Azerbaycan ve Türkiye’deki Siyasal Yapı ve Yabancı Yatırım Hukuku

Political Structures and Foreign Investment Law in Azerbaijan and Turkey

Hakan Şahin

Bu makalenin amacı Azerbaycan ve Türkiye’nin yabancı yatırım hukuku ve siyasal yapısını mukayeseli açıdan değerlendirmektir. Geçilen on yılı aşkın zaman içerisinde, Azerbaycan ve Türkiye hükümetleri hem siyasal istikrar ve hem de teşvik edici yatırım ortamı kurmuş ve bunları da gerek iç hukukları üzerinde yapmış oldukları düzenlemeler aracılığıyla, gerekse de ikili ve çok taraflı anlaşmalara taraf olarak gerçekleştirmişlerdir. Türkiye, sınırlayıcı yapıya haiz olan önceki yabancı yatırım kanunu ve politikasını özgürleştirerek yabancı yatırımcıyı teşvik eden bir politika izlerken, benzer bir şekilde Azerbaycan ise yabancı yatırımcıyı teşvik amaçlı birçok kanun ve yasal düzenlemeleri, kanun çıkarmaya yetkili otoriteleri vasıtasıyla gerçekleştirmiştir. Bu çalışma gösterdi ki, yabancı yatırımcı için Azerbaycan ve Türkiye’de yatırımcı dostu bir ortam bulmasına rağmen, bu ülkelerdeki bazı problemler, yatırım yapılabilirliği hususunda engel teşkil etmektedir. Bürokratik verimsizlikler, yetersiz şeffaflık ve yüksek derecede ki yolsuzluk Azerbaycan’da yatırım açısında problem teşkil etmektedir. Türkiye’nin yabancı yatırımcı açısından başlıca sorunu ise, yargı sistemindeki aşırı iş yükü ve ağır bürokrasidir.

Yabancı Yatırım, Siyasal Rejim, Azerbaycan, Türkiye, Yatırım Antlaşmaları.

The purpose of this article is to examine Foreign Investment Laws, and Political Structure of Azerbaijan and Turkey from a comparative perspective. The governments of Azerbaijan and Turkey have both secured political stability and established an appealing investment environment via adjustments to their domestic law, as well as signing up to bilateral and multilateral international investment treaties over the past decade. Turkey has liberalised its previously restrictive foreign investment law and policy to give encouragement to international investors. Similarly, since the establishment of the Republic of Azerbaijan, its legal authorities have been active in passing various laws with regard to foreign direct investment. The work has provided that although foreign investors seem to have found a friendly investment environment in Azerbaijan and Turkey, there are some major problems which render doing business problematic. Inefficient bureaucracy, a high level of corruption and a lack of transparency in legal and political processes are the major problem for Azerbaijan. From the perspective of investors, Turkey’s chief weaknesses lie in its overburdened judiciary system and its cumbersome bureaucracy.

Foreign Investment, Political Regime, Azerbaijan, Turkey, Investment Treaties.

INTRODUCTION

A host economy with a high degree of political instability and risk tends to discourage FDI flow into its market, as the political instability and unpredictability this brings with it impact on the profitability of foreign investment¹. The attraction of foreign capital through foreign investment is a major undertaking for host states. Regardless the sector type, a welcoming investment environment are all considered basic criteria by alien investors. In other words, foreign investors seek legal, fiscal and constitutional guarantees that their property and contractual rights are well protected over the course of their investment activities. The interaction between domestic law and international rules is at the centre of the legal regulations of Foreign Direct Investment (FDI)² In fact this interaction has motivated many developing states to revise their legal regulations on FDI.

In literature, a number of thoughts are suggested regarding the effectiveness of legal regimes on foreign direct investment and their crucial role for attracting foreign investment³. The paper introduces comparative and empirical evidence in the context of existing literature to support its arguments and also discusses the outcomes of empirical investigation. For the purpose of empirical investigation, the author of this paper applied the qualitative semi-structured interview technique⁴. Furthermore, Azerbaijan and Turkey have also been selected for the purposes of this study. In order to understand how the divergent political regimes and laws on FDI are effective in promoting FDI in Azerbaijan and Turkey, the political regimes and state guarantees to foreign investors in these states are examined from a comparative perspective. The reason for choosing these two countries for comparison is that political regimes are quite different. Evidently, the legal regime of Azerbaijan is an authoritarian presidential system; however, Turkey is ruled by hybrid parliamentary regime⁵. Analysis of these two divergent regimes, political and democratic institutions, laws and foreign investment policy, may answer the following question: how the divergent political regimes and laws on FDI are effective in promoting FDI in Azerbaijan and Turkey?

I. AZERBAIJAN

The Republic of Azerbaijan is a dynamic emerging economy with a skilled workforce and the benefit of rich natural energy resources. The energy sector is the backbone of the Azerbaijani economy. Azerbaijan is richly endowed with natural resources and has a long history of oil and gas exploration. Azerbaijan’s confirmed crude oil reserves were estimated at 7 billion barrels in January 2012⁶. The oil sector is not new in Azerbaijan. The country is the one of the longest established oil-producing countries in the world which experienced an oil boom at the beginning of the twentieth century and thereafter served as one of the main refining centres within the former Soviet Union. The involvement of international oil companies in petroleum projects in Azerbaijan commenced with the activities of the Nobel brothers in the early 1870s⁷. In addition, “by 1897, the oil fields in Baku delivered more than 45% of the world’s crude oil. And a few years later, by the end of the century, these Russian-run wells accounted for more than half the total world output”⁸. In the context of Azerbaijan’s more recent history, the oil sector has played a key role in the economic and political development of the country, strengthening the country’s independence, protecting its territorial position and stimulating economic growth by attracting international energy investors.