On
28 February 2013, the Parliament of the Republic of Tajikistan enacted
the Law “On the Investment Agreement”. The Law was signed by the
President on 14 March 2013. The Law provides for rules on investment
contracts between the Government of Tajikistan and investors for
investment projects of a “strategic” character. Such contracts are to be
signed by the Government of the Republic of Tajikistan and ratified by
the Parliament (Art. 12 and 13 respectively). The contract may establish
rules, which are not provided for under the legislation of Tajikistan,
as well as a strong grandfathering clause (Art. 6 sec. 3 of the Law). The ratification of such contracts by the Parliament
elevates the special contractual regime to the level of formal
legislation with a character of lex specialis. The Law
foresees the possibility to agree on a very broad arbitration clause
covering all disputes out of the investment contract, also in public
matters (Art. 21 Sec. 2 of the Law). Tajikistan can give its consent to
waive its state immunity including immunity against enforcement of arbitral awards.
The
above-mentioned provisions are just examples from a long list of
concessions made by Tajikistan to investors. Legislation providing for
the internationalization of contracts, restrictions on sovereign rights
and state immunity waivers was typical for the investment legislation of
developing countries in the 1960-70s (e.g. Indonesia) and also for some
post-Soviet countries in the early 1990s (e.g. Azerbaijan, Kazakhstan).
The experience of these countries shows that extensive restrictions of
sovereign rights very often sooner or later lead to disputes with
investors. The State needs at least the right to react to changes of
external circumstances and to adapt its legal framework. Investors are
often not interested in such amendments and make use of the rights given
to them by the State (e.g. under the grandfather clause).
The
above-mentioned Law was drafted with the support of the International
Finance Corporation. Probably many other international experts and
organizations (e.g. UNCTAD) would advise Tajikistan to drop or at least
to amend some of the provisions of this Law.
