中国在中亚直接投资所面临的法律及其风险探讨——以哈萨克斯坦共和国为例

An Exploration of the Laws and Its Risks Faced by China's Direct Investment in Central Asia: A Case Study of the Republic of Kazakhstan

中国在中亚国家的直接投资正逐年扩大,随着投资的日益增加,投资争议问题也越来越多。哈萨克斯坦是中亚代表性国家,哈国解决投资争议的现行法律规则以单边、双边、区域、多边层次法律规范体系形式存在。目前中资在哈国面临投资壁垒较多,法规修改频繁,政策多变,连续性和稳定性较差,政府腐败比较普遍,利用政府强权干预市场等多种投资风险。中国政府应推动两国修订双边投资协定,扩大对投资的界定,对投资争议全面接受ICSID仲裁管辖权。中资企业应掌握并运用哈国的投资争议解决机制,维护其合法的投资权益。以哈萨克斯坦为例,分析中亚国家的投资争议解决制度及投资的法律风险,对于中资应对投资争议及保护其合法权益将大有裨益。

China＇ s direct investment in the countries of Central Asia is expanding year by year; at the same time, there are more and more problems of investment disputes along with the increasing of the investment. Kazakhstun is a representative country in Central Asia. The existing laws and rules for the settlement of investment disputes in Kazakh are in the forms of legal norm system at unilateral, bilateral, regional and multilateral levels. At present, China＇ s investments in Kazakh are faced with many investment risks, such as a variety of barriers, frequent amendments of laws and regulations, changeable policies, poor continuity and stability, widespread government corruption, market in- tervention by the strong power of government, and so on. The Chinese government should promote the revision of the bilateral investment treaty between the two countries, expand the definition of investment, and fully accept the jurisdiction of ICSID arbitration for investment disputes. The Chinese-funded enterprises should master and make use of the investment dispute settlement mechanism of Kazakh to safeguard their legitimate rights and investment interests. Taking Kazakhstan as a case, this analysis can be of great help for Chinese-funded enterprises to deal with investment disputes and protect their legitimate rights and interests.