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1、Creation 建立,Convention Establishing theMultilateralInvestment Guarantee Agency1985,1988,建立多边投资担保机构公约（汉城公约）,world bank group,IBRD:InternationalBank forReconstructionand Development,IDA:InternationalDevelopmentAssociation,IFC:InternationalFinance Corporation,ICSID:InternationalCentre forSettlement ofI
2、nvestment Dispute,MIGA:Multilateral InvestmentGuaranteeAgency,the creation of MIGA,MIGA was established in 1988 under the Convention Establishing the Multilateral Investment Guarantee Agency.AS a member of the World Bank Group(IBRD,IDA,IFC,MIGA,ICSID),MIGAs mission is to encourage foreign direct inv
3、estment(FDI)into developing countries to support economic growth,reduce poverty,and improve peoples lives by providing guarantees to foreign investors against loss caused by non-commercial risks.China is one of the founding member of MIGA,Objective and purposes,The objective of the Agency shall be t
4、o encourage the flow of investments for productive purposes among member countries,and in particular to developing member countries.To serve its objective the Agency shall issue guarantees against non-commercial risks in respect of investments in a member country which flow from other member countri
5、es;,Responsibilities of MIGA MIGA的职责,To serve its objective,the Agency shall:(a)issue guarantees against non-commercial risks(b)carry out appropriate complementary activities(辅助性活动）(c)Exercise such other incidental powers(附带权利）,status of the Agency,The Agency shall possess full juridical personality
6、 and,in particular,the capacity to:(i)contract;(ii)acquire and dispose of movable and immovable property;and(iii)institute legal proceedings.,Membership and Capital,Membership in the Agency shall be open to all members of the Bank and to Switzerland.First type:developed countries(investor)Second typ
7、e:developing countries(host state)The authorized capital stock of the Agency shall be one billion Special Drawing Rights 特别提款权(SDR 1,000,000,000).The capital stock shall be divided into 100,000 shares having a par value of SDR 10,000 each,which shall be available for subscription by members.,Subscri
8、ption of Shares 认购股份,Each original member of the Agency shall subscribe at par to the number of shares of capital stock set forth opposite its name in ScheduleA hereto.Each other member shall subscribe to such number of shares of capital stock on such terms and conditions as may be determined by the
9、 Council,but in not event at an issue price of less than par.No member shall subscribe to less that fifty shares.The Council may prescribe rules by which members may subscribe to additional shares of the authorized capital stock.,Division and Calls of Subscribed Capital 认购股份的区分和催缴,The initial subscr
10、iption of each member shall be paid as follows:(i)Within ninety days from the date on which this Convention enters into force with respect to such member,ten percent of the price of each share shall be paid in cash as stipulated in Section(a)of Article8 and an additional ten percent in the form of n
11、on-negotiable,non-interest-bearing promissory notes or similar obligations to be encashed pursuant to a decision of the Board in order to meet the Agencys obligations.(ii)The remainder shall be subject to call by the Agency when required to meet its obligations.,Structure of the Agency,The Agency sh
12、all have a Council of Governors 理事会a Board of Directors董事会a President 总裁and staff to perform such duties as the Agency may determine.,Risk coverage:MIGA provides non-commercial guarantee for investments made in developing states:,Currency Transfer:any introduction attributable to the host government
13、 of restrictions on the transfer outside the host country of its currency into a freely usable currency or another currency acceptable to the holder of the guarantee,including a failure of the host government to act within a reasonable period of time on an application by such holder for such transfe
14、r,Expropriation and Similar Measures:any legislative action or administrative action or omission attributable to the host government which has the effect of depriving the holder of a guarantee of his ownership or control of,or a substantial benefit from,his investment,with the exception of non-discr
15、iminatory measures of general application which governments normally take for the purpose of regulating economic activity in their territories,Breach of Contract:any repudiation or breach by the host government of a contract with the holder of a guarantee,when(a)the holder of a guarantee does not ha
16、ve recourse to a judicial or arbitral forum to determine the claim of repudiation or breach,or(b)a decision by such forum is not rendered within such reasonable period of time as shall be prescribed in the contracts of guarantee pursuant to the Agencys regulations,or(c)such a decision cannot be enfo
17、rced,War and Civil Disturbance:any military action or civil disturbance in any territory of the host country to which this Convention shall be applicable as provided in Article 66,Eligible investors for MIGA guarantee,Any natural person and any juridical person may be eligible to receive the Agencys
18、 guarantee provided that:(1)such natural person is a national of a member other than the host country(2)such juridical person is incorporated and has its principal place of business in a member or the majority of its capital is owned by a member or members or nationals thereof,provided that such mem
19、ber is not the host country in any of the above cases,(3)such juridical person,whether or not it is privately owned,operates on a commercial basis（1）该自然人是东道国以外的一会员国国民（2)该法人是在一会员国注册并在该国设有主要业务地址，或其多数资本为一会员国或几个会员国或这些会员国的国民所有。在上述任何情况下，该会员国都不是东道国。法人无论是否为私人所有，均在商业基础上经营。,Eligible investments for MIGA guara
20、ntees,(a)Eligible investments shall include equity interests,including medium-or long-term loans made or guaranteed by holders of equity in the enterprise concerned,and such forms of direct investment as may be determined by the Board.(b)The Board,by special majority,may extend eligibility to any ot
21、her medium-or long-term form of investment,except that loans other than those mentioned in Section(a)above may be eligible only if they are related to a specific investment covered or to be covered by the Agency.,合格的投资,(1)承保的投资既包括股权投资也包括直接投资。（2）承保的投资必须是新投资。(3)承保的投资必须是投放于合格东道国的投资。,Eligible Host Count
22、ries,1.Investments shall be guaranteed under this Chapter only if they are to be made in the territory of a developing member country.2.The Agency shall not conclude any contract of guarantee before the host government has approved the issuance of the guarantee by the Agency against the risks design
23、ated for cover.,合格东道国,1.只对发展中国家会员国境内所作的投资予以担保。2.东道国政府同意担保特定风险。,Payment of claims,The President under the direction of the Board shall decide on the payment of claims to a holder of a guarantee in accordance with the contract of guarantee and such policies as the Board may adopt.Contracts of guarante
24、e shall require holders of guarantees to seek,before a payment is made by the Agency,such administrative remedies as may be appropriate under the circumstances,provided that they are readily available to them under the laws of the host country.Such contracts may require the lapse of certain reasonab
25、le periods between the occurrence of events giving rise to claims and payments of claims.,总裁在董事会指导下，应根据担保合同和董事会制定的政策，决定对被保险人索赔的支付。担保合同应要求被保险人在机构支付索赔之前，寻求在当时条件下合适的、按东道国法律可随时利用的行政补救办法。担保合同可要求在引起索赔事件发生与索赔支付之间要有一段合理的期限间隔。,Subrogation,Upon paying or agreeing to pay compensation to a holder of a guarantee
26、,the Agency shall be subrogated to such rights or claims related to the guaranteed investment as the holder of a guarantee may have had against the host country and other obligorsThe rights of the Agency pursuant to Section(a)above shall be recognized by all members,代位权,当MIGA对投资者支付或同意支付赔偿金时，代位取得投资者对
27、东道国、其他债务人所拥有的有关承保投资的权利、索赔权，全体会员国应予以承认MIGA的代位权。,Voting-加权表决制度,In order to provide for voting arrangements that reflect the equal interest in the Agency of the two Categories of States listed in Schedule A of this Convention,as well as the importance of each members financial participation,each member
28、 shall have 177 membership votes plus one subscription vote for each share of stock held by that member.,MIGA的作用,1保障国际投资的非商业风险2弥补区域性和国家性担保机制不足3有利于发展中国家吸引外资发展经济4有利于东道国与投资者之间争端解决,对MIGA的几点评论,MIGA体制源于OPIC体制，又远高于OPIC体制;MIGA是当今世界南、北两大类国家之间经济上互相依存、冲突、妥协和合作的产物。这种妥协的结果之一，就是作为东道国的发展中国家在一定程序上自我限制本国在外国投资担保问题上的主权。妥协的另一方面的结果是MIGA公约成员国中的发达国家同意敦促本国投资者更加尊重东道国-发展中国家的政治主权和经济主权。MIGA机制不同于任何国家官办保险机制的突出特点，在于它对吸收外资的每一个发展中国家会员国，,同时赋以“双重身份”：一方面，它是外资所在的东道国，同时又是MIGA的股东，从而部分地承担了外资风险承保人的责任。,
