Instrumenty ochrony prawnej instytucji zagranicznych na przykładzie stosunków RFN-Polska
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Date
1991
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Publisher
Wydział Prawa i Administracji UAM
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Instruments of legal protection on foreign investment on the example of relations between Poland and the Federal Republic of Germany
Abstract
The article presents the protection of foreign investment in the light of the provisions of the
Agreement on Promotion and Mutual Protection of Investment concluded between Poland and
the Federal Republic of Germany and in the light of Act of 14 VI 1991 on Companies with the
Participation of Foreign Investors. Those regulations provide that foreign investment is subject to
special protection in three different situations, i.e. in the case of expropriation, damage resulting
from social unrest, etc., and in the case of withdrawal of capital.
The protection of investment in the first case manifests itself through a statutory
limitation of admissibility of expropriation (expropriation is allowed only in the public
interest) and through the investor's right to financial compensation, if expropriation has
taken place. At the same time the Constitution requires that such compensation should
be ,just". Both the Act of 14 VI 1991 as well as the Agreement define the procedure
of determining and payment of such compensation; the Act provides an additional instrument
of protection, namely the guarantee granted by the Minister of Finance.
In the case of damage resulting from social unrest, etc. on the area of the localization of
investment, the Agreement requires that foreign investors should be treated not less favourably
than domestic investors. Thus, the protection of investment depends on the scope of protection
provided for in domestic legislation.
Sums received as compensation in the above cases can be transferred freely, just like in the
case of the sale or liquidation of investment. The scope of payments subject to the right of free
transfer is defined similarly in both documents.
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Digitalizacja i deponowanie archiwalnych zeszytów RPEiS sfinansowane przez MNiSW w ramach realizacji umowy nr 541/P-DUN/2016
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny, 53, 1991, z. 4, s. 39-53