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This study describes and analyses the recently adopted foreign investment law (i.e., the Law). This paper presents reasons for the adoption of the Law. For example, this study focuses on the trade war between the United States and China, which has greatly affected the adoption of the Law. The political background that influenced the adoption of the law is revealed. Of note, legal techniques used by the Chinese legislators in the Law are evaluated. For example, a list system for investment sectors is used, which divides all industries into categories with a special regime. This system divides all industries into four categories: (1) encouraged, (2) permitted, (3) restricted, and (4) prohibited. In conclusion, this study emphasizes that changes achieved by the Law are not revolutionary. Some of the consequences that the adoption of the law entails is analyzed. Thus, the Law represents a gradual evolution in how foreign investors access the Chinese economy.
The chapter reviews the mechanism of foreign direct investment controls as implemented in Russia under the auspices of the Federal Law “On Foreign Investments in Russia” No. 160-FZ and Federal Law No. 57-FZ “On the procedure for making foreign investments in companies which are of strategic importance for ensuring the country’s defence and state security”. The author examines the definition of the foreign investor provided by the laws, analyzes the types of activities deemed of strategic importance for national defence and security and describes the thresholds triggering obligations of obtaining prior clearance of foreign investment transactions. A separate section of the chapter is devoted to the analysis of the procedures for obtaining clearances and the consequences of non-compliance. The paper also addresses other rules of the Russian legislation that restrict foreign direct investment to Russia. In the last section of the chapter, the author summarizes the experience of 10 years of application of foreign direct investment control mechanisms in Russia and poses questions on the possible implications of Russia’s experience for the EU Regulation establishing a framework for the screening of foreign direct investments into the Union.
This book presents the very first, interdisciplinarily grounded, comprehensive appraisal of a future “Common European Law on Investment Screening”. Thereby, it provides a foundation for a European administrative law framework for investment screening by setting out viable solutions and evaluating their pros and cons.
Daimler, the harbour terminal in Zeebrugge, or Saxo Bank are only three recent examples of controversially discussed company takeovers in Europe. The “elephant in the room” is China and its “Belt and Road Initiative”. The political will in Europe is growing to more actively control investments flowing into the EU. The current regulatory initiatives raise several fundamental, constitutional and regulatory issues. Surprisingly, they have not been addressed in any depth so far. The book takes stock of the current rather fragmented regulatory approaches and combines contributions from leading international academics, practitioners, and policy makers in their respective fields. Due to the volume’s comprehensive approach, it is expected to influence the broader debate on the EU’s upcoming regulation of this matter.
The book is addressed to participants from academia as well as to representatives from government, business, and civil society.
This article is a commentary on the decision of the Constitutional Tribunal of the Republic of Poland dated October 22, 2020, in which paragraph 2 of part 1 of article 4a of the Act of January 7, 1993 about family planning, protection of the human fetus and conditions for the acceptability of abortion was found to be contrary to the Constitution of the Republic of Poland. By this decision, which caused a colossal public outcry, the Republic of Poland established a ban on abortion if medical circumstances indicate a high likelihood of severe and irreversible fetal impairment. The author pays special attention to the factual recognition by the Constitutional Tribunal of the Republic of Poland of the subjectivity of persons who physically do not possess either consciousness or their own will, and also assesses the change in the category of legal personality in the Polish constitutional concept, formed by the practice of the Constitutional Tribunal of the Republic of Poland.
The Author concludes, that in bankruptcy cases the ideas of a derivative action and of a class action find their way. The first is typical for the bankruptcy initiation stage and the second – for separate disputes on bringing to subsidiary liability and challenging of transactions. In the context of the chosen problematics the question of creating a mechanism of collective funding of bankruptcy procedures is put up.
The Author, discussing on the moment when obligations terminate by means of judicial set-off, concludes, that the answer to this question is concealed in the concept of a court decision. The solutions to the put up question depending on application of declaration theory or order theory are analyzed.
the purpose of this research is to identify the notions of “investments” and “investments securities.” This article provides the reader with some information elaborates on the point of views resident in economic and legal doctrines as to the notions of “investments” and “investments securities” as well as those definition in law., legislations in the notion “investment.” As a result of this research proposes to consider investments as a juridical definition as a good or a set of goods investing in objects of entrepreneurial and (or) other activities to make profit and (or) other positive effect. The fact that one security for one person will be investment, for another there is no. It depends on the aims of the person, who is buying or releasing this security. It is stressed that investment securities could be any security purchased or produced to make a profit and (or) other positive effect. The main idea of the article is the legal regime of the investment securities doesn’t depend on the objective characteristic’s investment securities. It depends on the legislator’s wills and on the specific economic conditions of the state in a certain time period. The legal regime of the investment securities is contained additional encouragements, guarantees, preferences, tax benefits and other.
The Author proposes to amend the arbitration procedure law by introducing a case management concept, according to which the type of proceedings shall be determined by the court after revealing the respondent’s position.
Dispositive actions of the parties (waiver of claim, recognition of the claim, settlement agreement) are subject to court control, namely verification of compliance with the law. Dispositive actions of the parties have different legal nature and therefore the approach of the court to such verification should be different. The plaintiff’s waiver of claim should be checked only for compliance with the procedural law, while the recognition of the claim and the settlement agreement — both procedural and material. The criteria for such differentiation are the features of the legal force of judicial acts, which are based on the dispositive actions of the parties. A check for compliance with procedural law presupposes that the court determines whether the party freely formed a desire to take an dispositive action, whether it was adequately expressed, whether the party understands the consequences of such dispositive action. Verification of compliance with the material law of the recognition of a claim or a settlement agreement concluded involves an ex officio determination by the court whether the transaction underlying the said dispositive actions is invalid, regardless of whether it can be considered null and void or voidability.
The Author on the example of a particular case, that was considered by the Supreme Court of Russian Federation, discusses on: 1) the correlation between bankruptcy procedures and enforcement proceedings; 2) can a family be considered to be a civil law community: 3) should the spouses’ claims towards each other be subordinated in bankruptcy cases.
The Author contemplates on deep doctrinal issues, that emerge during the consideration of disputes on challenging of the creditors’ meetings’ decisions in bankruptcy cases. In particular, as the Author asserts, the resolution of practical cases depends on the approach towards the court decision concept (theory of declaration or theory of order), and on the answer to the question on is a meetings’ decision a civil transaction of not.
The Author analyzes two aspects of discovery of evidences: 1) timely presentation of evidence; 2) submission of evidence according to a court’s ruling, made on the request of the opposite party to the dispute. In the context of the first aspect it is concluded in the article that the court should be entitled to refuse the admission of evidence that is presented untimely. In the context of the second aspect the Author asserts that such a procedural sanction as loss of the dispute shall be applied to a party, that has refused to submit evidence claimed by the court.
The author discourses on the question of how shall be realized a restitutional claim to a counterparty who himself is subject to bankruptcy proceedings: 1) the property that was alienated on grounds of an invalid transaction is excluded from the bankruptcy estate of the counterpart; or 2) the debtor, who effectively challenged a transaction, acquires a non-monetary claim to a debtor, that is transformed into a monetary claim. It is asserted in the article, that the answer to this question depends on whether to consider a transaction of a property transfer causal or abstract.
The Author asserts that the question on the fate of a criminal procedure arrest after a winding up procedure is introduced against the debtor depends on the solvation of a fundamental problem of how does a state as a sovereign relate with the state as a proprietor. The state acting it the first essence cannot create preferences for itself acting in the second essence.