THE CONCEPT OF FOREIGN INVESTMENT IN MODERN INTERNATIONAL LAW

The article is devoted to the issue of defining the boundaries of the concept of «foreign investment», which is provided with international legal protection (guarantees) in accordance with the Washington Convention and international investment treaties. Based on the doctrine and decisions of arbitration tribunals, the Author examines the existence of an objective nature of the concept of «investment», the specifics of determining investment in accordance with the Washington Convention and other international investment treaties, approaches to such definition, including certain elements (criteria), and specific arbitration cases that reflect the current state of development of the practice of investment tribunals on this issue. The author concludes that modern international law gives states full freedom to formulate rules that define the concept of foreign investment — that is why if there is no will of the state to provide international legal protection for a particular type of investment, it can not otherwise be classified as the foreign investment. On the other hand, arbitration institutions rather persistently analyze the provisions of agreements on the definition of investment, which does not distort the will of the state, but also applies it to certain disputes. At present, international law has developed a general framework for understanding the concept of foreign investment –there is a tendency to apply uniform criteria in the process of qualification of investment in arbitration practice. Although the trend itself can be described as general, but not the only common one, it allows us to talk about the creation of established practice in defining the concept of foreign investment. The Author also emphasizes the development of the concept of foreign investment in arbitration practice. New financial instruments, as well as the spread of arbitration practice, lead to a deepening and diversification of the interpretation of the relevant provisions of investment treaties. This process can be described as a process of finding a fair legal approach to new phenomena of today, which is happening and will happen in the future. The Author emphasizes that the scope of defining the concept of investment is currently being deepened and clarified, but not expanded.