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‘
ABSTRACT
In this article, modern investment legislation is considered on the basis of legal acts regulating
investment activity. The state of the investment climate in the country is summarized with judicial
practice. In addition, in the scientific work has been analyzed the features and differences of the
previous legislation of the Law of the Republic of Uzbekistan “On Investments and Investment
Activities”.
Furthermore, based on the results of the study, several proposals were recommended to improve
legislation and practice of the Investment Activities in the Republic of Uzbekistan, the implementation
of legal norms and to ensure effective protection of investors' rights.
KEYWORDS
Economic Growth, Investment, Investment Agreement, Investment Visa, Investment Subsidy,
Integration Of States, Mediation.
INTRODUCTION
Today’s globalization and the processes of
integration of states into the global economy
directly depend on the factors of attracting
investment into the country’s economy and
creating a favorable investment climate for
investors. To this end, it is necessary to ensure
the stability of investment processes – the
improvement of legal norms and mechanisms
for regulating investment relations on the part
of states.
In the world, as a result of the COVID-19
pandemic, there has been a sharp decline in
Modern Investment Legislation And Judicial Practice Are The
Legal Guarantee Of Effective Reforms
Zaynobiddinova Farangiz Baxtiyor Qizi
PhD Candidate, University Of World Economy And Diplomacy, Uzbekistan
Journal
Website:
https://theamericanjou
rnals.com/index.php/ta
jpslc
Copyright:
Original
content from this work
may be used under the
terms of the creative
commons
attributes
4.0 licence.
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global flows of foreign direct investment.
According to the analysis [1], these resources,
which are important for the economy of the
countries, recorded a sharp drop of $ 1.5 trillion
compared to the level of 2019. This, in turn, is a
serious blow to developing countries,
especially in this situation, which negatively
affects the production of export-oriented
products
and
the
implementation
of
investment projects in important sectors of the
economy.
The issues of maintaining an effective
investment policy in our country, increasing
the share of private and direct investments in
the economy, reducing external borrowing on
behalf of the state, attracting more private
capital to investment and infrastructure
projects are recognized as an important area of
state policy. In addition, special attention is
paid to economic growth in our country, first of
all, the creation of competitive production
chains and the achievement of such projects
through increased investment [2].
It is worth noting that the development of
investment relations directly connects them
with the issues of contractual and legal
regulation. Because the contract is the most
common form of attracting investment.
Therefore, an in-depth scientific analysis of the
issues of contractual regulation of investment
relations plays an important role in alleviating
the negative consequences of the pandemic,
ensuring the legitimate interests and rights of
investors, attracting investment in large
sectors of the economy and small businesses.
Because even in our country, at the beginning
of the COVID-19 pandemic, there was a decline
in economic activity, a decrease in domestic
and external demand. The main factor in the
slowdown in economic growth was the decline
in investment and consumer activity due to the
termination of the activities of a number of
sectors of the economy. In Uzbekistan, there is
a need to take important and effective short-
term measures in connection with this
situation. In this regard, in order to prevent the
threats of coronavirus against our country, the
President and the Cabinet of Ministers have
issued special regulatory documents.
METHODS
In science, several scientific studies have been
conducted on the issues of contractual and
legal regulation of investment activity, but
most of them paid more attention to
investment policy and economic aspects of
investment activity. Some issues of investment
law, contractual and legal regulation of
investment activity were considered in the
scientific works of scientists of our country -
B. Samarkhodjaev, O. Akyulov, S. Gulyamov, N.
Imamav, I. Rustambekov, B. Ochilov.
In particular, in the scientific works of
B.Samarkhodaev [3], the concept, essence and
principles of investment law, investment and
legal relations, the concept and features of an
investment contract are widely analyzed. O.
Okyulov [4, P.236] analyzed in detail the
assessment, examination and monitoring of
investment funds and their legal status, as well
as investment projects. N. Imomov [5, P.323]
studied the essence of investment contracts,
the concept of concession agreements and
product distribution agreements in his
research. S.Gulyamov [6] investigated the
issues of international and national law, the
problems of legal regulation of foreign
investment. I. Rustamekov [7] studied
important aspects of the formation of a
favorable business and investment climate in
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our country, the importance of International
commercial arbitration in the settlement of
investment
disputes
under
investment
contracts, as well as issues related to the
consideration of cases by the International
Center for the Settlement of Investment
Disputes. B.Ochilov [8] analyzed in detail the
legal acts regulating investment activity in the
Republic of Uzbekistan, issues of improving
legislation in this area, as well as contractual
and legal forms of attracting investment in the
mining sector of the economy.
Within the framework of the CIS, this topic was
discussed by I. Lunts,
N. Voznesenskaya, V. Lisitsa, A. Mingazova, Yu.
Potapova, I. Vdovin, A. Bogatyrev, D.
Ratnikova,
B.
Muravyev,
I.Sevolnikova,
O.Segelnik, A. Bogatyrev, I. Andreyanova,
A.Shevchenko. In particular, in the scientific
works of I. Sevolnikova [9], A. Shevchenko [10]
and A. Mingazova [11] the issues of the system
of civil law contracts regulating investment
activities, their features and elements are
studied in detail.
Specific problems of contractual regulation of
investment activity in foreign countries in
Europe: L. Constanta, L. Kotula, S. Christoph, G.
Andrew and in the USA: R. Dolzer, T. Alli, K.
Toni, K. Peinhardt, M. Sornaraja, A. Blaine
Research. In particular, the scientific works of
C. Richard [12], R. Dolzer [13], T. Alli,
K. Peinhardt [14], Lorenzo Kotula [15] studied
the methods and principles of legal regulation
of investment activity and the issues of
concluding bilateral investment agreements.
Despite the fact that many aspects of the legal
regulation of investment activity are covered in
the legal literature, there is not a single
independent research work devoted to the
disclosure of the features of the contractual
and legal regulation of this activity, the essence
of investment contracts. Also, the study did not
attach sufficient importance to the issues of
elements of civil law contracts regulating
investment activities. This situation indicates
that the sphere of contractual and legal
regulation of investment activity has not been
sufficiently studied.
RESULTS
In recent years, there have been many reforms
in the field of investment activities. The
legislative norms in this area have been revised,
the normative legal documents have been
improved. For instance, consistent measures
are also being taken to radically improve and
reform the investment policy, introduce
modern effective approaches and mechanisms
for its implementation, accelerate the
investment process and improve the business
environment as a whole. In particular, ensuring
the implementation of the Action Strategy for
the five priority areas of development of the
Republic of Uzbekistan for 2017-2021 [16], in
addition, in order to enforce the tasks set by
the President of the Republic of Uzbekistan in
his appeals to the Oliy Majlis of the Republic of
Uzbekistan on January 25 and December 29,
2020 [17], “The year of active investment and
social
development”,
“The
year
of
development of science, education and the
digital economy”, as well as “the year of youth
support and public health promotion”– many
tasks were set to ensure macroeconomic
stability, create the necessary conditions for
healthy competition, radically improve the
business and investment climate, seriously
reduce the state’s participation in the
economy, increase the return on investment,
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accelerate the attraction of investment in all
sectors of the economy.
Furthermore, in order to continue an active
investment policy, actively attract investment,
including foreign direct investment, for the
implementation of strategic and important
investment projects for the technical and
technological
re-equipment
of
existing
production and the organization of new high-
tech production, taking into account the
measures taken to ensure the effective
development and rational use of available
resources, as well as, in order to ensure their
level and quality of life, targeted programs
were developed within the framework of the
decree of the President of the Republic of
Uzbekistan “On measures to radically improve
the investment climate in the Republic of
Uzbekistan” [18] dated August 1, 2018, “On
measures to implement the investment
program of the Republic of Uzbekistan for
2019” [19] and “On measures to implement the
investment program of the Republic of
Uzbekistan for 2020-2021” [20].
In addition, on December 25, 2019, the main,
special document was adopted aimed at
regulating investment activities in our country
- the Law of the Republic of Uzbekistan "On
Investments and Investment Activities" [21]
(hereinafter referred to as the Law).
This law is aimed at regulating relations in the
field of investments and investment activities
carried out by foreign and local investors, and
is the only document combining the main
provisions of the laws of the Republic of
Uzbekistan "On investment Activity", "On
guarantees of the rights of foreign investors
and measures to protect them" and "On
foreign investment". This law is also notable
for the fact that investment relations are
regulated by more specific norms, guarantees
of investors' rights are increased and additional
requirements are established regarding the
content of investment contracts [22, P.97]. We
can also note the following differences and
features of the law from previous regulatory
legal acts:
The legal status of local and foreign
investors was established, in particular, the
concept
of
local
investors
was
strengthened; additional rights were
granted to foreign investors. This,
according to the expert B. Legum, is also an
important situation, thanks to which the
main subjects of investment activity and
their rights are additionally explained [23].
Foreign investors have the right to obtain a
residence permit and an "investment visa",
including on the conditions stipulated by
the decisions of the President of the
Republic of Uzbekistan, in accordance with
the terms of the validity of the" investment
visa", their family members can also have
the right to reside. Also, the conditions for
foreign investment cannot be more
unfavorable and the state guarantees a
stable investment climate, equal and fair
conditions for all investors.
The
procedure
for
concluding
an
investment
agreement
with
the
Government of the Republic of Uzbekistan
and terminating the contract, the terms of
the contract and the parties, the initiative
to make proposals for concluding this type
of contract and the norms on the
obligations of a foreign state, as well as an
additional requirement were noted.
State support measures have been
established and are currently in accordance
with them: a) Investors can be provided
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with an investment tax credit, investment
subsidies; b) state bodies, diplomatic
missions abroad and consular offices assist
investors
in
obtaining
advice
and
information; C) representative for the
protection of the rights and legitimate
interests of business entities under the
President of the Republic of Uzbekistan.
The legal framework of enterprises with
the participation of foreign investments
has been established, according to which:
the amount of foreign investment in
enterprises is at least fifteen percent (this
requirement is provided for the first time in
an act of the law); property imported by
these enterprises for their own needs is
exempt from customs duty for two years.
A new stage of the dispute resolution
mechanism, strengthened by multilateral
investments. New in accordance with this,
a dispute (investment dispute) arising in
connection with foreign investments and
during the implementation of investment
activities of a foreign investor on the
territory of the Republic of Uzbekistan can
be resolved through the following stages:
I - negotiations;
II - mediation;
III - the relevant court of the Republic of
Uzbekistan;
IV - International Arbitration.
The issues of ensuring guarantees of
investment protection and the rights of
investment entities established by the state are
regulated separately, according to which: the
right of state bodies and their officials to
interfere in activities carried out in accordance
with the investment law; investments and
other assets of investors are not nationalized;
as well as the right of state bodies and their
officials to interfere in activities carried out in
accordance with the investment law.; It was
noted that if subsequent legislation worsens
the conditions for investment, the legislation in
force on the date of investment should be
applied to investors within ten years from the
date of investment.
In addition to analyzing the current investment
legislation in our country, we can study the
practice of investment activity, in particular,
important
aspects
of
concluding
and
implementing investment contracts through
judicial practice in this area.
In particular, within the framework of the
topic, more than 40 court cases were studied
[24], which were considered by the economic
courts of the Republic of Uzbekistan in
connection with investment contracts in
01.2018 – 05.2021, and proposals were
developed to improve the contractual and
legal regulation of the acquisition of
investment disputes.
In particular, the buyer's failure to fulfill
investment obligations under a purchase and
sale agreement concluded on the condition
that investment obligations are included in
judicial practice is considered a serious
violation of the contract, and this situation
becomes the basis for termination of the
contract [25, P.306].
A similar situation took place in the case
considered by the Chust Interdistrict Economic
Court (05.04.2021) No. 4-1603-2102 / 354. He did
not provide monthly information and quarterly
reports on its execution. That is, the fulfillment
of investment obligations in investment
contracts is not enough, the obligations must
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be confirmed by the corresponding tabular
reports.
In the case of the Tashkent Interdistrict
Economic Court (March 16, 2020) No. 4-1001-
2001 / 3971 on early termination of the lease
agreement No. 5956 / 10-18 for the lease of
state property located in a small industrial zone
on the street. condition for accepting the
declared investment obligations. According to
the monitoring of the fulfillment of investment
obligations by the "asset holder", the "lessee"
did not submit a report on the fulfillment of
investment obligations, although he was
obliged to create 5 new jobs, but in practice no
jobs were created. , as well as operation. The
absence of a contract for the provision of
services has been established. The plaintiffs'
representatives also stated that the dispute
was not registered by the state in the manner
prescribed by the treaty.
In case No. 4-1001-2016 / 17717, considered by
the Judicial Collegium on Economic Issues of
the Supreme Court of the Republic of
Uzbekistan in cassation (04.16.2021), the
Chamber of Commerce and Industry of
Uzbekistan filed a statement of claim. The
statement of claim and asked the defendant to
recover in favor of the plaintiff 1,062,016,992
soums of investment costs and 30,873,334
soums of damages.
In turn, in case of termination of the contract
on the initiative of the defendant in clause 10.5,
all investment costs are returned to the
investor at market value (at the market value
of the object) within 30 banking days after
receiving a request from the investor. decided
to give it up. In this case, given that the
contract between the parties was terminated
by a court decision on the initiative of the
defendant, the terms of the contract provide
for reimbursement of costs at market value,
the defendant did not dispute the appraisal
report. That is, the courts came to a well-
grounded conclusion on the recovery of
1,062,016,992 sum.
In case No. 4-1105-2101/84, considered by the
Judicial Collegium on Economic Issues of the
Tashkent Regional Court in the Court of Appeal
(05/04/2021), although the interim periods are
indicated in the investment schedule under the
contract. The court of first instance, without
taking into account the above circumstances
and without demanding the necessary
documents from the plaintiff, imposed a fine
on the plaintiff LLC-defendant in the amount of
120,000,000 sum for non-compliance with the
pre-trial procedure. Settlement of a dispute
(application). It was noted that the refusal to
satisfy the claim for termination of the sale and
purchase agreement No. 370/19-BS was
unreasonable and premature, and the claim
was satisfied. This fact testifies to the
legitimacy of applying to the courts of the next
instance to protect the interests of the
plaintiffs,
recognizing
the
procedural
shortcomings admitted by the courts of first
instance
when
considering
investment
disputes.
We may also find that in some investment
dispute lawsuits, the plaintiff has partially or
completely retracted his promise in court. The
defendant, who did not fulfill his obligations
under the investment agreement on time, in
many cases began to fulfill the terms of the
agreement, having received a summons. Thus,
in our opinion, the inclusion in investment
agreements of a clause that the parties can
resolve disputes through mediation - in many
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cases of conflict - may provide an opportunity
to resolve problems in the pre-trial process.
CONCLUSION
Despite legislation and sustained reforms, each
region of the country, there are still certain
problems in investment activity, the solution of
which will further increase the importance of
research in this area. In particular, according to
some foreign experts, the main obstacles to
the development of this sector in Uzbekistan
are: diversification of the economy and
dependence on commodity prices; low
competitiveness; underdeveloped banking
sector and other factors.
It is worth noting that, in addition to the
introduction of modern investment legislation
into practice, the development of modern
tools for regulating investment activities
currently has a direct impact, in particular, on
reducing corruption risks, improving tools in
the form of possessive norms; establishing
investment regimes that stimulate insignificant
capital investments aimed at innovative
development; there was a need to implement
such reforms as the formation of a favorable
environment conducive to the growth of local
investment, as well as the introduction of a
form of mass fraud before the legislative div
of the executive power for the implementation
of laws aimed at stimulating investment. The
search for a correct and complete solution to
these issues plays an important role in the
modern development of the country's
economy.
In addition, with the analysis of the existing
judicial practice, in particular, on 40 court cases
considered by the economic courts of the
Republic of Uzbekistan in connection with
investment agreements in 01.2018-05.2021, the
following conclusions and recommendations
can be made:
Most investment disputes arise due to the
fact that the parties do not fulfill their
obligations under the contract. In this
regard, it is advisable when signing an
investment agreement, the parties set
specific deadlines for each condition and
legal consequences for the party that has
not fulfilled its obligation during this time
or has not fulfilled its obligation to the
necessary extent in accordance with the
purpose;
Due to the large number of cases of
settlement
of
disputes
under
an
investment agreement from the moment
of going to court to the appointment of a
meeting, taking into account the partial or
complete refusal of the plaintiffs from the
claim, the inclusion of a mediation clause in
contracts may allow disputes to be
resolved quickly in the pre-trial process.
In most cases considered by the economic
courts of the Republic of Uzbekistan, the
claim arose in connection with the delay in
the fulfillment of the defendant’s
obligations. In particular, due to the
announced
quarantine
measures
to
combat the pandemic that has affected the
whole world, and its negative losses, many
investors were unable to invest their
investment capital in a timely manner in
accordance with the agreed contract. In
this regard, the need to make changes to
the timing of the implementation of
individual investment projects is justified,
to develop a bill to mitigate liability for
violation of the terms of investment
agreements in a difficult epidemiological
situation, for the legal protection of
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investors and to include such clauses in
future investment agreements.
In fact, we can cite many more specific aspects
of modern investment legislation and practice.
However, the most important thing is to
further improve the business environment in
our country by effectively implementing these
standards in practice, increasing the volume of
foreign investment and increasing investment
attractiveness. That is why the President of the
Republic of Uzbekistan Sh.
Mirziyoyev
emphasized
that,
"
World
experience shows that the state, which
pursued an active investment policy, achieved
stable growth of its economy. Therefore,
investment is the driver of the economy, in
Uzbek terms, the heart of the economy, if I say
so, it will not be an exaggeration. Along with
investments, new technologies, advanced
experience, highly qualified specialists will
enter various spheres and industries, regions,
entrepreneurship will develop rapidly"[26].
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