جستجوی مقالات مرتبط با کلیدواژه « foreign investment » در نشریات گروه « فقه و حقوق »

As the most important actors of social security systems, pension funds follow certain principles in their investments; One of these principles is the principle of responsible investment. Responsible investment means integrating environmental, social and governance factors in the decision-making process for (long-term) investment and managing related activities. The emphasis on responsible investment by international organizations and the tendency of many pension funds in the United States of America, the United Kingdom and the European Union member states to do so indicate the importance of the issue. For this reason, the current article has investigated the responsible investment of pension funds using the descriptive-analytical method and based on library studies. The findings of this article indicate that pension funds in countries have different approaches to responsible investment; So that some of them strictly follow the rules of responsible investment; Some others try to comply with this principle to some extent, and another group of funds do not pay any attention to complying with this principle. The approach of these last two groups of funds is mainly due to the lack of knowledge required for responsible investment, the difficulty of choosing a portfolio and the high cost of this type of investment.

Arbitration is common in foreign investment dispute resolution, but there is no consensus on using arbitration as regard as foreign investors, because there are foreign elements. Dispute resolution of international issues such as foreign investment is most of the often according to the rules of international documents and arbitration is one them. In Iran law there are some challenges on using arbitration for dispute resolution because of exclusions of 139 principle of Constitutional Act. But in International issues, arbitrationn is eminent. One of the most important documents is The Washington Convention acted 1965 that regards the arbitration as one of the methods of dispute resolution on foreign investment. As of finance for Progress and development it is possible to rethink about foreign investment and arbitration is one of the best ways of dispute resolution that has the least cost and the most rate and high efficiency. So, by an international approach to the issue, we try to remove the defects and make this method of dispute resolution on foreign investment eminent in Iran.

Many investment host-states, invoking the spread of the coronavirus and the need to deal with Covid-19, have taken over the assets of private companies, forced them to make certain goods, intervened in their pricing, stopped their products, prevented export of their products and forced some to close their activities. In some cases, host-states may in fact expropriate the foreign investments for political, social, and economic reasons, such as reducing social pressures, increasing the possibility of success in elections, and acquiring low-cost, profitable investments, but invoke the need to combat the pandemics in order to mislead the arbitral tribunals. Since the host state have frequently sought to justify non-compliance with their treaty obligations by resorting to crises such as the outbreak of Covid-19, this article, referring to the investment treaties, doctrine and arbitration practices, and in order to strike a balance between interests of the investor and the host-state, in the first part, discusses the possibility, manner and arguments for filing a claim for expropriation by foreign investors by invoking the host-state measures in the situation of outbreak of pandemics including Covid-19, and in the second part, investigates the means of compensation for expropriation in the above-mentioned claims.

The idea of protecting the public interest by incorporating specific provisions in private contracts or in international treaties has been accepted in some legal systems. The provision of Article 139 of the Constitution of the I.R. of Iran concerning settlement or arbitration of public or state property is one such requirement. The international arbitration practice of the last forty years indicates, that except in cases where observance of article 139 is stipulated in the contract, arbitral tribunals have been reluctant to apply its limitations. Explicit or implicit references to the necessity of observing article 139 of the Constitution in the documents of ratification of bilateral investment treaties are a form of unilateral reservation by one party to the treaty. In the absence of stipulation as to the need for obtaining the authorization of article 139 in the text of the treaty, the principle of respect for the integrity of the bilateral treaty is applicable. Accordingly, it is feared that the unsuccessful experience of invocation by Iranian public law entities of the objections based on Article 139 in previous international commercial arbitration cases would be repeated in the field of investment arbitration in the future.

Attracting foreign investment is one of the best ways to benefit from foreign financial resources. Considering dual and proportionate methods to resolve legal and criminal lawsuits resulting from foreign investment is one of the most important incentives for attracting foreign investment. It is considered a foreign investment. By looking at the related jurisprudence, one can look for traces of these dual criminal and non-criminal methods, the most important of which is the standard of fair behavior and recourse to arbitration. Regarding the standard of fair treatment, in addition to rationality and its approval from the point of view of Shariah standards, it should be said that this criterion is used in the settlement of legal disputes and criminal lawsuits caused by foreign investment. behaving within the framework of the law, avoiding arbitrary actions, paying attention to the expectations of the investor and maintaining legal stability are among the most important applications of this criterion in the settlement of legal disputes and paying attention to the principles of fair criminal proceedings, the most important application of this criterion in the decision of criminal lawsuits. In relation to the method of arbitration, in addition to the generality of Sharia evidence, its application in legal claims is faced with challenges such as obstacles in the legal system of the host country, parallel proceedings and lack of coordination in the decisions, and in claims In criminal cases, most countries avoid resorting to this method and consider it as a supplementary restorative strategy; Although the balancing role of arbitration in this field is very important.

In the conditions of globalization, developing countries that seek to attract foreign investment, are forced to create an anchorage of pollution and destruction for economic development in front of foreign investors, and by neglecting environmental issues, development They prioritize the economy. While if they want to move forward in the direction of all-round economic development, they should consider sustainable development because this model of development is all-round, forward-looking, complete, and morally oriented.

In this article, the Islamic Republic of Iran's Constitution was investigated with an analytical and descriptive approach and with the collection method in the form of library studies. Also about which one has priority; Economic development or environmental development, which is actually sustainable development, and which one is considered by the legislator, was discussed and investigated.

There are various approaches to development, each of which has its own theoretical and scientific advocates. But what is desired by most thinkers and creators of modernization and development is sustainable development with an intensified look at the environment.

The rights approach, unlike other economic and political insights and approaches to economic development, is in sync with the environmental rights approach. This means that economic development can only be successful in the direction of sustainable development and reach its destination.

Protection of foreign investment is a useful instrument for foreign investors and host states. Strong protection for foreign investor attracts more investors and causes economic growth and development of host state and foreign investor gains more profit by increasing his capital. Foreign investment protection standards are considered as a requirement for the foreign investor to claim compensation in case of violation by the host state. In portfolio investment, according to the differences between this type of investment and foreign direct investment, special protections are required because a collection of protective standards applying in direct investment including full protection and security standard are not applicable in portfolio investment due to its specific characteristics. Therefore, it is necessary to apply standards which are useful and efficient. Some of these specific standards are mentioned in this Article. In Iran's legal system, the Executive Directive of Foreign Investment in Stock Exchange and OTCs addresses the protection of portfolio investor in brief, which does not provide sufficient protection for foreign investor.

On 27 March 2021, the Chinese Foreign Minister arrived in Tehran as an official visit, and in the midst of discussions about the US return to the Joint Comprehensive Plan of Action and the sabotage at the Natanz nuclear site, an agreement was reached entitled "Comprehensive Program of Cooperation between Iran and China". The very broad dimensions of this agreement in various economic, security, military, tourism, cultural, academic fields and with a special focus on the issue of energy, especially the purchase of oil and petrochemical products by China from Iran over a 25-year period, leave many ambiguities. It even raised questions for experts in the field, including why it was signed at this time and why for 25 years. In this paper, with the aim of resolving the existing ambiguities, we analyze this agreement from the perspective of international law.

Adam Smith, renowned economist and pioneer of the classical school, mentions the concentration of capital (investment) as a necessary condition for economic development and growth. This means that countries, in order to achieve proper economic growth, have to accumulate and equip capital. For developing countries, including Iran, whose lack of investment is an integral feature, attracting foreign investment to achieve proper economic growth and development is inevitable.But there are several obstacles in the way of transferring this investment, the most important of which are legal loopholes or multiple interpretations. This means that a look at the domestic regulations, especially the Constitution of the Islamic Republic of Iran, indicates the existence of relatively major obstacles to the use of non-governmental systems to resolve disputes arising from investment. Even the use of judicial methods is questionable in terms of the impartiality of each country's domestic courts.Obstacles to resolving a dispute in the general sense means any law, custom or culture that makes it difficult or impossible to reach a compromise between the parties to a private law relationship. This article examines the barriers and challenges of arbitration in resolving disputes arising from foreign investment in the form of barriers arising from constitutional principles, barriers arising from international government immunity, and cultural and practical barriers. This research is applied in terms of purpose and descriptive-analytical in terms of method and nature. The necessary data and information have also been collected through the library method.

Despite increasing armed conflicts and the resulting damages to civilians, including foreign investors, no specific regime has been envisaged in international law to compensate for such damages to investors. As a result, for reparation of damages caused by armed conflicts, investors resort to the so-called war clause in investment treaties as well as the general international law on reparation for wrongful acts. But this practice, as will be argued, has many ambiguities that may affect the rights of both the host state and the investor. While sovereignty considerations such as public order or national security can make it difficult to prove government responsibility in armed conflicts, the war clause provides an additional layer of protection for investors, but does not eliminate traditional investor-protection standards. All the same, the war clause makes the investor's right to reparation subject to strict requirements, such as proving the cause of damages and absence of military necessity, which is difficult in armed-conflict situations. It would be more sound to burden the state that has used military force with proving military necessity. In evaluating the damages, arbitration courts are expected to pay attention to emergency situation and its impact on the interests of both parties.

Pension funds in order to be able to fulfill their obligations to the insured, mainly invest the funds received from the insured. These investments can be inside or outside the territory of the country where the fund was established and the latter can be through direct or indirect investment. Considering the importance of foreign investment for pension funds, this article has investigated the necessities, methods and challenges of this issue using the descriptive-analytical method and based on library studies with a comparative approach and the situation of Iran's pension funds has been examined in relation to each of these issues. The findings of this research show that in the present era, many pension funds have started foreign investment (mainly indirect type) based on the necessity of reducing investment risks, the limitation of the domestic capital market, and the low return on investment in the domestic market of their country. However, the foreign investment of pension funds in some countries is facing challenges and problems, some of which are legal and others are rooted in non-legal issues, especially economic issues. Although the foreign investment of Iran's pension funds has been accepted in the legal system of Iran, but due to legal and non-legal challenges, these financial institutions have not made foreign investment so far.

Commercialization of oil and gas fields is the connecting link between the exploration stage and development and production, and the final part of the contractor's risk. Proving it leads to the continuation of the contract and reimbursement of the investment, and failure to prove it leads to the end of the contract without reimbursement of expenses. Ambiguity in the concept of commercialization and its similarity with similar concepts, such as the commerciality of the field or commercial production, can be the source of future disputes. The relativity of the concept of commercialization with regard to internal and common fields, oil and gas fields, and on-shore and off-shore fields increases this ambiguity. Therefore, it is necessary to provide a comprehensive, clear and practical definition of field commercialization and its criteria. In addition to proving the technical and economic criteria, the commercialization process of the field requires compliance with formalities. Fulfillment of this technical and economic condition with the proper observance of the formalities has many legal effects which definitely affect the interests and obligations of the parties. This article is written with a descriptive and analytical approach in order to understand the concept and legal effects of commercialization of oil and gas fields. What are the criteria for the commercialization of the field and what are its effects is the main question of the research. The hypothesis of the authors is that commercialization is a relative concept and its criteria are different according to the time and place conditions of each country and from the point of view of the host government and the investor. Considering that no article has been written on this topic so far, the purpose of this research is to investigate and conclude the concept, criteria, formalities and effects of field commercialization with the approach of supporting national interests and localization within the framework of the oil and gas law in Iran. One of the important results of this research is the separation between commercial wells, commerciality of the field, commercialization of the field, production and commercial supply. The commercialization of oil and gas fields has many effects on the rights and obligations of the parties. Including it is possible to determine the period of exploration, development and production, reimbursement of investment and its rate, relinquishment of the contracted area, delivery of the field to the host government in some contracts, conclusion of oil sales contract, the offer of proposed Appraisal Program by IOC and making decision for the participation of the host government in oil operations.

Modern governments always consider themselves agents of public will and protectors of public interests and goals. Public opinion also measures governments based on their attention to public goals. One of the general goals of governments in the field of achieving good governance is to develop infrastructure and increase public welfare, and in this field, most governments try to achieve more success in this field by attracting foreign investment.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

Due to the long-term nature of the investment contracts and the period of its exploitation, there may be changes in public opinion, fundamental changes in the structure of governments, revolutions may cause a change in attitude towards public goals and expropriation, confiscation and nationalization of the investor's property.

Ethical Considerations: 

In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

In this regard, there are many issues, one of the most important of which is the role of good governance in determining the legitimacy or not of expropriation in line with public goals. As a result of the investigation, it will be clear that today the principles of good governance have become one of the incentives influencing the continuation of foreign investment.

Joint venture is a contract whereby two or more business partners participate in the execution of a specific economic plan and invest in that plan through cash or non-cash. Joint venture is among the international contract models that can be and is used in the oil industry. In Iran, this contractual method was permitted under Oil Act of 1957 but the law was changed. First the use of this method was limited in the "upstream operation" of the oil industry by the Oil Act of 1974 and then the Oil Act of 1987 prohibited the use of any type of cooperative method in the oil industry. Although a law passed in 2011 amended the provisions of the 1987 Act. The main question this paper is the following: is it allowed to use this contractual model under the new rules in oil and gas industry? With the introduction of new oil contracts in the post-JCPOA and in view of the fact that one of the country's top priorities is attracting foreign investment, it seems new laws have explicitly or implicitly permitted the use of this model of contract in the oil contracts.

In Iran's legal system, despite the general rules of civil liability, the institution of indirect infringement of intellectual property rights and the resulting responsibility has been formed and developed with the aim of better protection. In this research, it is done with a descriptive analytical method. Indirect infringement is a mistake that, although it does not directly lead to the infringement of intellectual rights, but provides the prerequisites for it, causes the infringement to occur and imposes responsibility on someone who has not committed the material element of the infringement of intellectual rights. Intellectual property rights are an important factor in attracting foreign direct investment, strengthening the foundations of intellectual property rights to attract foreign investment requires determining the legal ratio between intellectual property rights and foreign investment. The intellectual property rights system consists of various international conventions, the most important of which is the TRIPS Agreement, which serves as the minimum international standard for the protection of intellectual property rights, and the international investment law system, which consists of bilateral investment treaties and regional and bilateral free trade agreements, which are an important factor in regulating foreign investments today. Intellectual property is recognized as an example of foreign capital in the definitions of foreign capital of investment agreements. Foreign capital of intellectual property requires that it benefit from the protections provided in investment agreements. The protection standards provided in investment agreements are higher than TRIPS and are referred to as TRIPS Plus

Sustainable development has become the epicenter of collective international policy-making. As such, foreign direct investment, as the empowering engine for SD, has attracted much attention. It is believed that sustainable development cannot be achieved without foreign investment. Traditional international investment agreements have been criticized for protecting foreign investors who deviate from the requirements of sustainable development. This has led to changes in these treaties, which are the subject of the present article. It seems that in the light of the plurality of references to sustainable development in new investment agreements, a balance has been created between the goals of sustainable development and the protection of foreign investors.

Over the last decades, the buy-back contract model in Iran’s petroleum industry was a valuable tool that kept evolving over the last 3 generations. Despite its significance, it was always faced with heavy criticism. After the sanctions against Iran and the occurrence of Joint Comprehensive Plan of Action, there was a crucial need of international investment by joining foreign investors and contractors on behalf of the host government. Thus, there was a vital need for an enhanced model contract, after changes in laws, allowing this agreement. Because most of Iran’s current reservoirs have been depleted, it is essential to do sustainable exploit with a maximum efficient rate of recovery including prioritizing use of shared reservoirs. This has led to the enactment of a new model of oil and gas contracts called IPC. This new model has its own flaws especially in fiscal regimes and is faced with criticism. This paper attempts to analyze and respond to these critical reviews. Although there are some gaps in the model, it can pave the way for advancement of economic and fiscal regimes leading to further foreign investments, in hopes of strengthening Iran’s position in OPEC and world trade of oil and gas for long-term.

Foreign investment is one of the most important ways of transferring liquidity and technology from developed countries to developing countries, which has been the focus of many statesmen and policymakers in recent decades. One of the most important measures in order to optimally support the foreign investment process is to foresee appropriate legal mechanisms and especially arbitration in order to resolve disputes and lawsuits arising from it. Considering the perpetration of acts and procedures that disrupt foreign investment in every country as an undeniable fact, in this research, with a descriptive-analytical method, the feasibility of implementing the arbitration mechanism for the settlement of claims resulting from acts that disrupt foreign investment Been paid. The findings indicate that there are serious obstacles in Iran's current legal system regarding the referral of claims resulting from double taxation and the occurrence of economic corruption (in the form of violations) as the most important examples of acts that disrupt foreign investment. , 125 and 139 of the Constitution is one of the most important of them. The current situation requires that, if possible, reinterpretation of the above-mentioned principles should be carried out according to the current conditions and the upcoming needs on the part of the relevant interpretive institutions.

Makran's strategic beaches, with many capacities, are one of the suitable platforms for attracting foreign investors. In this research, which was compiled with the aim of expressing the importance of the Makran coastal region in the international economy, the capacities and legal challenges of investing in this strategic region have been explained.

This research is of theoretical type and the research method is descriptive-analytical and the method of data collection is library and has been done by referring to documents, books and articles.

Ethical considerations:

 In order to organize this research, while observing the authenticity of the texts, honesty and fidelity have been observed.

The findings of the present research show that there are various legal-jurisprudential capacities in connection with the sustainable development of Makran beaches. In the meantime, the upstream macro-laws and its jurisprudential foundations have a significant contribution in creating these legal capacities. Major documents such as Makran Coastal Area Development Document, Sixth Development Plan Law, Vision Document 1404, Law on How to Manage Free Zones, Law on Encouraging and Supporting Foreign Investment and Law on Removing Certain Production Obstacles.

Despite the existence of legal challenges facing the development of Makran, such as environmental challenges, the conflict of foreign investment with some rules and principles of the Islamic Republic, as well as Iran's non-adherence to FATF, It should be acknowledged that Iran has taken positive and admirable steps in the direction of attracting foreign investors in the development of Makran's strategic beaches.