New rules have amended the requirements for the employment of foreign workers. In order to employ foreign specialists, companies must obtain work permits from a local department for employment and social programmes from the available quota, as approved by the government annually.
The Law on Securities Markets 2007 sets forth the dual listing requirements for legal entities that wish to place their securities on a foreign stock exchange. The law specifies the conditions under which resident entities may issue shares outside Kazakhstan, but also raises questions as to which entities are subject to it and whether it applies to previously issued shares in addition to new issuances, among other things.
The Law on Gas and Gas Supply seeks to provide a framework for the developing gas market in Kazakhstan, particularly for liquefied natural gas, liquefied petroleum gas and associated gas. In so doing, it seeks to secure the country's energy and environmental safety and to prioritise domestic gas supply. However, practical questions remain as to how the law will work in conjunction with existing legislation.
In 2011 several new restrictions for obtaining work permits - affecting the ratios of foreign to local employees - were introduced. The government, apparently in response to a backlash from large international oil and gas companies operating in Kazakhstan, introduced exemptions in connection with certain major oil and gas fields. However, certain aspects of the legislation raise practical questions.
A recent Supreme Court decision has provided guidance to the energy industry by clarifying its interpretation of recent legislative changes that prohibited the resale of power by power-supplying organisations. Its ruling resolves an issue which had divided the two industry regulators in Kazakhstan.
A new law will shortly come into force to simplify norms in licensing legislation and lighten the burden for entrepreneurs by reducing the number of licences and permits for business activities. Among other things, when registering the termination of a legal entity's activities, it will no longer be necessary to submit an interim liquidation balance sheet and a notification of approval to the judicial authorities.
The concept of a 'corporate dispute' is relatively new to Kazakh law, having been introduced in 2008 by amendments to the Civil Procedural Code. More recently, the definition has been broadened significantly, bringing a wider range of disputes within the competence of the commercial courts.
The core elements of Kazakhstan's anti-money laundering regime are set out in the Law on Counteracting Money Laundering and Terrorism Financing. It defines the rights and obligations of legal entities and individuals which are subject to financial monitoring and clarifies the authority of the various state bodies that target money laundering and terrorism financing.
In addition to a signature bonus, commercial discovery bonuses and reimbursement of historical costs, subsoil users are subject to a number of specific taxes. These include the main minerals extraction tax - on varying rate scales for mining companies and oil and gas companies - and excess profits tax.
A number of corporate structures can be used to carry on business in Kazakhstan, but the most common forms are the limited liability partnership and the joint stock company. Officers of these entities must be aware that their actions - or, in some cases, their failure to act - may lead to civil, administrative or criminal liability.
Kazakhstan's biggest development in the field of restructuring in 2010 was undoubtedly the Special Financial Court of Almaty's decision to recognise a plan for BTA Bank. In part, the rescue was made possible by the provisions of the Restructuring Law, which is similar to UK and US corporate rescue regimes and is intended to allow bank restructurings to be recognised in London, New York and other leading financial centres.
New legislation demonstrates the government's wish to establish greater control over the subsoil industry and to introduce more mechanisms to monitor the performance of subsoil use contracts. The main innovations affect sector regulation and the approvals process, but other key changes affect national security, procurement and the right to international arbitration.
Proposed currency controls could see the imposition of a special currency regime. Its strongest impact would probably be on Kazakh resident exporters, requiring them to remove funds from offshore accounts and hold such funds in non-interest-bearing accounts in Kazakhstan, and to convert hard currency into tenge.
When two of Kazakhstan's systemically important banks defaulted on their debt in April 2009, it exposed a lack of legislation on consensual financial restructurings. A new law provides a procedure for restructuring a bank with the approval of creditors holding at least two-thirds of its obligations. It also introduces a framework for segregating a distressed bank's assets and creating a stabilization bank.
Amendments to the terminology for financial instruments in the Civil Code could have unforeseen consequences. Previously, the term 'derivative financial instrument' could be held to include derivative securities or derivative contracts, but its definition has been narrowed to cover only contracts. Among other things, this theoretically limits the capacity of Kazakh banks to enter into derivatives transactions.
The rules on litigation costs in the Code of Civil Procedure are straightforward and generally work well, but when litigation deviates from the standard scenario, their narrow language may give rise to unexpected or contradictory results. Fortunately, the courts often choose to take a simplified and practical approach.
Foreign investors involved in commercial litigation in Kazakhstan are often unprepared for the rigidity of the rules of evidence under the Civil Procedure Code and may not fully appreciate the significance of collecting appropriate evidence in advance.
The Agency for the Regulation of the Activity of the Regional Financial Centre Almaty (RFCA) has developed new listing rules for the special trading platform of the RFCA. The new rules do not apply to the entire Kazakhstan Stock Exchange, but similar regulations are due to be introduced by September 2008.
Under the New York Convention 1958, the Kazakhstan courts may set aside an arbitral award issued outside the member state if the award was made under its law. However, the position is far from clear-cut in practice and a Kazakh defendant may prefer to comply with an award even if it represents a breach of Kazakhstan’s public order requirements and exceeds the scope of the arbitration agreement.
Given Kazakhstan's economic reliance on its natural resources, it is surprising that aspects of court practice on questions of subsurface use have long been uncertain. A recent Supreme Court decision in favour of the government's right to terminate a subsurface use contract may indicate a new litigation risk for foreign investors.