Public legal means of protecting national interests in the field of foreign investment: the modern experience of Russia and the Republic of Belarus.

Fedyanin Yurii Mikhailovich Postgraduate student of the Department of Business and Energy Law of Kazan (Volga Region) Federal University 420008, Russia, Republic of Tatarstan, Kazan, Kremlevskaya str., 18 mikhail.fedyanin.00@mail.ru

Today, both in Russia and in the Republic of Belarus, there is a tendency to shift investment policy from the most-favored-nation regime for foreign investment to a policy of imposing restrictions on foreign investors in the national interests of the state. In this article, we propose to consider the experience of the Union state of Russia and Belarus in protecting national interests in the field of foreign investment in terms of the use of public law means of state regulation.

First of all, we note that with regard to the regulation of foreign investments, the very nature of investment relations is usually of a mixed private-public nature, although in legal science the opinions of scientists do not agree on this issue. Thus, some authors rightly, in our opinion, argue that "public interest is the most important dominant and criterion for the permissibility of using public principles in regulating investment relations"^[1], and investment activity is aimed at ensuring not only the interests of the organizer of investment and investors, but also in the long term the interests of society^[2]. At the same time, A.V. Mayfat points exclusively to the civil nature of investment relations, and I.Z. Farkhutdinov and V.A. Trapeznikov, defining the legal content of investment relations, refer them to a variety of civil relations ^{[3, p. 90; 4, p. 43]}. In turn, E.V. Terekhova, in contrast to this position, identifies a separate type of public investment relations, noting that "public law principles are manifested in those investment legal relations in which the state or other public entities themselves act as investors"^{[5, p. 30]}. Taking into account the fact that even between business entities there may be a public interest to one degree or another, it should be recognized that the legal regulation of investment relations is carried out not only on the basis of general civil legislation, but also belonging to public branches of law.

One of the first tools in the field of protecting national interests in the implementation of foreign investments in Russia was established by Federal Law No. 57-FZ dated 04/29/2008 "On the procedure for Foreign Investments in Business Entities of Strategic Importance for ensuring national defense and state security" a special procedure for state control in relation to foreign investors investing in Russian companies of strategic importance. The said law established exclusions of a restrictive nature for a special entity, which included a foreign investor and a group of persons, which includes a foreign investor. And a company of strategic importance is a Russian business company that carries out at least one of the 50 types of activities listed in article 6 of the said law.

In this case, the state control itself represents the need to comply with the approval procedure in the Government Commission for the Control of Foreign Investments for the registration of transactions for the acquisition of shares (shares in the authorized capital) of a business company operating in the strategic industry. The procedure for passing this procedure is established by Articles 8-13 of the said Law No. 57-FZ and represents obtaining the approval of the Government Commission for Monitoring the Implementation of Foreign Investments in the Russian Federation. At the same time, the authorized state authority, the Federal Antimonopoly Service (FAS), interacts with the applicants, and initially the foreign investor must send a corresponding petition to the FAS of Russia.

In addition to the above restrictions, there are many prohibitions for foreign investors in Russia, they are scattered and contained in numerous federal laws adopted at different times, most often these prohibitions and restrictions relate to the acquisition of control in Russian business entities, such as: foundation (participation) of mass media (mass media), ownership of the right ownership of regional gas supply systems and gas distribution systems, ownership of agricultural land plots, banking, air transportation, certain types of insurance activities, diamond mining, private security activities, etc.

These legal means in the form of prohibitions and restrictions for foreign investors can be considered already established in the Russian legal field, at the same time, the prospects for the development of investment legislation depend on the ongoing changes in the geopolitical situation in the world and the reorientation of foreign trade and financial relations to friendly countries.

Faced with the sanctions pressure associated with the introduction of restrictive measures against Russia by foreign states, in December 2022, the Government of the Russian Federation adopted a new Strategy for the development of the financial market of the Russian Federation until 2030, according to which the key strategic objective of the development of the Russian financial market on the horizon until 2030 will be to strengthen its role in financing the accelerated transformation of the Russian economy from based primarily on internal sources of investment financing.

Also, a little earlier in March 2022, in Russia, in the form of additional temporary economic measures to ensure the financial stability of the Russian Federation, a special permissive procedure was introduced for transactions and transactions with foreign counterparties and persons controlled by them from states that imposed restrictions on Russia (Decree of the President of the Russian Federation dated 03/01/2022 No. 81 "On additional temporary measures of an economic nature to ensure the financial stability of the Russian Federation"). The issuance of appropriate permits for transactions to obtain ownership of securities and property, as well as the issuance of loans and credits, was entrusted to the Government Commission for the Control of Foreign Investments in the Russian Federation. In September 2022, by the relevant Decree of the President of the Russian Federation dated 09/08/2022 No. 618, the specified list of transactions was expanded to include transactions with shares in the authorized capital of Russian legal entities and some transactions.

Thus, the introduction of the considered restrictive measures has become one of the main means of protecting the national interests of the state of a public legal nature, which are of key importance for legal relations arising within the framework of foreign investments.

At the same time, the Russian Federation, even under the conditions of sanctions restrictions, maintains a focus on incentive measures that attract foreign investors to the domestic market. Thus, according to the above-mentioned Strategy for the Development of the Financial market of the Russian Federation until 2030, it is argued that it is necessary to create conditions for deepening the integration of the Russian financial market with the international one, while creating incentives for non-residents to invest in Russian financial instruments. Specifically for this purpose, it is proposed to simplify the work of Russian financial intermediaries with foreign investors and create favorable tax conditions for servicing foreign investors.  It is also planned to develop the issue of securities in the Russian jurisdiction by foreign issuers from friendly jurisdictions. Thus, legislation that is directly related to the field of financial law needs to be developed and elaborated. The ways of developing financial legislation are also being explored in scientific circles, in particular, we agree with E.L. Vasyanina's statement that the development of financial legislation should be aimed at finding effective legal means, one of the main directions of which is the specification of the conditions for granting subsidies at the level of the Budget Code of the Russian Federation, as well as the adoption of a set of measures to stimulate investment the activity of subsidy recipients and their effective use of budget funds^[6].

Such legal mechanisms as rulemaking, namely the development of laws and legislative initiatives, are one of the key tools for the implementation of the Strategy adopted by the Government of the Russian Federation for the Development of the Financial market of the Russian Federation until 2030 in the Russian Federation. At the same time, important areas of legislative activity are both the improvement of the existing regulatory framework and the creation of laws regulating fundamentally new spheres and areas of activity. The scientific literature currently also emphasizes the importance of introducing the concept of sustainable investment in the state regulation of the domestic economy, the development of private initiative of investors in difficult socio-economic conditions^[7].

Along with rulemaking, an important mechanism for implementing the development strategy is the establishment by state regulatory authorities of requirements for supervised organizations, the application of soft and indirect regulatory measures to them in the form of recommendations, letters of explanation, standards of self-regulatory organizations, codes and other forms.

In this regard, the experience of the Republic of Belarus, which similarly found itself under the conditions of sanctions pressure associated with the introduction of restrictive measures by foreign states, is interesting. On March 14, 2022, the President of Belarus signed Decree No. 93 "On additional measures to ensure the stable functioning of the economy". According to paragraph 2.13 of the Decree, a measure was introduced to prohibit the alienation by foreign investors (who are persons from foreign countries who commit unfriendly acts against Belarusian legal entities and/or individuals) of shares (shares) in the authorized funds of such legal entities. This ban was introduced in order to prevent the withdrawal of capital from the country and is aimed at increasing the internal stability of the economy.

The corresponding list of persons subject to Decree No. 93 was approved in Resolution of the Council of Ministers of the Republic of Belarus No. 436 dated July 1, 2022, it also states that in order to protect the interests of the Republic of Belarus, on the basis of an order from the Ministry of Finance, shares are blocked on the accounts of the "depot" of their owners according to the list.

Further, by Decree of the President of the Republic of Belarus "On Budget Financing" No. 386 on October 31, 2022, foreign investors from "unfriendly" countries were prohibited from reorganizing their business in the territory of the Republic of Belarus, as well as leaving it. According to the document, the reorganization of a legal entity of the Republic of Belarus included in the list, as well as the withdrawal from such a legal entity of a participant who is a person from a foreign state who commits unfriendly actions against Belarusian legal entities and (or) individuals, is prohibited. Some paragraphs of the Decree are hidden by the mark "for official use", based on those that are officially published, it can be concluded that the means of protecting the public interests of the Republic of Belarus are expanding. For foreign investors from "unfriendly countries" who fell into the circle of subjects of restrictions, thus, they became unacceptable:

- alienation of shares (shares) in the authorized funds of such legal entities;

- business reorganization;

- the withdrawal of a participant who is a person from a foreign state who commits unfriendly actions against Belarusian legal entities and (or) individuals is prohibited.

Once again, these measures apply only to organizations officially included in the List approved by the Resolution of the Council of Ministers of the Republic of Belarus. At the time of its adoption on July 1, 2022, it included 190 persons, then it was repeatedly amended and supplemented, including some legal entities were excluded from it. As of June 10, 2023, it already includes 1,795 legal entities.

For these entities, however, it remained not prohibited to carry out the liquidation procedure or transfer the organization to the so-called "dormant" mode, in connection with which on January 3, 2023, the Law of the Republic of Belarus No. 239-Z "On issues of transfer to temporary external management" was adopted. According to article 1 of the adopted law, it became possible to transfer commercial organizations under temporary external management, the owners (participants) of which are persons from foreign countries, in cases when the management of the organization by executive and (or) other management bodies has actually been terminated; or the management bodies of the organization carry out economically unjustified actions that may lead to the actual termination of activities, liquidation and (or) bankruptcy of such a commercial organization, causing damage to the organization. It is also allowed to transfer under temporary external management in other cases determined by the Council of Ministers of the Republic of Belarus.

This law was adopted in order to exclude the unjustified termination of the activities of commercial organizations, causing damage to their labor collectives and ensuring the normal break-even operation of commercial organizations.

It should be noted that these means of protecting public interests in the Republic of Belarus have proved effective in practice and can be recommended for use also in the Russian legal field. In Russia, under the conditions of sanctions pressure from foreign countries, they mainly focused on measures to buy out businesses by other investors, the introduction of external management, etc. At the same time, in Russia, the business of outgoing companies was bought out by local investors, and many companies with foreign capital could not be saved. In Belarus, on the contrary, it was possible to keep many companies with foreign capital due to the above-mentioned legal restrictions. Most investors have been forced to extend their presence and, if the geopolitical situation improves, they may keep their business in Belarus.

Currently, the growth trend of foreign direct investment continues in Belarus, as noted by economists in 2022, they increased by more than 15%, and in the first quarter of 2023 by 1.3% compared to the same period last year, the share of reinvestment is also increasing^[8]. Thus, the owners do not leave the market, and foreign investments remain in Belarus. Due to incentive measures to attract investments, the number of investors from "friendly" countries of the Middle and Far East increased by 70%.

Thus, to date, the main public legal means of protecting national interests in the field of foreign investment in Russia and in the Republic of Belarus have become restrictive measures against foreign investors from unfriendly jurisdictions, discussed in this article. Such means of protecting public interests in the Republic of Belarus as banning foreign investors from unfriendly countries from leaving, as well as the alienation of shares and business reorganization, as well as the transfer of commercial organizations to external management in the event of the actual termination of the management of the organization have proved effective in practice and can be recommended for use also in the Russian legal field.

It should also be noted that Russian investment legislation, which is directly related to the field of financial law, needs to be worked out. In particular, the Russian financial market continues to adhere to the principle of openness and accessibility to foreign investors. But at present, these principles are implemented only to the extent that they do not contradict the maintenance of national financial sovereignty and are oriented towards friendly jurisdictions. And the creation of incentive measures to attract them is a new task in the development of legislation both in Russia and in the Republic of Belarus.