The National-Law Layer of Investment Disputes
International investment arbitration, including the ICSID format, is a rare and demanding process whose first qualifying filter is often national law. Before a dispute reaches an international tribunal, it must be established whether the object in dispute is an investment and whether the claimant is an investor within the meaning of the Georgian law on the promotion and guarantees of investment activity. It is precisely this law that shapes the concepts and guarantees forming the initial grid of the tribunal's analysis: the definitions of investment and investor, the legal regime of the foreign investor, the inviolability of investment and the conditions of compensation. The treaty layer stands on the second level of that sequence.
Investment and Investor — the Qualifying Concepts
An investment is any kind of property or intellectual value, or right, that is invested and used for the purpose of deriving possible profit in entrepreneurial activity carried out on the territory of Georgia. Such a value or right may consist of monetary funds, a share, stocks and other securities; immovable and movable property — land, buildings, installations and other material values; the right to use land or other natural resources, including a concession, a patent, a licence, know-how, experience and other intellectual values; as well as any other property or intellectual value or right recognised by law.
An investor is a natural or legal person, as well as an international organisation, that carries out investment in Georgia. A foreign investor is a citizen of a foreign state; a stateless person who does not permanently reside on the territory of Georgia; a citizen of Georgia permanently residing abroad; and a legal entity registered outside the borders of Georgia. Investment may be made in an object of any form of ownership, provided investment in it is not prohibited by law; in objects listed by the law, investment may be made only on the basis of the corresponding special permit or licence.
Rights and Guarantees of the Investor
In carrying out investment and entrepreneurial activity, the rights and guarantees of a foreign investor may not be less than the rights and guarantees enjoyed by natural and legal persons of Georgia, except in cases established by legislation. An investor has the right to open current and other accounts in any currency at banking institutions in Georgia, to take loans from banking and financial institutions in Georgia or abroad, or from natural or legal persons, and to purchase stocks, bonds and other securities, as well as property both in Georgia and abroad.
The rights to possess, use and dispose of the results of investment may, by decision of the investor, be transferred to another person in the manner established by law, and the parties' relationship on such transfer is regulated on a contractual basis. After the payment of taxes and mandatory levies, a foreign investor has the right to convert profit and other monetary funds at the market rate and to repatriate them abroad without restriction; the investor also has the right to export property in its ownership abroad. This last right may be restricted only by a court decision founded on law — in connection with bankruptcy, the commission of a crime or the non-performance of a civil obligation.