Constitutional Guarantees for Investment: Comparative Study (Kuwait – Egypt – France)
Yusri Alassar
Public Law Dept. - Kuwait International Law School - KILAW
Abstract
The legal system for investing national and foreign capital has received the attention of economists and scholars of commercial law and private international law, but constitutional studies on the subject are still few. The current research aims to clarify the position of the constitution and legislation on capital investment and the means to encourage and protect it, and the directions of the judiciary, especially the constitutional judiciary, from the laws governing investment, in Kuwait, Egypt and France. The constitution in each of the three countries surrounded investment with protection. Article (16) of the Kuwaiti constitution stipulates that property, capital and work are basic components of the state’s social entity and the national wealth, and they are all individual rights with a social function, and Article (20) states that the national economy is its basis Social justice and its basis is fair cooperation between public and private activity, with the aim of achieving economic development, increasing production, raising the standard of living, and achieving prosperity for citizens. The constitutional principles in both Egypt and France also provide for complementarity between public and private capital and their common role in achieving development. Legislation includes many measures to encourage national and foreign investment, protect it from nationalization and expropriation, and grant it various advantages and exemptions, all of which are consistent with constitutional principles. Legislators in both Kuwait and Egypt devoted a separate law to encourage foreign investment (Law No. 43 of 1974 in Egypt and Law No. 8 of 2001 in Kuwait), but the current development in the two countries has led to the combination of national and foreign investment in one law (Law No. 116 of the year 2013 in Kuwait and Law No. 72 of 2017 in Egypt). This trend is commendable and is consistent with the principle of equality, given that investment projects are prepared in one legal position. The Public Tenders Law also permitted contracting with foreign companies without a national partner. The legislation included multiple procedures and measures to prevent corruption in government contracts. The constitutional judiciary has decided basic principles in the field of investment protection, the most important of which are: freedom of trade and industry, contractual freedom, protection of private property, complementarity between public investment and private investment, and the principle of equality between projects with similar legal positions. The administrative judiciary has agreed between the principle of freedom of trade and industry and contractual freedom, the need to protect public funds and prevent corruption. These topics will be studied according to the following plan: The first topic: the position of the constitution and the law on private capital investment. A- the constitutional basis for protecting private capital. B- legislation to encourage investment and protect private money and public funds. The second topic: the most important principles decided by the constitutional judiciary in the field of investment protection. A- Freedom of trade and industry. B- contractual freedom. C- Protection of private property. D- Complementarity between public and private investment. E- The principle of equality between projects with similar legal positions.
Keywords
investment, national and foreign capital, protection of investment, freedom of trade, freedom of private property, protection of public funds, corruption.
