해외직접투자에 대한 체제전환국의 법체제에 관한 고찰

Abstract

Since the dissolution of the Soviet Union, the transformation of centralized economies into market economies over the last two decades was an unprecedented phenomenon. Such transformation of economic system imposed tremendous political, social and legal issues to the former Soviet Republics. Foreign direct investment ("FDI") has been one of the important driving forces in development of the economies of the transitional countries that have been converted into market economies by providing capital for economic development, in combination with managerial skills, technologies and access to international markets. In order to encourage FDI that were essential for the reform and development of the market economy, one of the first measures taken by the transitional countries was to establish a legal regime for FDI protection. The importance of FDI has been amplified due to the fact that the transitional countries urgently require development of modern and efficient infrastructure, which is a basic condition for a properly functioning market economy. Therefore, it is important to establish an appropriate and comprehensive legal and regulatory regime on FDI that is compatible with long-term infrastructure investments made by foreign investors. In this paper, the author examines the contours of a legal framework on FDI adopted by the transitional countries, especially with respect to a bilateral investment treaty at the international law level and the domestic legal regime relevant to FDI at the national law level, and its interlinked significance in connection with infrastructure development. As regards development of the domestic legal regime, the case of Kazakhstan is discussed. It should be also noted that it is important for the transitional countries to make an infrastructure investment as a bankable project and, for this, establishment of a solid legal framework by the governments of transitional countries is required to mitigate the legal risks associated with the infrastructure projects. For a successful transition to market economy, a legal framework based on BITs at the international law level in combination with consistent and detailed national legislations accommodating the fundamental market mechanism provides the essential ground for further progress into a mature market economy as well as for promotion of sustainable inflow of FDI into the transition economies.