has also been expressed in the concept of the "new international economic order" (NIEO) put forward by developing countries.
At the VI special session of the UN General Assembly in 1974, the Declaration on the Establishment of a New International Economic Order and the Program of Action on the Establishment of a New International Economic Order were adopted.
In 1979, the UN General Assembly adopted a resolution "Unification and progressive development of the principles and norms of international law relating to the legal aspects of the new international economic order."
To a large extent, interstate economic relations are built taking into account these documents (for example, between the EU and developing countries within the framework of the Lomé conventions).
Thus, in the modern international legal order, states face a twofold task:
1 . to ensure by legal means the maintenance and development of the system of international economic relations, the stability of the rule of law, the balance of the economic space;
2 . ensure the lawful application of coercive measures of an economic nature within the framework of the institution of international responsibility.
13. It is necessary to dwell separately on the method supranational regulation in international economic relations. The phenomenon of supranationality takes place in some international organizations, when they get the opportunity to oblige states with their specific actions (decisions), without enlisting their consent to this in each individual case, i.e. acquire a certain amount of independent administrative powers in relation to them.
For example, the “supranational” nature of the EU legal order is seen in the right of its bodies to issue direct application authoritative acts binding on member states and their citizens, which have priority over domestic law, and to make decisions by majority vote. At the same time, the functionaries of the EU bodies act in their personal capacity, and are not in the service of the respective state.
A sign of “supranationality” may be, in particular, that:
1 . the internal law of a supranational association becomes the internal law of its members;
2 . the internal law of a supranational association is created by a body that acts legally beyond the control of the member states and makes decisions binding on the states, regardless of the negative attitude towards them from one or more states; at the same time, the relevant issues are completely or partially withdrawn from their jurisdiction;
3 . international officials participating in the bodies of supranational associations act in their personal capacity, and not as representatives of states;
4 . decisions are made by the bodies of supranational associations by a majority of votes, by proportional (weighted) voting and without the direct participation of the countries concerned.
Elements of "supranationality" seem to be embedded in the doctrine of norms jus cogens, in the concept of the seabed as the “common heritage of mankind”, in international justice, in the currently put forward concepts of the “single world currency”, “World Central Bank”, etc.
It is obvious that the method of supranational regulation is already actively used today to manage integration processes, for example, within the framework of the European Union.
14. If we summarize the most characteristic features and trends of the contemporary international economic legal order, the overall picture may look as follows.
First. In the system of legal regulation of international economic relations, the shift of emphasis from the method of bilateral regulation to the method of multilateral regulation has actually been completed. The WTO and other multilateral economic organizations have become the main instruments of legal regulation of the international trade, financial and investment systems.
Second. A large number of issues of the internal competence of states are gradually moving into the international legal sphere of regulation, which means the expansion of the object sphere of international law. This is especially evident in the activities of the WTO, in the sphere of regulation of which the issues of the application of tariff and non-tariff barriers, intellectual property, investment measures, environmental standards, etc. are moving.
Third. In international economic relations, a de facto differentiation of states has developed depending on the level of economic development and on the degree of "market character" of the economy of a particular state. The entire legal system of the WTO, in fact, is designed for states with a market economy, which should mean the legalization of certain discrimination against countries with a non-market economy. Based on the differentiation of states on these grounds, major clashes of state interests are still possible.
Fourth. Both within the WTO and outside the WTO system, there are differentiated legal regimes in different sectors of international economic relations. For example, the WTO system has actually developed world zone free trade in aircraft under the Aircraft Trade Agreement, and outside the WTO system there is a group of so-called international commodity agreements.
Fifth. There has been and is a strengthening of the international legal regime of the IER. Throughout the life of GATT-47, member states were required to ensure that GATT rules were as compatible as possible with domestic law; thus the starting principle was the principle of the priority of domestic law. In the WTO system (in GATT-94), the member states are obliged to bring their internal law in line with the international legal regime in force in the WTO system. Thus, the starting principle is the principle of priority of international legal norms.
Sixth. A large place in the legal regulation of the international economic relations is occupied by the norms of the so-called "soft law", international customary norms, customs, norms of the "grey zone" (semi-legal norms to be eliminated within the time limits stipulated, in particular, in the WTO "package" agreements). All this, on the one hand, gives the necessary flexibility to the existing legal order, on the other hand, weakens the effectiveness of law as a system.
Seventh. In the WTO / GATT system and through international treaties / customs, there was a legalization of preferences granted to each other by states within the framework of economic integration. Integration associations are becoming "locomotives" of economic power in the macro level, while large transnational enterprises (TNCs) have long been the engines of economic power in micro-level. With their help, the existing multilateral balance of state and group interests is being broken and restructured.
Eighth. In international economic relations, the phenomenon of “supranationality” is noticeably manifested. The supranational function of law in the context of the formation of a single world economy is an objective stage in the development of systems of legal regulation. We are talking about the transition from the method of multilateral regulation to the method of supranational regulation. Many supranational elements are inherent in the activities and competencies of the WTO.
Ninth. The main problem in the International Economic Relations is the dominance of the economic power of developed states, this is the indiscriminate application of economic sanctions by states based on their own qualification of legal facts. The beginnings of a solution to this problem are in the WTO in the form of established dispute settlement procedures. However, this is clearly not enough yet.
Tenth. The formation of a single world economic space is taking place against the background of the struggle of state strategic interests of individual states and groups of states. This is the main modern contradiction - between the international division of labor and the state form of existence of modern societies, between the base and the superstructure.
It is natural that all the noted processes and phenomena in the international economic relations are to some extent reflected in international law, rely on it or require their registration in it.
15. It is necessary to distinguish the concept international economic law how industries rights and how academic discipline.
There is a point of view according to which international business relationship, and internal economic relations are regulated by a single system of the so-called international economic law, "world economic law" ( V.M. Koretsky, G. Erler), constructed in this way on the weave public and private elements.
In Russian legal theory, the concept of economic law was first put forward in the late 1920s. XX century V.M. Koretsky
In 1946, I.S. Peretersky proposed the idea of "international public civil law", or "international property law", the subject of which is the economic relations of subjects of international law. This idea underlies the concept of the IEP as a branch of international public rights.
International economic law is a kind of “resource law” that regulates the cross-border movement of various kinds of resources. From this point of view, for example, such a sphere (often singled out as a separate branch of international law), such as “the law of scientific and technical cooperation”, “international technological law” - in its subject matter falls into the cross-border movement of goods, services, financial resources, economic assistance , labor resources. This means that "international technological law" as a branch of international law does not exist, and all these issues are part of the subject of the IEP.
In some textbooks of international law, the structure of international economic law includes: international customs law, international tax law, international transport law, etc.
It seems that both customs law and tax law are, rather, sub-sectors of a new branch of IL that is currently being formed - international administrative law.
At the same time, it should be borne in mind that the most actively developing sector of international economic relations is the sector of trade in services, including transport, insurance, tourism, and banking. In this sense, taking into account the totality of norms regulating certain issues in these sectors of economic activity, today we can already talk about the relevant sectoral or intersectoral international legal institutes, including the institute of "international transport law".
International economic law how academic discipline already at the present time, for practical reasons, it can be built on the principle of a comprehensive course covering the public law and private law aspects of the regulation of international economic relations.
It is also quite justified to expect the appearance on the basis of individual branches and / or institutions of the Ministry of Energy (or on the basis of intersectoral institutes) of independent training courses with a different ratio of public law and private law elements - such as, for example, "international trade law", "international banking law”, “international insurance law”, “international copyright”, etc. All these courses should be perceived as specialized (author's) academic disciplines.
MEP as a science and as an academic discipline began to take shape in Russia on the basis of previous scientific, theoretical baggage in the 80s. XX century. A great contribution to this was made by well-known jurists: A.B. Altshuler, B.M. Ashavsky, M.M. Boguslavsky, V.D. Bordunov, G.E. Buvaylik, G.M. Velyaminov, S.A. Voitovich, A.A. Kovalev, V.I. Kuznetsov, V.I. Lisovsky, M.V. Pochkaeva, B.N. Topornin, G.I. Tunkin, E.T. Usenko, N.A. Ushakov, D.I. Feldman, L.A. Fituni, I.S. Shaban, I.V. Shapovalov, V.P. Shatrov and many others.
Among the foreign lawyers who, to one degree or another, developed the issues of legal regulation of the IER, it is necessary to note the following lawyers: J. Brownlie, P. Weil, D. Vpnyes, M. Viralli, F. Jessep, E. Langen, V. Levy, A. Pelle, P. Picone, Peter Verloren van Themaat, P. Reiter, E. Sauvignon, T.S. Sorensen, E. Ustor, V. Fikent-scher, P. Fischer, M. Flory, V. Friedman, G. Schwarzenberger, G. Erler and many others.
Guidelines for studying the topic:
understand : concept, principles and sources of international economic law. Types of economic agreements (trade, credit, settlements, taxation, investment, scientific and technical cooperation, etc.) Multilateral commodity agreements and their features.
International economic organizations of a universal nature. Legal personality of international monetary and credit organizations (IMF, IBRD, IFC, IDA, etc.). Legal status of the World Trade Organization (WTO). United Nations Commission on International Trade Law (UNCITRAL). United Nations Conference on Trade and Development (UNCTAD).
Explore issues of legal regulation of economic cooperation between states at the regional level. North American Free Trade Agreement (NAFTA). Agreement on the Establishment of the European Economic Area (EES), Regional Agreements on Customs Cooperation. Legal status of regional economic organizations(EU, EFTA, EurAsEC, etc.)
Literature:
- Altshuler, A.B. International currency law / A. B. Altshuller. - M., 1984.
- Bogatyrev, A.G. Investment law / A. G. Bogatyrev. - M., 1992.
- Boguslavsky, M.M.. International economic law / M. M. Boguslavsky. - M., 1986.
- Velyaminov, G.M. Fundamentals of international economic law / G. M. Velyaminov. - M., 1994.
- Voitovich, S.A. Principles of international legal regulation of interstate economic relations / SA Voytovich. - Kiev, 1988.
- Evseeva, A.I. Regional economic integration within the framework of the CIS: features of legal regulation / AI Evseeva // Russian Yearbook of International Law. 2000. - St. Petersburg, 2000.
- Ushakov, N.A. Most favored nation treatment in interstate relations / N. A. Ushakov. - M., 1995.
- Shatrov, V.P. International economic law / V. P. Shatrov. - M., 1990.
- Shumilov, V.M. International economic law: textbook. allowance. In 2 volumes / V. M. Shumilov. - M., 2002.
- Shumilov, V.M. International economic law in the era of globalization / V. M. Shumilov. - M., 2003.
Questions on the topic under study:
Form of control: group consultation
Summary lectures:
- Concept, sources and principles of international economic law.
International economic - a set of principles and norms governing relations between states and other entities in the field of economic cooperation.
This area covers wide range interrelations of trade, production, scientific and technical, transport, financial, customs, etc. International economic relations are implemented in the form of: purchase and sale of goods and services (export-import operations), contract work, technical assistance, transportation of passengers and goods , granting credits (loans) or obtaining them from foreign sources ( external borrowings), solving issues of customs policy.
In international economic law, there are sub-sectors covering specific areas of cooperation, international trade law, international industrial law, international transport law, international customs law, international monetary and financial law, international intellectual property law, etc.
An essential specific feature of international economic relations is the participation in them of entities that are different in nature.Depending on the subject matterthe following varieties can be distinguished: I ) interstate - universal or local, including bilateral, character; 2) between states and international organizations (bodies); 3) between states and legal entities and individuals belonging to foreign states, 4) between states and international economic associations; 5) between legal entities and individuals of different states.
The heterogeneity of relations and their participants gives rise tothe specifics of the applied methods and means of legal regulation,testifying to the interweaving in this area of international public and international private law, the interaction of international legal and domestic norms. It is through international regulation of economic cooperation that states influence civil law relations with a foreign (international) element. The most important factor determining the content of international economic law areintegration "processesat two levels, nom (global) and regional (local)
An important role in integration cooperation is played byinternational organizations and bodiesamong which the most influential are the UN Economic and Social Council (ECOSOC), the World Trade Organization (WTO); International Monetary Fund (IMF), International Bank for Reconstruction and Development (IBRD).
At the regional and interregional levels, it should be noted the European Union, the Organization for Economic Cooperation and Development
(OECD), the Commonwealth of Independent States (CIS), the Eurasian Economic Community (Eurasian Economic Community), and the UN regional economic commissions.
Sources of international economic laware as diverse as regulated relationships. The universal documents areconstituent acts of relevant international organizations, General Agreement on Tariffs and Trade 1947, UN Convention on Contracts for the International Sale of Goods 1980, Convention on the Limitation Period in the International Sale of Goods 1974. UN Convention on the Carriage of Goods by Sea 1978 d., various agreements on commodities. Bilateral treaties make a great contribution to the formation of international economic law. The most common are agreements on the international legal regime of economic relations, agreements regulating the movement of goods, services, capital across state borders, payment, investment, credit and other agreements.
Among the fundamental factors that determine the relationship between states in the economic sphere are the principles of economic cooperation, i.e. establishing the type of legal regime applicable to a particular state, its legal entities and individuals.
There are the following modes (principles):
Most favored nation treatmentmeans the obligation of the state to provide (as a rule, on the basis of reciprocity) to another state party to the agreement the benefits and privileges that are granted to them or may be granted in the future to any third state. The scope of this regime is determined by the agreement and can cover both the entire sphere of economic relations and certain types of relations. Certain exceptions are allowed from the most favored nation treatment in respect of customs unions, free customs zones, integration associations, developing countries and border trade.
Preferential treatmentmeans the provision of benefits in the field of trade, customs payments, as a rule, inagainst developing countries or within the framework of an economic or customs union.
National Treatmentprovides for equalization incertain rights of foreign legal entities and individuals with the state's own legal entities and individuals. This usually concerns issues of civil legal capacity, judicial protection, and social rights.
special mode,established by states in the field of economic cooperation, means the introduction of any special rights of the day for foreign legal entities and individuals. This regime is used by states when regulating such issues as increased protection of foreign investments, provision of customs and tax benefits to missions of foreign states and employees of these missions when purchasing and importing certain goods.
2. International organizations in the field of regulation of economic cooperation.
Within the framework of international economic law, the role of interstate organizations is determined by the fact that, firstly, these are forums for discussing the most important economic problems; secondly, it is a permanent mechanism that provides states with the prompt solution of increasingly complex issues of international economic life; thirdly, it is a qualified apparatus for developing draft economic treaties, especially multilateral ones that have a universal, regional or local character. International organizations do not have independent economic interests; all their activities are aimed at developing economic cooperation between states.
The first place among international organizations in terms of its importance is occupied by the United Nations with its extensive system of bodies and organizations.These issues are dealt with in the Organization by the General Assembly (GA) and the Economic and Social Council (ECOSOC). The General Assembly organizes studies and makes recommendations to states to promote international cooperation in the economic, social and other fields (Article 13 of the UN Charter). The General Assembly exercises leadership functions in relation to ECOSOC. Its recommendations to the Council are binding (Articles 60 and 66 of the Charter). The UN General Assembly establishes at each session for a preliminary discussion of the agenda the Committee on Economic and Financial Affairs (Second Committee).
An important subsidiary (permanent) body of the UN General Assembly is the Commission on International Trade Law (UNCITRAL). Its main function is to promote the unification of the law of international trade. The United Nations International Law Commission is of some importance (for example, in developing the issue of most favored nation treatment).
ECOSOC, as the main body of the UN, responsible for the performance of its functions in the field of international economic and social cooperation, coordinates the activities of bodies and institutions of the UN system. An important place in the activities of ECOSOC is the preparation of draft international conventions for submission to the General Assembly for approval.
ECOSOC has subsidiary bodies, including the Committee for Program and Coordination; Committee on Science and Technology for Development; Natural Resources Committee; Development Planning Committee.
Under the leadership of ECOSOC, there are five regional economic commissions:
— the United Nations Economic Commission for Europe (ECE) includes
European and post-Soviet member states of the UN, as well as the United States and
Canada; headquarters in Geneva;
- Members of the United Nations Economic and Social Commission for Asia and
Pacific Ocean (ESCAP) are the states of Asia (except the Arab countries
Western Asia), Oceania, as well as the UK, USA and France; headquarters-
apartment in Bangkok
- The United Nations Economic Commission for Africa (ECA) consists of African states; headquarters in Addis Ababa;
— The United Nations Economic Commission for Western Asia (ECWA) unites the Arab states of Western Asia, Egypt, it also includes the Palestine Liberation Organization; headquarters in Amman;
Members of the United Nations Economic Commission for Latin America and
Caribbean (ECLAC) are the Latin American states, and
also UK, Netherlands, Spain, Canada, USA and France; headquarters-
apartment in Santiago.
Other countries, as well as international organizations, may cooperate in these commissions as associate members, observers or consultants. The objectives of the activities and functions of the listed commissions are similar: promoting the economic development of the countries of the respective regions, raising the standard of living of their population, promoting economic relations both between member countries and between them and the rest of the world. The organizational structure of the commissions is similar. The supreme body is the plenary session of the representatives of the Member States. There are also permanent and temporary subsidiary bodies. The executive body is the secretariat headed by the executive secretary. The commissions hold international conferences, meetings, etc.
Each commission has an extensive network of specialized subsidiary bodies (committees). Directly or through these subsidiary bodies, the commission maintains links with international organizations, both regional and universal.
One of the important functions of ECOSOC is to coordinate the activities of specialized UN agencies, many of which deal with issues of international economic cooperation. This is primarily the United Nations Industrial Development Organization (UNIDO), which in 1985 received the status of a specialized agency of the UN. It coordinates UN activities in this area to accelerate the industrialization of developing countries. Within the framework of UNIDO, for example, the Lima Declaration and the Action Plan for Industrial Development and Cooperation (1975) were developed, which affirm the right of states to sovereignty over natural resources and control over the activities of private capital.
International Food and Agriculture Organization (FAO) and International Fund for Agricultural Development (IFAD), World Organization intellectual property (WIPO), financial institutions(IBRD, IMF, IFC, MAP).
Created as a subsidiary body of the UN General Assembly, the United Nations Conference on Trade and Development (UNCTAD) has retained this name since its first session in 1964, although it has long grown into an independent authoritative organization with numerous subsidiary bodies. The main task of UNCTAD is to define the principles and policies in the field of international trade in order to help accelerate economic development, especially in developing countries. UNCTAD made a great contribution to the formation of new ideas and concepts about the fundamental restructuring of international economic relations on a fair and democratic basis.
The International Monetary Fund (IMF) and the International Bank for Reconstruction and Development (IBRD) - the largest international monetary and credit organizations - were created on the basis of agreements adopted by the Bretton Woods Conference (USA) in 1944. The IMF and IBRD are specialized agencies of the UN, they have agreements on relations with the UN (1947). However, unlike other agreements that define the principles and forms of interaction and coordination between the General Assembly, ECOSOC and a specialized agency, these agreements fix a significant degree of independence of the IMF and IBRD from the UN.
According to the 1944 agreement, the main objectives of the IMF are to coordinate the monetary and financial policies of member countries and provide them with loans (short-term, medium-term and partly long-term) to adjust balance of payments and maintain exchange rates. The Fund also seeks to promote international cooperation in the monetary field and the expansion of trade. To achieve these goals, the Fund provides funding to member countries experiencing balance of payments difficulties and provides them with technical assistance to improve their business practices. Member States undertake to cooperate with the Fund and among themselves in order to ensure the conclusion of agreements on an orderly exchange of exchange and the establishment of a stable system of exchange rates, along with a multilateral system of settlements free from restrictions, and thus contribute to the balancing of payments between countries.
The provision of loans in excess of a certain amount is conditional on the implementation of IMF recommendations in the field of economic and social policy. The competence of the Fund also includes consideration of issues related to the exchange rate regime of member countries.
The voting power of each member country of the IMF in its supreme body reflects mainly its contribution to the financial resources of the Fund, which in turn is related to its relative share in the world economy (the principle of weighted voting).
the main objective IBRD - to promote the reconstruction and development of the territories of member states by encouraging investment for industrial purposes. The main task of the IBRD is to stimulate private foreign investment through the provision of guarantees or through direct participation, as well as to promote international trade and maintain balance of payments.
The Bank provides medium-term and long-term loans at a fairly high interest rate. Loans are given to member states of the Bank, as well as their private companies. Where loans are made to private companies, the government of a Member State of the Bank concerned must give appropriate guarantees. In recent decades, the IBRD's financial policy has focused mainly on developing countries. the main role it deals with the export of capital, the stimulation of private entrepreneurship in developing countries, and the implementation of programs of economic assistance to these countries.
In order to regulate trade relations between states in 1947, a multilateral General Agreement on Tariffs and Trade (GATT) was concluded. GATT is the largest multilateral trade agreement, on the basis of which over the past years a mechanism has developed that has the features of an international organization. On the basis of this agreement, the World Trade Organization (WTO) began to operate in 1995. (In the Republic of Belarus, a commission has been established under the Government for accession to the WTO).
Central to the WTO is the principle of most favored nation treatment. Under the agreement, any customs-tariff benefit granted by one of the participating countries to another participating country was automatically extended to all other WTO member countries by virtue of the most favored nation principle.The main tasks of the WTO are the liberalization of foreign trade, the reduction of customs tariffs, the rejection of quantitative restrictions on imports, the elimination of discrimination, and the holding of other trade and political events on a multilateral basis.
For regulationinternational trade in selected commoditiesmultilateral agreements were concluded and a number of international organizations were created with the participation of importing and exporting states (for tin, wheat, cocoa, sugar, natural rubber, olive oil, cotton, jute, lead and zinc) or only exporters (for oil - OPEC). The goals of organizations involving exporting and importing countries are to mitigate sharp fluctuations in world prices, establish a balanced supply and demand relationship by fixing quotas and obligations of importers for the purchase of goods by exporting countries, setting maximum and minimum prices and creating systems of "buffer" stocks of goods.
The most significant example of an organization of exporting countries (mainly Arab) is the Organization of Petroleum Exporting Countries (OPEC), which has the task of protecting the interests of oil-producing countries by agreeing on acceptable oil prices and limiting oil production to quotas established for each country for this purpose.
Among the international organizations formed to promote international trade and important for the development of the IEP, one can name the International Chamber of Commerce, the International Bureau for the Publication of Customs Tariffs, the International Institute for the Unification of Private Law (UNIDROIT). As well as within UNCITRAL, the International Chamber of Commerce and UNIDROIT are doing a lot of work to harmonize and unify national legislation governing commercial and financial relations between entrepreneurs through the development of international legal acts of optional action. An example is the widely used international rules interpretations of trade terms "Incoterms" developed by the International Chamber of Commerce.
In 2000 Within the framework of the CIS, an Agreement was concluded on the establishment of the Eurasian Economic Community (Belarus ratified it in 2001). The organization includes Russia, Belarus, Kazakhstan, Uzbekistan, Kyrgyzstan, Tajikistan, Armenia (membership coincides with the CSTO). The main goal is to ensure the principles of freedom of movement of goods and services, capital and citizens; creation of an economic and customs union.
The concept and subjects of international economic law. International economic law is a branch of international law, the principles and norms of which regulate interstate economic relations.
Modern international economic relations are a highly developed complex system that combines heterogeneous in content (object) and subjects, but closely interacting types of social relations. The unprecedented growth in the importance of international economic relations for each country is due to objective reasons. The trend towards the internationalization of public life has reached a global scale, covering all countries and all major spheres of society, including economic.
An essential specific feature of international economic relations is the unification into a single system of relations that are different in subjective structure, causing the use of various methods and means of legal regulation. There are two levels of relations: first, relations between states and other subjects of international law (in particular, between states and international organizations) of a universal, regional, local nature; secondly, relations between individuals and legal entities of different states (this includes the so-called diagonal relations - between the state and individuals or legal entities belonging to a foreign state).
International economic law regulates only relations of the first level - interstate economic relations. States establish the legal basis for the implementation of international economic relations, their general regime. The bulk of international economic relations is carried out at the second level: by individuals and legal entities, so the regulation of these relations is of paramount importance. They are governed by the national law of each state. A special role belongs to such a branch of national law as private international law. At the same time, the norms of international economic law play an ever-increasing role in regulating the activities of individuals and legal entities, but not directly, but indirectly through the state. The state influences the norms of international economic law on private law relations through a mechanism enshrined in national law (for example, in Russia it is paragraph 4 of article 15 of the Constitution of the Russian Federation, article 7 of the Civil Code of the Russian Federation and similar norms in other legislative acts).
The foregoing testifies to the deep interaction of the two systems of law (international and national) in the regulation of international economic relations. This gave rise to the concept of international economic law, which combines international legal and national legal norms governing international economic relations, and a broader concept of transnational law, which includes all norms governing relations that go beyond the borders of the state, into a single system of law.
Sources and principles of international economic law. Sources of international economic law: international treaties: multilateral (UN Charter; Charter of Economic Rights and Duties of States, 1974; Human Rights Covenants, 1966; Declaration on the Establishment of a New International Economic Order, 1974); bilateral (trade, credit, payment relations, on the provision of technical assistance, etc.; on trade, on merchant shipping, on scientific and technical cooperation, etc.) international customs and habits.
Principles of international economic law: inalienable sovereignty of the state over its natural resources; freedom of choice of forms of organization of foreign economic relations; economic non-discrimination; economic cooperation; most favored national treatment; reciprocity.
International economic law as a whole reflects the laws of a market economy. However, this does not mean limiting the sovereign rights of the state and reducing its role in the economic sphere. On the contrary, there is a complication of the tasks of managing economic processes, which leads to an increase in the role of the state and, consequently, to an increase in the possibilities of international economic law in the development of both the national economy and the world economy as a whole.
Resolution of international economic disputes. The growing importance and complexity of international economic relations make it necessary to strengthen their management by the joint efforts of states through international organizations, which leads to an increase in the number of international organizations and their role in the development of economic interstate cooperation. As a result, international organizations are important subjects of international economic law. The fundamental basis of international economic organizations is the same as that of other international organizations. But there are also some specifics. In this area, states tend to give organizations more regulatory functions. Resolutions of economic organizations play an important role, supplementing legal norms, adapting them to changing conditions, and, where they are absent, replacing them. In some organizations, there are rather rigid mechanisms for the implementation of decisions made.
The specificity of the resolution of international economic disputes is associated with the heterogeneity of international economic relations. Economic disputes between states are resolved on the basis of international law, like other interstate disputes. But since international economic cooperation is carried out mainly in the relationship between individuals of different states, the resolution of disputes between them is of great importance for the stability and efficiency of the international economic system.
Disputes between individuals and legal entities of different countries are subject to national jurisdiction. They can be considered by the courts (of general jurisdiction or arbitration) of states or by international commercial arbitration (ICA). Participants in international economic relations prefer the ICA.
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