Evolution of re-privatisation mechanism as a method of acquiring the rights of public property in Ukraine on the position of foreign investment protection provided by international private law
Journal Title: Альманах міжнародного права - Year 2017, Vol 18, Issue
Abstract
The article is devoted to re-privatization as one of the ways to acquire state property rights. The author analyzes the national legal framework of the re-privatization mechanism in the historical retrospective. The national legal regulation of the issue of re-privatization is being studied from the point of view of compliance with international normative legal acts devoted to the protection of foreign investments. First of all, the author pays attention to the question of terminology and concludes that the concept of re-privatization has to be defined by the current normative legal acts. In addition, the article describes the general and distinctive features of re-privatization with such concepts as privatization and nationalization. The author analyzes the mechanism of re-privatization while studying the norms of the first privatization legislation of independent Ukraine. Thus, it was established that only the law on the privatization of state property was provided for the procedure of re-privatization, although such a concept was not defined in the legislation. Other special laws in this area, for instance a law on privatization of a housing stock, did not distinguish the mechanism of re-privatization at all. During this part of the study it was proved that such a state of affairs not only restricted the rights of citizens, but also negatively affected the possibility of returning to the state property of housing stock. The article suggests that the issue of re-privatization is not an easy one and requires the establishment of a balance of interests as a state that becomes the subject of ownership again as a result of this process. Other individuals or legal persons who lose the status of the subject of ownership can also acquire their rights. In addition to the legislative acts on privatization adopted in the 1990s, the author analyzes the current legislation and conducts a comparative legal study of it with a draft law 7066. On November 9, 2017, the Verkhovna Rada of Ukraine adopted the draft of the law as the basis (in the first reading). It has to simplify the mechanism of privatization and thus to make an attractive investment climate in Ukraine. The question of re-privatization was also taken into account in the mentioned above bill, in particular, an exclusive list of cases where the application of this mechanism is possible. The author carries out a comparative legal study not only of the current legislation and the draft law on reprivatization, but also analyzes the compliance of the norms of the national legislation with the norms of international law. The author’s emphasis is on the Washington Convention for the Settlement of Investment Disputes between States and Nationals of Other States, 1965 and the Seoul Convention on the Establishment of a Multilateral Investment Guarantee Agency, 1985. In the process of the research, the author points to the positive features of the national legislation, as well as reveals gaps and inconsistencies to be eliminated in the future. As a general conclusion, the author states that the evolution of the re-privatization mechanism is gradually being promoted. Legislators try to take into account existing problems and minimize the risks of their occurrence in case of normative legal support of this process in the future. The acuteness of this process is given by political levers, as different political forces try to redistribute property in the country under re-privatization process, which only worsens the investment climate in general. According to the results of the study, the author proposes specific changes to the legislation that will balance the interests of the state and individuals in the implementation of re-privatization.
Authors and Affiliations
Н. Б. Москалюк
Keywords
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