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Viewing cable 09ASTANA112, KAZAKHSTAN: 2009 INVESTMENT CLIMATE STATEMENT
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Reference ID | Created | Released | Classification | Origin |
---|---|---|---|---|
09ASTANA112 | 2009-01-22 00:46 | 2011-08-26 00:00 | UNCLASSIFIED | Embassy Astana |
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TAGS: PGOV EFIN ETRD ELAB KTDB OPIC USTR KZ
SUBJECT: KAZAKHSTAN: 2009 INVESTMENT CLIMATE STATEMENT
REF: 08 STATE 123907
ASTANA 00000112 001.2 OF 019
¶1. Per reftel, below is Post's submission for the 2009 Investment
Climate Statement for Kazakhstan.
¶2. BEGIN TEXT:
Kazakhstan
2009 Investment Climate Statement - Kazakhstan
Openness to Foreign Investment
Kazakhstan has made significant progress toward creating a market
economy since its independence in 1991. The European Union in 2000
and the U.S. Department of Commerce in March 2002 recognized the
success of Kazakhstan's reforms by granting it market economy
status. Kazakhstan also has attracted significant foreign
investment since independence. By July 2008, foreign investors had
invested a total of about $76.1 billion in Kazakhstan, primarily in
the oil and gas sector during the country's fifteen years of
independence. Following independence, the government created a
favorable regime for oil and gas investments at the same time that
it undertook other liberalizing economic measures and began an
ambitious privatization program.
Despite continuously increasing investment into Kazakhstan's energy
sector, concerns remain about a tendency on the part of the
government to challenge contractual rights, to legislate preferences
for domestic companies, and to create mechanisms for government
intervention in foreign companies' operations, particularly
procurement decisions. Together with vague and contradictory legal
provisions that are often arbitrarily and inconsistently enforced,
these negative tendencies feed a perception that Kazakhstan is less
than fully open to investment. Four major pieces of existing
legislation affect foreign investment. These are: 1) the 2003 law
"On Investment"; 2) the 2003 Customs Code;" 3) the 2007 law "On
Government Procurement, with recent amendments made in 2008; and 4)
the 2008 Tax Code . These four laws provide for non-expropriation;
currency convertibility; guarantees of stability in the legal
regime; transparent government procurement; and incentives in
certain priority sectors. However, inconsistent implementation of
these laws and reforms at all levels of government remains the key
obstacle to business in Kazakhstan.
There has been a trend in favoring domestic investors over
foreigners in most state contracts. Furthermore, amendments passed
in 1999 to the Oil and Gas Law require mining and oil companies to
use local goods and services. According to these "local content"
regulations, subsurface users in Kazakhstan are obligated to
purchase goods and services from Kazakhstan entities -- provided
that the local goods meet minimum project standards -- and to give
preference to the employment of local personnel. Prospective
subsurface users are required to specify in their tenders the
anticipated local content of their work, goods, and services. Since
2002, a designated government body must approve all tender
documents, participate in tender committees, and approve all tender
committee decisions, in order to ensure compliance. In December
2008, a new Subsurface Law was approved by parliament, superseding
legislation on oil production and exploration, mineral resources
mineral management, and production sharing agreements (PSAs). The
Law, expected to be signed by the President in January 2009, allows
the government to annul contracts in the extractive sector if they
are deemed to be harmful to Kazakhstan's economic security or
national interests. The legislation also requires separate
contracts for exploration and production operations, puts shorter
time limits on exploration contracts, enhances the government's
authority to terminate contracts not in compliance with the law, and
requires tax stability clauses in individual contracts to be
approved by parliament. In addition, under the terms of the
legislation, no future contracts would be structured as production
sharing agreements (PSAs), companies are required to establish equal
terms, conditions, and pay for Kazakhstani and foreign workers, and
the government would evaluate subsoil resource bids based on
ASTANA 00000112 002.2 OF 019
promised social contributions.
Tax experts consider Kazakhstan's tax laws to be among the most
comprehensive in the former Soviet Union. In January 2009,
Kazakhstan adopted a new Tax Code that will increase tax revenues
from the extractive industries. The new Tax Code will lower
corporate income taxes, the crude oil rent tax, and the value added
tax, while introducing new taxes for mineral extraction and excess
profits. Business associations and investment advisors are
concerned that the new code may undermine tax stability clauses in
existing and future contracts. The government has said it will
guarantee tax stability only for existing production sharing
agreements (PSAs) and for one major hydrocarbon project which has a
tax and royalty contract, if the contracts are ratified by
legislative acts of the Kazakhstani parliament.
The new Tax Code applies taxes universally and allows only a limited
set of exemptions. The code applies an international model of
taxation, based on the principles of equity, economic neutrality,
and simplicity. According to many experts, this code is an
improvement over its predecessor and a step forward in establishing
a transparent and effective tax system, particularly for the
non-extractive sectors.
Starting January 1, 2009 the corporate income tax rate will be
decreased from 30% to 20%. The rate will then be lowered to 17.5% in
2010, and 15% in 2011. The value-added tax (VAT) will continue to
be reduced every year as well. In 2006, the VAT was 16%, in 2007 -
14%, in 2008 - 13%, and in 2009 the VAT will be 12%. The
progressive social tax imposed on employees' earnings will have a
flat rate of 11%. The personal income tax rate for residents will be
10%. Depending on the specific type of income, non-residents
working in Kazakhstan are responsible for payment of income tax
rates that range between 5% and 15%.
In 2008, Kazakhstan introduced, adjusted, and ultimately abandoned
an export duty on crude oil and oil products. On April 8, Prime
Minister Karim Masimov signed a decree establishing the duty. Each
quarter thereafter, the Ministry of Finance reviewed the export duty
rate in light of average Brent crude prices and adjusted the amount
of the tariff according to a published formula. On December 29,
however, the Government announced that it would abolish the export
duty as of January 26, 2009.
In addition to concerns about tax stability, contract sanctity, and
tender transparency, companies in the oil and gas industry have
reported difficulty doing business for a number of other reasons,
including delays in obtaining work permits for expatriate employees,
alleged environmental violations followed by large fines,
inconsistent enforcement of a Kazakh language law, and unexpected
customs delays and documentation. In January 2003 President
Nazarbayev signed a new law "On Investments" that superseded and
consolidated past legislation governing foreign investment. The law
establishes a single investment regime for domestic and foreign
investors, and provides, inter alia, guarantees of national
treatment and non-discrimination for foreign investors. It
guarantees the stability of existing contracts, with the
qualification that new ones will be subject to amendments in
domestic legislation, certain provisions of international treaties,
and domestic laws dealing with "national and ecological security,
health and ethics."
The 2003 law provides for dispute settlement through negotiation,
Kazakhstan's judicial process, and international arbitration.
However, the law narrows the definition of investment disputes and
lacks clear mechanisms for access to international arbitration. U.S.
investors should note that the U.S.-Kazakhstan Bilateral Investment
Treaty, as well as the New York Convention, protect U.S. investor
access to international arbitration. Additionally, the Kazakhstani
Constitution, as well as the 2003 law "On Investments," specifies
that ratified international agreements have precedence over domestic
law. The May 2005 Law on International Agreements appeared to
contradict this legal hierarchy, setting precedence of the domestic
law of Kazakhstan over its international agreements However,
Kazakhstan amended this law in February 2007, eliminating this
ASTANA 00000112 003.2 OF 019
contradiction. Finally, in December 2004 Kazakhstan adopted a law
"On International Commercial Arbitration" (see "Dispute Settlement"
for full discussion).
The 2003 law currently contains investment incentives and
preferences based on government-determined sectoral priorities, and
provides for investment tax preferences, customs duties exemptions,
and in-kind grants.
According to provisions of the new Tax Code, investment tax
preferences such as ten-year corporate income tax exemptions and
exemptions from land and corporate property taxes will likely be
removed from the investment law via amendments expected in 2009.
However, preferences for some sectors in the form of custom duties
exemptions and in-kind grants will remain. (Customs duties
exemptions are limited to equipment that is destined for use in
production processes exclusively in Kazakhstan, and to imported
equipment/components if Kazakhstani-produced stocks are not
available or do not meet international standards.)
In 2001, Kazakhstan adopted transfer-pricing legislation, which
gives tax and customs officials the authority to monitor
export-import transactions in order to prevent the understatement of
earnings through manipulation of export prices. Foreign investors
are concerned that the government specifically rejected the use of
OECD standards for determining a proper market price under the
transfer-pricing legislation, creating instead a methodology that
fails to fully account for all cost and quality differences. The
government in effect holds that transfer-pricing can take place even
in transactions between unrelated parties, because the practice,
until recently, was defined by transaction prices that differ from
market prices by a deviation of 10%. Kazakhstan's deviation from
international methodology on this complicates the ability of firms
to obtain relief under treaties on avoidance of double taxation from
their home countries. This remains a contentious issue with
investors.
The new law on transfer pricing adopted in July 2008 will in the
opinion of its authors allow for improved control of transfer
pricing by applying the commonly accepted "arm's length principle."
This law is expected to come into force on January 1, 2009.
Foreign investors admit that the new law is more closely aligned
with international standards. However, there is concern that the
law may be applied not only to transactions with related parties,
but also to all international transactions, and may present a major
challenge in 2009. Driven by suspected government mandates to
generate revenues, it is suspected that tax authorities may apply
provisions of transfer pricing rules to all international
transactions of foreign enterprises.
Kazakhstani law holds that no sectors of the economy are fully
closed to investors, although there are sectoral limitations,
specifically a 20% ceiling on foreign ownership of media outlets and
49% restriction on foreign ownership in the telecommunications
sector. However, a December 2005 law lifted the restrictions on the
participation of foreign capital in the banking sector. A ban on
foreign bank and insurance company branches remains in force.
Finally, the 2005 Production Sharing Agreement law mandates that the
state oil company be a minimum 50% participant in new offshore
projects. In practice, investors may find that a joint venture with
a well-connected local partner is advantageous in navigating the
legal and political complexities of operating in Kazakhstan
Insurance supervision and licensing powers are exercised by the
Financial Supervision Agency. February 2006 amendments to the Law on
Insurance have eliminated participation restrictions for foreign
legal entities in insurance and re-insurance organizations in
Kazakhstan.
Restrictions also exist on foreign ownership of land in Kazakhstan.
See below (A.6 "Right to Private Ownership and Establishment").
The government plays a large role in overseeing foreign investment.
Government officials, sometimes at the highest levels, screen major
foreign investment proposals.
The new Subsoil Law reiterates the state's right of first refusal on
the purchase of shares in new exploration and production projects in
the extractive industries. In 2005, the Kazakhstani government
broadened its claim of priority purchase rights to include shares of
companies that have invested in the oil and gas sector. The same
amendments allow the government to block the sale of oil and gas
assets in the interest of "national security." Additional amendments
ASTANA 00000112 004.4 OF 019
to the Subsoil Law signed in December 2008 also assign the
government the right to exclude companies from participating in oil
and gas investment program tenders in the interests of "national
security."
Foreign firms operating in Kazakhstan frequently report harassment
by the Financial Police via unannounced inspections and other
methods. One company reported a request from the Financial Police
for confidential information on employees, with no apparent
connection to an ongoing investigation.
It is important to note that in practice the application of tax laws
has been uneven, and in some cases blatantly unfair. This has been
particularly true in cases where a company is involved in another,
unrelated dispute with the authorities. Foreign investors have
complained of a lack of evenhandedness in the authorities'
application of other laws or regulations as well. In some cases, the
investors have interpreted regulatory pressure as an effort to
extract bribes.
Investors should not assume that agreeing to a settlement with tax
authorities following an investigation or civil case will prevent
the pursuit of charges under criminal provisions. At times the
authorities have used criminal charges in civil disputes as a
pressure tactic.
By law and in practice, foreign investors are allowed to participate
in all privatization projects. There appears to be no discrimination
against foreign investors after an investment is made. However,
many foreign companies cite the need to protect their investments
from a near-constant barrage of decrees and legislative changes,
most of which do not "grandfather" existing investments. In
addition to arbitrary tax inspections, foreign investors also
complain of problems with closure on contracts, delays and irregular
practices in licensing, land fees, etc. Some foreign firms have
expressed concern that government organizations fail to live up to
their side of the contract, particularly regarding payment. This
often prevents the foreign partner from moving ahead with its
investment program. When this occurs, the investor is exposed to
government charges of non-performance and the real possibility that
the government will cancel the contract.
Foreign workers are required to have a work permit to work legally
in Kazakhstan. Obtaining these work permits can be difficult and
expensive. The government cites the need to boost local employment
by limiting the issuance of work permits to foreigners. U.S.
companies should consult legal firms for assistance (see A.5 for
details) in obtaining work permits. The work permits quota system
is based on the 1998 Law on Employment of the Population. Under
this system, the government limits the number of work permits
available to foreigners, based on the area of specialization and
geographic region.
In December 2007, Kazakhstan adopted new regulations on foreign
labor that the Ministry of Labor and Social Protection claims
simplify the issuance of work permits to foreigners, They do,
however, also place additional requirements on employers to support
the domestic labor market. According to the new regulations,
permits for foreign labor are issued only in the event that suitable
candidates cannot be found in country, which is subject to
verification and assessment by Kazakhstani labor authorities. Those
foreign employers that do receive permits for foreign laborers are
expected to meet specific terms of agreement that include the
training of Kazakhstani citizens to eventually fill positions held
by foreigners, the gradual overall replacement of foreign labor with
Kazakhstani citizens, and the creation of new jobs for domestic
workers in the event that production volumes increase. The scale of
these individualized terms is directly proportional to the number of
foreign workers hired. Kazakhstani labor authorities are expected
to complete their review of work permit applications for foreigners
within 20 days. If awarded, employers must provide authorities with
documents within 10 days, guaranteeing the prompt departure of
foreigners after the expiration of their permits. From 2003 -2008,
the quota has steadily increased from 0.14% to 1.6%. However,
because of the current economic crisis conditions, the government
has reduced the quota for foreign labor by half; in 2009 it will be
only 0.75% of the active labor force.
Conversion and Transfer Policies
There are minimal restrictions on converting or transferring funds
associated with an investment into a freely usable currency at a
ASTANA 00000112 005.2 OF 019
legal market-clearing rate.
In 1996, Kazakhstan adopted Article 8 of the IMF Articles of
Agreement, which stipulates that current account transactions, such
as currency conversions or the repatriation of investment profits,
will not be restricted. In 1999, the Government and National Bank of
Kazakhstan announced that the national currency would be allowed to
float freely at market rates, thus abolishing the previous managed
exchange rate system.
No distinction is made between residents and non-residents when
opening bank accounts. There are no restrictions whereby different
types of bank accounts are required for investment or import/export
activities. For non-residents, money transfers in currency
associated with foreign investments, whether inside or outside of
the country, can take place without restriction. The National Bank
permits non-residents to pay wages in foreign currency. Foreign
investors may convert and repatriate tenge earnings made inside
Kazakhstan.
In June 2005 the President signed the Law on Currency Regulation and
Currency Control. This law lifted restrictions on money transfers:
both residents and non-residents are allowed to take up to $10,000
in cash out of the country without documentation of the money's
origin. However, the transfer of cash amounts exceeding $3,000 must
be declared; the transfer of amounts exceeding $10,000 must be
accompanied by the certification of the National Bank. Beginnning
January 1, 2007 all licensing requirements and procedures for
foreign currency operations were elimiated. Since that time,
agencies conducting transactions with foreign currency, including
bank payments and transfers relating to capital movements, either
have to simply register or notify the central bank of their
operations.
The National Bank requires an "Import [or] export transaction
passport," ostensibly for the purpose of currency control. The
document, which re-states information from other documents,
complicates import and export processing. There is a real question
whether the law is effective for its stated purpose - to ensure that
the proceeds from export sales are returned to Kazakhstan, and to
prevent money laundering and fraudulent over-invoicing of imports.
In 2008, the National Bank announced impending amendments to the Law
on Currency Control that would further liberalize currency controls,
including an increase on the ceiling for transactions requiring
passports from $10,000 to $50,000.
In July 2006, Kazakhstan adopted an amendment to its Customs Code,
requiring submission of export declaration forms of country of
origin for bringing goods into Kazakhstan. This resulted in an
unintentional virtual shutdown for imports from many countries,
particularly from the United States. The July amendment was
repealed in November, ending the problem.
The U.S. Embassy is not aware of any concerns with regard to
remittance policies or availability of foreign exchange for
remittance of profits.
In 2001, the government announced an amnesty for all Kazakhstani
citizens repatriating cash or transferring money during a 30-day
period. The legalized money was not taxed and became available to
its owners at the end of the amnesty period. Kazakhstanis
repatriated $480 million under this amnesty, of which almost 90% was
brought to banks in the form of cash. Another amnesty, which
concluded on August 1, 2007, resulted in legalization of nearly $7
billion in property.
Based on rules adopted in late 2005 relating to the control of
currency turnover and capital flows, the National Bank regularly
monitors currency operations of selected non-residents. This
procedure primarily affects the following sectors: the oil and gas
industry, construction, mining, as well as companies providing
architectural, engineering and industrial design services. According
to the National Bank, this monitoring will furnish the National Bank
with better statistical data on the balance of payments and external
debt.
Expropriation and Compensation
The Investment Law of 2003 represents a step back from the clarity
of the 1994 law with regard to expropriation and compensation. The
2003 law allows nationalization by the state in cases "as provided
in legislative acts of the Republic of Kazakhstan." Unlike the 1994
law, it does not provide clear grounds for expropriation.
Similarly, the 1994 law required "prompt, adequate and effective"
ASTANA 00000112 006.2 OF 019
compensation at fair market value, with interest. The new law
differentiates between nationalization and requisition, providing
full indemnification of the investor in the case of the former, but
only payment of market value in the case of the latter. Bilateral
investment treaties (BITs) between Kazakhstan and other countries,
including the U.S., also refer to compensation in the event of
expropriation.
There has been one case of legal expropriation of a foreign
investor's property for public purpose. The investor ultimately
submitted the case for international arbitration. In May 2006, after
lengthy delays and negotiations, the government paid the amount
awarded by the arbiter.
Some foreign investors have encountered serious problems short of
expropriation. In one instance, in 1996, three foreign companies
were forced to relocate their offices under pressure from the
government. In 1997, investors, after reviving an important mine,
found they could not obtain export licenses for their ore, although
the right to export was written into their contract. The same year
another investor alleged forgery and fraud by government officials,
claiming its employees had been physically threatened in a
management dispute at its ferro-alloy venture in northern
Kazakhstan.
The Embassy is aware of one case, in 1992, of government action
tantamount to expropriation, when a U.S. company was deprived of its
rights to explore and develop an oil deposit in Atyrau Oblast. In
1999, the Stockholm Arbitral Court found that the government's
action was tantamount to expropriation. After the U.S. Embassy
raised the case with the government, it paid in full the amount of
compensation called for in the arbitral award.
Dispute Settlement
There have been a number of investment disputes involving foreign
companies in the past several years. While the disputes have arisen
from unrelated, independent circumstances, many are linked to
alleged breaches of contract or non-payment on the part of
Kazakhstani state entities. Some disputes relate to differing
interpretations of joint-venture agreement and production sharing
agreement (PSA) contracts; one questions the legality of the
government's use of ex-post facto regulations governing value added
taxes. The disputes involve, in some instances, hundreds of
millions of dollars. A recurring theme remains the
unpredictability of actions taken by tax authorities and other
regulatory agencies. Kazakhstan is still in the process of building
the institutional capabilities of its court system. Until this is
complete, the performance of courts in the country will be less than
optimal. Problems also arise in enforcing judgments. Given a
relative lack of judicial independence, there is ample opportunity
for interference in judicial cases.
General commercial law principles are established in Kazakhstan's
Civil Code.
The 2003 law "On Investments" defines an investment dispute as "a
dispute ensuing from the contractual obligations between investors
and state bodies in connection with investment activities of the
investor." It states that such disputes can be settled by
negotiation, in Kazakhstani courts, or through international
arbitration. According to the law, disputes not falling within the
above-noted category "shall be resolved in accordance with the laws
of the Republic of Kazakhstan." While some investors find this
legislation problematic since it does not address disputes between
private entities, others believe that Kazakhstan's Civil Code and
Civil Procedure Code provide private parties with recourse to
foreign and/or third party courts.
Additionally, in December 2004, Kazakhstan adopted a law on
international arbitration. The law appears to give broad authority
for judicial review of arbitral awards in Kazakhstan. An early test
case yielded decidedly mixed results. In 2005, a U.S. company became
embroiled in a dispute over payment for the sale of its shares in a
joint venture to a group of Kazakhstani companies. The London Court
of International Arbitration (LCIA) issued a preliminary ruling
ordering that the shares be frozen pending its final decision. The
acting Kazakhstani court, however, ignored the LCIA's ruling, and
proceeded with its own hearings. The case was ultimately decided by
the Supreme Court of Kazakhstan in the U.S. company's favor. In
January 2006, however, the Astana City Court relied on an
international convention loophole to decline the LCIA's award of
ASTANA 00000112 007.2 OF 019
legal costs to the U.S. firm on the grounds that doing so would be
detrimental to "public order" in Kazakhstan. In May 2006, that
decision was overturned, and the legal costs were awarded.
Kazakhstan has been a member of the International Center for the
Settlement of Investment Disputes (ICSID) since December 2001.
Any international arbitral award rendered by the International
Center for the Settlement of Investment Disputes (ICSID), any
tribunal applying the United Nations Commission on International
Trade Law Arbitration rules, the Stockholm Chamber of Commerce, the
London Court of International Arbitration, or the Arbitration
Commission at the Kazakhstan Chamber of Commerce and Industry
should, by law, be enforced in Kazakhstan
The U.S.-Kazakhstan Bilateral Investment Treaty can serve to
buttress the law "On Investment" in this area. Kazakhstan ratified
the New York Convention on the Recognition and Enforcement of
Foreign Arbitral Awards in 1995.
Creditor rights are set forth clearly under the current law on
bankruptcy. However, the 1997 bankruptcy legislation is hindered by
its complexity and numerous subsequent amendments, resulting in
considerable misapplication in practice. The Committee on Work with
Insolvent Debtors, operating under the umbrella of the Ministry of
Finance, is Kazakhstan's official bankruptcy agency.
The Law "On Bankruptcy" approved in 1997 was amended in May 2007,
and again in July 2008. It contains a detailed list of creditors'
rights and prescribes a mechanism for their enforcement. The 2008
amendments define a comprehensive list of Governmental authorities
in bankruptcy procedures, and expand the rights of enterprises
during possible rehabilitation procedures.
Monetary judgments are normally made in domestic currency.
In general, the Government of Kazakhstan has a mixed record of
addressing investment disputes. Foreign investors have often had to
endure protracted negotiations. Most investors prefer to handle
investment disputes privately, rather than make their cases public.
In addition, the law "On Investments" restricts recourse to
international arbitration and places more reliance on the
Kazakhstani judicial system for dispute resolution. The U.S. Embassy
advocates on behalf of U.S. firms with investment disputes.
Performance Requirements and Incentives
The Investment Committee under the Ministry of Industry and Trade is
responsible for monitoring the fulfillment of obligations undertaken
by investors. If the committee determines that a company has not
complied with its financial or other contractual obligations, the
government may revoke the operating license of the company.
With the exception of investments in oil production or mining, rules
on local content and local sources of financing vary from contract
to contract. Typically, an investor's obligations might include an
obligation to train local specialists and contribute to the social
development of the respective regions.
Technology transfers frequently occur and sometimes are written into
contracts, but are not explicitly required for foreign investment.
The Investment Law of 2003 provides tax preferences, customs duties
exemptions, and in-kind grants as incentives for investment in
government-determined priority sectors. To obtain the preferences,
the investor enters into a contract with the Investment Committee.
Under the law, the government may rescind such incentives, and
collect back payments on duties, etc. including fines, if the
investor fails to fulfill contractual obligations. The early 2006
amendments to the Investment Law eased compliance and audit
requirements for firms wishing to qualify for the preferences. The
law provides the same preferences for domestic and foreign
investors. Preferences are, however, determined on a case-by-case
basis. The Ministry of Industry and Trade reported that for the last
years it signed 400 contracts for a total of about $7-8 billion, in
which such preferences were extended. Roughly a quarter of these
investments had foreign involvement.
The preferences system echoes the government's policy of
diversifying the economy away from the extractive sector and largely
focuses on selected clusters. The overall list contains 245 types of
activities grouped into 36 categories. The system applies to new
enterprises as well as to existing enterprises making new
investments; the duration of the tax preferences increases with the
size of such investments. The government is, however, expected to
amend the Investment Law in 2009, thereby removing most of the
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previously enumerated preferences in an attempt to increase
transparency and promote more uniform application of tax codes.
In 2006-2007, the government created four large state-owned holding
companies; Samruk, Kazyna,, KazAgro, and Samgau. The Samruk State
Holding Company, modeled on Singapore's Temasek, manages the state's
shares in a growing number of large enterprises. The Kazyna
Sustainable Development Fund oversees the government's development
institutions aiming to stimulate the country's non-extractive sector
and diversify the economy. KazAgro manages the state's agricultural
holdings. Samgau, the newest holding, is charged with stimulating
the development of domestic know-how in the high-tech sector. In
2007, the government announced formation of Social Entrepreneurial
Corporations (SECs). Charged with managing regional government's
holdings, SECs are meant to serve as a link between business and
regional governments. Most recently, in October 2008, the
Kazakhstani government announced as part of its program to deal with
the effects of the global financial crisis the merger of Samruk and
Kazyna, as well as the regional SECs, into the Samruk-Kazyna
National Welfare Fund.
There are no known cases in which U.S. or other foreign firms have
been denied participation in government-financed or subsidized
research and development programs on a national basis. The
Kazakhstani government has recently taken a strong interest in
dedicating state resources to the support of research and
development. How such projects will be administered in practice
remains to be seen.
The government has liberalized its trade policies and has passed
legislation to begin bringing its legal and trade regimes into
conformity with World Trade Organization (WTO) standards. Kazakhstan
submitted its Memorandum on the Foreign Trade Regime (MFTR) in 1996
and the first round of consultations on WTO accession took place in
¶1997. Kazakhstan has made significant progress in implementing a
legal framework necessary for accession and signed bilateral
protocols on market access for goods and services with several of
its major trading partners. As of January 1, 2009 Kazakhstan had
completed bilateral negotiations with 21 countries out of 26 members
of the Working Party. Kazakhstan is also a member of the Eurasian
Economic Community (EEC), along with Russia, Kyrgyzstan, Belarus,
Tajikistan, and Uzbekistan. Armenia, Moldova and Ukraine currently
have observer status. In 2006, Kazakhstan, Russia, and Belarus
announced the formation of a trilateral customs union. There are
plans to eventually expand it to include other EEC countries. The
union aims to bring about coordinated customs procedures and a high
degree of uniformity in its members' external tariffs. The
government's working assumption appears to be that the country will
enter the WTO before the customs union will enter into force,
However, the global financial crisis has increased the political
appeal of regional integration in some governmental circles.
Kazakhstan permits the importation of goods from EEC partners and
certain developing or less-developed countries either free of duty,
or at a reduced rate. There are no special requirements for engaging
in trade-related activities. In keeping with internationally
accepted practices, registration as an entrepreneur, legal entity,
or branch/representation office is required.
Right to Private Ownership and Establishment
Foreign and domestic private entities have the right to establish
and own business enterprises and to engage in all forms of
remunerative activity. Private entities can freely buy and sell
interests in business enterprises. However, state-owned enterprises
do sometimes enjoy better access to markets, credits, and licenses
than private entities.
Kazakhstan's constitution provides that land and other natural
resources may be owned or leased by persons who are Kazakhstani
citizens according to conditions established by law. The 2003 Land
Code allows citizens of Kazakhstan to own agricultural land and
urban land with commercial and non-commercial buildings and
complexes, including dwellings and land used for servicing these
buildings. Under the 2003 Land Code, only Kazakhstani citizens
(natural and legalized) and Kazakhstani companies may own land. The
Land Law does not allow private ownership for the following types of
land:
-- land used for national defense and national security purposes;
-- specially protected natural territories, resorts, recreational
land and territories of a historical and/or cultural significance;
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-- forests, water reservoirs (lakes, rivers, canals, etc.),
glaciers, swamps, etc.;
-- public areas (urban or rural settlements);
-- main railways and public roads;
Short-term land leases may last for up to five years. The maximum
period for long-term land leases are 49 years. Foreigners may rent
agricultural land for up to 10 years. Foreigners may also own
agricultural land through either a Kazakhstani-registered joint
venture or a full subsidiary.
Protection of Property Rights
Secured interests in property (fixed and non-fixed) are recognized
under the Civil Code and the 2003 Land Code. Mortgage lending grew
dramatically in recent years, though decelerated in 2007-2008
because of the global financial crisis. A credit bureau system does
exist, but is in very early stages of development. The Ministry of
Finance has created a national mortgage agency, which issues bonds
secured by mortgages purchased from banks. All property and lease
rights for real estate must be registered with special
government-owned Real Estate Centers, which exist in cities and
rural district QQQ[8,uBO rights (IPR). In 2004, Kazakhstan ratified the 1997 World
Intellectual Property Organization (WIPO) Copyright Treaty and the
WIPO Performances and Phonographs Treaty, and amended the Copyright
Law to affirmatively protect pre-existing works and sound
recordings. In 2005, Kazakhstan amended its Criminal and Civil Codes
to make IPR crimes easier to prosecute and to toughen penalties for
violators. The 2005 amendments played a significant role in USTR's
2006 decision to remove Kazakhstan from the Special 301 Watch list.
While Kazakhstan has demonstrated a commitment to improving its IPR
regime, substantial weaknesses, particularly in the area of civil
dispute resolution, still remain.
Patents and trademarks: Patent protection is available for
inventions, industrial designs and prototypes. Patents for
inventions are available with respect to processes and products that
are novel and have industrial applications. However, patent
protection for certain types of products and processes -- such as
layout designs and plant variety - is not yet available. The
National Institute of Intellectual Property performs formal
examination of patent applications.
Patents for inventions are granted for a period of 20 years;
patents for industrial designs are granted on a preliminary basis
for five years. This period may be extended for an additional 10
years if the preliminary patent is converted to a patent. Prototypes
are granted a five-year initial period of protection, with the
possibility of an additional three-year extension. Unsuccessful
applicants have the right to appeal decisions of the National
Institute of Intellectual Property and the Committee for
Intellectual Property Rights. Kazakhstan is a member of the
Moscow-based Eurasian Patent Bureau and the Munich-based European
Patent Bureau.
Trademark violation is a crime. Enforcement has historically been
questionable, but U.S. companies are generally confident that their
trademarks are protected in Kazakhstan. Still, imported counterfeit
goods can commonly be found at local markets. There are marked
disparities in fees charged to domestic patent and trademark
applicants, as compared to foreign applicants. Applications for
trademark, service mark and appellations of origin protection should
be filed with the National Patent Office and approved by the
Committee for Intellectual Property Rights. Trademarks and service
marks are afforded protection for a period of 10 years from the date
of filing.
Copyrights: The Law on Copyrights and Related Rights was enacted in
¶1996. The law is largely in conformity with the requirements of the
WTO TRIPS Agreement and the Berne Convention.
In late 2006, the government stated its plans to provide customs
officials with ex officio authority to seize counterfeit products at
the border. However, appropriate legislation has not been passed.
Complicating the issue is the government's concern that granting ex
officio powers may exacerbate corruption at customs checkpoints.
Amendments to the Administrative, Criminal and Civil Procedural
Codes have been adopted to bolster IPR enforcement capabilities. IPR
ASTANA 00000112 010.2 OF 019
enforcement measures, while still somewhat sporadic, are
increasingly robust. Prosecutions, under both the Criminal and
Administrative Codes, have led to a steady legitimization of the
domestic trade in copyrighted material. Progress in IPR protection
through civil courts is less pronounced as the judicial system
develops the expertise necessary to resolve the more complex civil
disputes.
Illegal software development and manufacture generally is not
conducted in Kazakhstan; Russia and Ukraine are believed to be the
major sources of bootleg software to the local market.
Kazakhstan ratified the Berne Convention for the Protection of
Literary and Artistic Works in 1998 and the Geneva Phonograms
Convention in 2000.
Transparency of Regulatory System
Transparency in the application of laws remains a major problem in
Kazakhstan and an obstacle to expanded trade and investment. Foreign
investors complain of changing standards and of corruption. While
foreign participation is generally welcomed, some foreign investors
point out that the government is not always even-handed and
sometimes reneges on its commitments. Although the Investment
Committee of the Ministry of Industry and Trade was established to
facilitate foreign investment, it has had limited success in
addressing the concerns of foreign investors.
Opportunities for public comment on proposed laws and regulations
are sporadic and generally limited. Often, contradictory norms
hinder the functioning of the legal system. While Kazakhstan has
recently defined more clearly which laws take precedence in the
event of a contradiction, it has become clear that stability clauses
granted investors under previous versions of the Foreign Investment
Law or other legislation may not necessarily protect investors from
changes in the legal and tax regulatory regime. The 2003 Investment
Law holds that contracts signed subsequent to its enactment may be
subject to amendments in domestic legislation and international
treaty provisions that change "the procedure and conditions of the
import, manufacture, and sale of goods subject to excise duties. As
an additional complication, oblast authorities may create additional
bureaucratic encumbrances, especially in the licensing and issuance
of permits..
Kazakhstan, by law, will provide compensation for violations of
contracts that were properly entered into and guaranteed by the
government. Where the government has merely "approved" or
"confirmed" a foreign contract, Kazakhstan's responsibility is
limited to performing administrative acts necessary to facilitate
the subject investment activity (acts "concerning the issuance of a
license, granting of a land plot, mining allotment, etc.").
Kazakhstan's institutional governance is weak, further adding to the
problems of transparency in commercial transactions. Senior
government officials have a large say in minor and major
transactions, and decisions are often made behind closed doors. A
1995 Licensing Law established the legal framework for licensing
activities in Kazakhstan. It requires the relevant agency to issue a
license within one month of a company's submitting all required
documents. The law was further amended in 1998, 2005, and January
¶2007. The 2007 amendments simplified procedural requirements for
issuing licenses, reduced the number of licensed activities from 426
to 349, and introduced a mechanism to help prevent the extension of
this list by other legal acts. On a whole, as estimated by experts,
licensing for the period 2004-2007 was reduced three-fold, while
licensing in agriculture, education and health care has been
decentralized. However, licensing remains a problematic area for
business, particularly for small- and medium- sized enterprises.
Efficient Capital Markets and Portfolio Investment
Kazakhstan's efforts to create a sound financial system and a stable
macroeconomic framework have been notable among former Soviet
republics. Much progress has been made in creating and implementing
an adequate legal framework. In comparison with other parts of the
economy, reform of the financial system has been deeper and more
effective. The financial system has started to mediate financial
resource flows and direct them to the most promising parts of the
economy. Official policy is clearly supportive of credit allocation
on market terms and the further development of legal, regulatory,
and accounting systems that are consistent with international norms.
The National Bank has demonstrated a willingness to pursue monetary
ASTANA 00000112 011.2 OF 019
tightening in response to inflationary pressures. In 2006, it raised
the refinancing rate twice as well as toughened reserve requirements
for second-tier banks. Capital inflows and commodity exports from
2001-2007 enabled the National Bank to accumulate foreign exchange
reserves, and at the same time to lower interest rates and maintain
inflation in the single-digit range. The global financial crisis
has dramatically reduced capital inflows forcing the National Bank
to slightly adjust its monetary policy. In 2008, the refinancing
rate was reduced from 11% to 10% and reserve requirements for
second-tier banks were softened. As of December 31, 2008, the net
gold and hard currency reserves of the National Bank stood at $19.4
billion; the total gold and hard currency reserves of Kazakhstan,
including National Bank reserves and reserves accumulated in the
National (Oil) Fund, reached $46.7 billion, marking 21% growth
during 2008. The National Bank has pursued market-based policies
that have contributed to financial sector development and to
exchange rate stability. In 1999 the National Bank created a deposit
insurance system in order to attract the nearly $1 billion in cash
it estimated people were hoarding at home. Since then, private
deposits have grown forty-fold, from less than $300 million in
November 1999 to $12.27 billion in November 2008.
To better support the banking sector during the global economic
crisis, the Government has increased the maximum limit for deposit
insurance seven-fold from 700,000 tenge (just under $6,000) to 5
million tenge (about $42,000).
Most domestic borrowers receive credit from Kazakhstani banks.
However, foreign investors find the margins taken by local banks and
the collateral required for credit to be very onerous. It is usually
cheaper and simpler for them to use retained earnings or borrow from
their home country. The Kazakhstani Stock Exchange is struggling to
gain momentum and, as such, not yet a realistic source of funds (see
below). Since 1998, Kazakhstani banks have placed Eurobonds on
international markets and obtained syndicated loans, the proceeds of
which have been used to support domestic lending. Leading
Kazakhstani banks have been able to obtain reasonably good ratings
from international credit assessment agencies. The National Bank
and the Financial Supervision Agency (FSA) supervise the banking
system and have overseen a steady consolidation and strengthening of
it.
The global liquidity crunch, which hit in late summer 2007,
presented a substantial challenge to the Kazakhstani banking system,
which had come to rely heavily on external borrowing over the
preceding five-year period. Kazakhstani banks had been directing
much of the borrowed funds into the country's construction and real
estate sectors, particularly in the form both of construction
financing and for mortgages for new housing in Astana and Almaty.
The sudden global liquidity dry-up abruptly left some leading
Kazakhstani banks unable to continue their aggressive external
borrowing, forcing them to curtail their domestic lending activity.
While policymakers widely saw this development as a healthy
correction in view of the preceding liquidity glut, the National
Bank of Kazakhstan and the government introduced measures in late
2007 to provide liquidity to the banking system and inject capital
in the cooling construction sector. Continued world-wide financial
turmoil, marked by falling commodity prices and increasing
unemployment have exacerbated the situation of Kazakhstan's largest
banks. In October 2008, the Kazakhstani government announced
stabilization plans that include the purchase of 25% ownership
stakes of Kazakhstan's four largest private banks, thereby injecting
an anticipated additional $4 billion in to the banking system.
Since 1999, a market for debt securities has been rapidly developing
in Kazakhstan. Several dozen bank and non-bank corporations - large
and small - have issued bills, notes and bonds with maturities
ranging from three months to seven years. Earlier issues have
matured and been redeemed; so far, there have been no defaults.
Rates for borrowers have declined on average from approximately 16%
in September 1999 to approximately 9% in 2006. Maturities have
increased from 1.5 years to up to 10 years during the same period.
During the first ten months of 2008 the stock exchange demonstrated
an intense interest in debt securities of high quality, with the
number of transactions involving corporate bonds increasing 2.5
fold. By the end of 2008, the yield index for corporate bonds was
12.3%. Kazakhstan's pension system reform has boosted the bond
market by creating a pool of capital. The market for fixed-income
ASTANA 00000112 012.2 OF 019
securities has grown from $74,000 in September 1999 to over $12.5
billion in December 2008.
In 2008, the yield rate on middle-term government notes was 8.94% at
maximum. Longer-term government notes (with maturities up to 10
years) were offered at 9.27%.
The Kazakhstani Stock Exchange (KSE) has been in operation since
¶1997. In 2008, the floors of the Kazakhstani Stock Exchange and
Almaty Regional Financial Center (AFC) were merged and new listing
rules were introduced. As of December 2008, KSE and AFC had 101
registered members, of which 52 are listed as category "A" fully
operational financial institutions.
Inadequate financial records prevent many other companies from being
put on the exchange. Moreover, company managers fear diluting
control of their enterprises by selling more shares.
As of October 1, 2008, the total capitalization of the KSE was
$58.87 billion, or 46.8% of GDP. This negative trend of declining
value has continued since the mid- 2007, and 2008 was marked by a
decrease in the capitalization of the stock exchange in both the
absolute value of total capitalization and capitalization relative
to GDP .
Trading on the KSE is overwhelmingly dominated by block trades,
liquidity is low, and the spreads are extremely wide. In 2006,
several large Kazakhstani companies issued initial public offerings
on the London Stock Exchange (LSE). In compliance with a 2006 law
requiring any foreign IPO by a Kazakhstani company to be accompanied
by a domestic issuance, these companies also offered shares on the
KSE. However, despite these offerings and the Kazakhstani pension
funds' (see below) tentative moves to invest in KSE-traded shares,
the exchange remains in a very early stage of development. Due
largely to Kazakhstani companies' recalcitrance to dilute ownership
and provide extensive disclosure, the Kazakhstani debt market is
substantially more developed. The plans for the "Almaty Financial
Center" (see below) aim to spearhead the development of Kazakhstan's
financial markets.
The Financial Supervision Agency (FSA), Kazakhstan's main financial
regulator, has broad authority over the banking and insurance
sectors, as well as the stock market. The FSA is financed from the
National Bank's budget and subordinated to the President of
Kazakhstan.
In 1998, the government introduced an accumulative pension system
that requires all employed persons to contribute 10% of their salary
to the pension funds. As of November 2008, the 14 funds (13 private
and one state-owned) operating in Kazakhstan held approximately
$11.5 billion in pension savings. Custodian banks hold pension
assets. Asset management companies invest the contributions on
behalf of the pension funds. While the government provides specific
restrictions on how the pension funds may invest, these restrictions
were relaxed in 2006, allowing some involvement in Kazakhstani
equities. As of 2008, pension assets must still be invested in
specific categories of securities, including corporate and
government bonds and securities issued by foreign governments.
Pension funds overall did not fare well in 2008 because of global
losses and risky investment policies. For the period of
January-November 2008, eight major pension funds had total losses
amounting to $99.3 million. The government planned to sell some
shares of state enterprises on the national stock market, partly to
provide a more profitable alternative vehicle for the investment of
pension fund assets. Amendments made to pension fund legislation in
November 2008 guarantee the preservation of pension savings, and
grant individual investors the right to choose either a
conservative, moderate, or aggressive type of individual investment
portfolio. In November 2008, the government also announced plans to
use accumulated pension funds in housing and infrastructure projects
as part of its financial stabilization package,
There appear to be no "cross-shareholding" or "stable shareholder"
arrangements used to restrict foreign investment in private firms
through mergers and acquisitions. Joint stock companies may not
cross-hold more than 25% of each other's stock unless they have an
exemption codified by law and may not exercise more than 25% of the
votes in a cross-held joint stock company. Kazakhstani law
recognizes companies as "related" if one company or legal entity
holds more than 20% of the shares of another. However, the owning
company may not vote more than 25% of the total shares at the
general meeting of shareholders of the related company. The general
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meeting must approve various corporate actions, such as mergers and
acquisitions. This rule applies to all persons, domestic or foreign.
There have been very few hostile takeovers in Kazakhstan, primarily
because there are few publicly traded firms. Defensive measures are
not targeted toward foreign investors in particular. Current
legislation provides a legal framework for takeovers. The Civil Code
requires a company that has purchased a 20% share in another company
to publish information about the purchase.
The mutual investment fund industry remains small but is growing
rapidly. As of October 1, 2008, total assets of the mutual
investment funds amounted to $2.38 billion, representing a 105%
increase when compared to October 2007 figures. Investment in
equity of legal entities and Kazakhstani corporate securities remain
a significant share of the consolidated mutual fund investment
portfolio.
The 1998 Law on Joint Stock Companies provides the basis for the
regulation of open and closed-type joint stock companies. It also
contains clauses to protect investors in often-abused circumstances,
such as:
-- issuance of additional shares;
-- maintenance of charter capital and restrictions on payments of
dividends;
-- re-purchase by a company of its own shares;
-- debt-to-equity conversions;
-- fiduciary duties imposed on company officers;
-- proxy votes;
-- independent audit; and
-- the determination of asset values during the sale of company
property.
The Law on Joint Stock Companies also regulates tender offers for
stock of open joint stock companies by requiring the purchaser to
notify the Financial Supervision Agency and the target company of
their intention to purchase 30% or more of the target company and,
after such purchase, to make an offer to all remaining shareholders
to purchase their shares at the average price during the last six
months before the purchase.
There are no laws or regulations specifically authorizing firms to
adopt articles of incorporation or associations that limit or
prohibit foreign investments. The Law on Joint Stock Companies,
however, allows charter limits on the number of shares or votes that
one shareholder may have.
In March 2007, the Government accepted amendments to legislation
regarding the protection of minority stockholders' interests. The
enactment of this law was prompted by numerous violations of
minority stockholders' interests. In addition, this step was driven
by the Government's intention to promote the development of stock
exchange.
Standards, including sanitary and phyto-sanitary standards, are
promulgated solely by the Committee for Technical Regulation and
Metrology (Gosstandard). Proposals for adoption, amendment, or
abolishment of state standards are normally prepared by technical
committees constituted by Gosstandard, and may include producers,
scientific and engineering associations, and technical experts.
Foreign participation in the standardization process is regulated by
international multilateral and bilateral agreements.
Political Violence
There have been no incidents of politically-motivated violence
against foreign investment projects. Kazakhstan has been stable
since independence. Politically-motivated civil disturbances remain
exceptionally rare. Kazakhstan has good relations with its
neighbors. The government continues to express concern over the
security of its borders with Kyrgyzstan and Uzbekistan, which it
views as vulnerable to penetration by extremist groups.
Kazakhstan's 2007 parliamentary elections took place without
violence or unrest. President Nazarbayev's Nur Otan party won every
seat in the lower house of parliament with an overwhelming majority
of the votes. In its assessment, the OSCE noted that the election
did not meet a number of OSCE commitments and international
standards for democratic elections. Although opposition groups
denounced the election as fraudulent, there were no significant
demonstrations against the announced results. The next parliamentary
elections are scheduled to take place in 2012.
The February 2006 murders of a prominent opposition politician and
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his two associates were perceived by opposition parties as
politically motivated. The former chief of staff of the Senate was
convicted in August 2006 of having ordered the murders; prosecutors
charged that he was motivated by personal animosity.
Corruption
Although the Kazakhstani Criminal Code contains special penalties
for accepting and giving bribes, corruption is prevalent throughout
Kazakhstan. The Ministry of Interior, the Financial Police, the
Disciplinary State Service Commission, and the Committee for
National Security (KNB) are responsible for combating corruption.
The government has taken some measures to address corruption and
increased its attention to the problem through educational and
public awareness efforts. President Nazarbayev publicly deplored
corruption and encouraged media to report about it. Some lower and
middle-ranking officials and minor political figures have been
penalized on corruption charges.
Transparency International has a national chapter in Kazakhstan. The
government has signed on to the Extractive Industries Transparency
Initiative (EITI).
U.S. firms have cited corruption as a significant obstacle to
investment. Law enforcement agencies have on occasion pressured
foreign investors perceived to be uncooperative with the government.
The government and local business entities are widely aware of the
legal restrictions placed on U.S. business abroad (i.e., the Foreign
Corrupt Practices Act).
In 2003 in the United States two American citizens were charged with
violating the Foreign Corrupt Practices Act in a case that received
significant international media attention. The two allegedly
channeled tens of millions of dollars in bribes to two senior
Kazakhstani officials during the 1990's in order to facilitate oil
deals for American companies. One is currently serving a jail term.
The criminal case against the second defendant is ongoing.
Bilateral Investment Agreements
The United States-Kazakhstan Bilateral Investment Treaty came into
force in 1994. In 1992, the United States and Kazakhstan signed an
Investment Incentive Agreement.
In 1996, the Treaty on the Avoidance of Double Taxation between the
United States and Kazakhstan came into force. However, an ongoing
dispute with a U.S. investor raises concerns with the government's
tax treaty compliance. Since independence, Kazakhstan has ratified
treaties on the avoidance of double taxation with thirty-nine
countries. In 2008, Kazakhstan signed, but has not yet ratified
treaties with five countries, including Malaysia, Armenia,
Luxembourg, Arab Emirates, and Japan. Kazakhstan has bilateral
investment agreements in force with thirty-eight countries,
including the United States, Great Britain, Germany, France,
Austria, Russia, Korea, Iran, China, and Turkey. In 2009, the
Kazakhstani Parliament is expected to ratify investment agreements
with Qatar, the Eurasian Economic Community, Armenia, and the Slovak
Republic.
OPIC and Other Investment Insurance Programs
The Overseas Private Investment Corporation (OPIC), an independent
U.S. Government agency that provides project financing, political
risk insurance, and a variety of investor services, has been active
in Kazakhstan since 1994. OPIC is seeking commercially viable
projects in the Kazakhstani private sector. OPIC offers a full range
of investment insurance and debt/equity stakes.
Kazakhstan is a member of the Multilateral Investment Guarantee
Agency (MIGA).
Labor
The 1999 Labor Law and the Constitution guarantee basic workers'
rights, including the right to organize and the right to strike.
Teachers, miners and workers at a variety of enterprises have
conducted occasional strikes for generally short periods during the
past several years. In September 2006 the death of 41 miners in an
explosion at Mittal Steel Termirtau's "Lenin" coal mine triggered an
unprecedented wave of strikes. Mittal's striking coal miners were
joined by steel workers which shut down operations at each of the
eight coal mines owned by the company for a week. The strike ended
after Mittal agreed to substantial raises. Subsequently, two U.S.
companies operating coal mines in Kazakhstan raised wages 25-30% in
order to avert threatened strikes.
The 1996 Law on Labor Disputes and Strikes lays out the procedure
for resolving disputes. However, the law also restricts strikes by
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requiring, inter alia, that a peaceful attempt at a solution first
be made, that two-thirds of the labor collective must approve the
strike, and that the employer must be warned 15 days in advance in
writing. In addition, strikes for political purposes are forbidden.
A separate 1992 Law on Collective Bargaining Agreements sets out the
basic framework for concluding such agreements. There are a growing
number of instances in which unions have successfully negotiating
collective bargaining agreements with management. Following a
widely publicized mining tragedy and subsequent strike in January
2008, the government launched a pro-union campaign called "Sign a
Collective Bargain" intended to empower workers to more effectively
protect their rights as members of the workforce. This marked a
significant change in policy in which independent unions and
collective bargaining groups are "no longer seen as the enemy"
according to a prominent independent labor union organizer.
In May 2007, Kazakhstan passed a new Labor Code, encompassing all
the preceding legislation under a single umbrella. Key provisions
of all the previous labor laws were retained. The Labor Code
extended minimum mandatory vacation time from 18 to 24 days,
provided an outline of labor unions' and labor representatives'
rights, and toughened rules governing the dissolution of labor
contracts.
The 1993 Law on Professional Labor Unions provides a legal guarantee
against limitations of labor. It also grants socio-economic,
political and personal rights and freedoms as a result of membership
in a union and prohibits the denial of employment, the denial of
promotion or termination of employment on the basis of such
membership. Kazakhstan also joined the International Labor
Organization (ILO) in 1993. As of January 2007, Kazakhstan has
ratified 17 ILO conventions including those pertaining to minimum
employment age, forced labor, discrimination in employment, equal
remuneration, and collective bargaining, and the worse forms of
child labor.
In 2008, the minimum subsistence wage is still only $102.8 per
month, with 13.5% of the population receiving income below that
level. Starting January 1, 2009, the minimum pension will be $82.10
per month. By government estimates, in the 3rd quarter of 2008,
unemployment was 6.4%.
Kazakhstan has an educated and technically competent workforce.
However, the demand for specialized skilled labor created by the
simultaneous development of several major oil fields in western
Kazakhstan has exceeded locally available supply. Foreign investors
increasingly cite a lack of skilled workers and technical
professionals. Management expertise and marketing skills are also in
short supply. Many large investors rely on foreign workers,
particularly from Turkey, to fill the vacuum. In turn, the GOK has
made it a priority to ensure that Kazakhstani citizens are
well-represented on foreign enterprise workforces, and is
particularly keen to see Kazakhstanis hired into the managerial and
executive ranks of those enterprises. In late 2006, the government
discussed measures limiting the inflow of foreign workers,
particularly unskilled, and pressuring large foreign investors to
hire and train Kazakhstanis. Since 2001, the quota system has
required employers to search for local workers prior to the issuance
of work permits for foreigners (see section A.1.). U.S. companies
are strongly advised to contact locally-based law and accounting
firms, as well as the U.S. Commercial Service in Almaty, for the
latest information on work permits.
Employers' reliance on foreign labor in the face of persistent
poverty in rural Kazakhstan became a political issue in 2006 and
¶2007. The debate revolved around the underlying causes of some
violent incidents between Kazakhstani and foreign workers. The
tension was epitomized by a major October 2006 brawl that involved
over 400 workers. Policymakers often point to disparities in wages
and working conditions between Kazakhstani and foreign workers.
Employers retort that the domestic lack of skilled labor frequently
necessitates management of Kazakhstani laborers by foreigners.
Foreign - Trade Zones/Free Ports
A system of tax preferences exists for enterprises engaging in
prescribed economic activities in the so-called "special economic
zones." As of December 2007, four such zones had been established:
the "New Administrative Center" in Astana, the Seaport of Aktau, the
Alatau Information Technology Park (near Almaty), and the Ontustik
ASTANA 00000112 016.2 OF 019
Cotton Center in south Kazakhstan.. In the second half of 2006, the
government took steps toward establishing the Almaty Financial
Center, a legal and institutional framework aimed at making Almaty
the financial capital of Central Asia. The plans, which are still in
very early stages of implementation, include tax privileges for
major participants in the financial marketplace: investors,
broker-dealers, and issuing corporations. The legal framework for
the Almaty Financial Center includes a specialized court with
jurisdiction over civil disputes between the Financial Center's
participants
Annual Gross Foreign Direct Investment Flows by Country of Origin
(Millions of Dollars; nominal)
1993-2006 2007 2008 (1st half) Total
USA 13,550.1 2,454.9 819.6 16,824.1
Netherlands 7,826.1 3,148.7 1,628.1 12,602.9
UK 5,240.6 733.0 499.8 6,473.4
Italy 2,844.6 517.2 267.1 3,628.9
France 2,352.3 1,022.6 507.5 3,882.4
Switzerland 2,256.1 633.2 115.2 3,004.5
South Korea 2,129.7 232.3 119.6 2,481.6
China 2,043.4 358.2 354.2 2,755.8
Canada 1,919.7 314.1 70.0 2,303.8
Russia 1,713.8 772.0 375.3 2,861.1
Japan 1,347.7 405.3 201.3 1,954.3
Turkey 1,005.4 337.1 85.0 1,427.5
Others 7,179.6 6,586.3 2,119.8 15,886.2
TOTAL 51 409.1 17,514.9 7,162.5 76,086.5
Source: National Bank of Kazakhstan
Annual Gross Foreign Direct Investment Flows by Sector (Millions of
dollars; nominal)
1993-2006 2007 2008 (1st half) Total
AGRICULTURE, 53.0 - 24.93 4.5 32.6
HUNTING AND
FORESTRY
MINING AND 24,682.3 4,656.9 1,644.0 30,983.2
QUARRYING
mining of coal 39.8 -0.7 31.0 70.1
and lignite,
extraction
of peat
extraction of 22,409.7 4,316.3 1,438.1 28,164.1
crude
petroleum
and natural
gas
mining of 308.9 148.9 90.0 547.8
uranium and
thorium ores
mining of 1864.6 188.0 49.3 2,101.9
metal ores
other mining
and quarrying 59.2 4.5 35.6 99.3
MANUFACTURING 5,708.8 893.5 428.1 7,030.4
including but
not limited
manufacture of
food products, 757.3 63.0 80.5 900.8
beverage and
tobacco products
manufacture of
coke, refined
petroleum
products 492.4 -189.9 33.7 336.2
and nuclear
fuel
manufacture of 153.5 11.9 9.5 174.9
chemicals
and chemical
products
manufacture of 39.6 25.4 9.5 74.5
rubber and
plastics
products
manufacture of 112.1 28.3 41.7 182.1
ASTANA 00000112 017.2 OF 019
other
non-metallic
mineral products
manufacture 3,495.0 671.1 68.9 4,235.0
of basic metals:
manufactures 407.1 23.3 5.9 436.3
of ferrous
metals
manufacture of 3,069.8 628.9 52.2 3,750.9
basic precious
and non-ferrous
metals
manufacture of 18.2 19.0 10.8 48
fabricated
metal products
except
machinery
and equipment
manufacture 25.6 0.2 0.9 26.7
of machinery
and equipment
manufacture 470.8 53.9 65.3 590
of electric
and computing
machinery
manufacture of 84.2 149.7 26.5 260.1
transport
equipment
manufacture, 5.7 4.6 3.3 13.6
n.e.c
ELECTRICITY, 725.9 36.6 46.5 809
GAS AND WATER
SUPPLY
CONSTRUCTION 783.9 483.2 226.4 1,493.5
WHOLESALE AND 1,862.1 1,238.3 437.7 3,538.1
RETAIL TRADE,
REPAIR OF
MOTOR VEHICLES,
MOTORCYCLES
AND PERSONAL AND
HOUSEHOLD GOODS
HOTELS AND 125.5 49.2 19.2 193.9
RESTAURANTS
TRANSPORT 690.6 301.3 48.5 1,040.4
AND
COMMUNICATION
land transport 402.4 39.7 9.6 451.7
including
transport
via pipelines 379.7 36.6 4.3 420.6
water -8.1 0.9 0.5 -6.7
transport
air transport 28.1 2.3 1.1 31.5
supporting 339 150.7 42.7 532.4
transport
activities
post and 229.8 -11.7 38.6 256.7
telecommunication
including 226.1 -14.5 38.1 249.7
telecommunication
FINANCIAL 946.9 2,938.3 798.6 4,683.8
ACTIVITY
REAL ESTATE , 14,774.3 6,963.8 3,375.6 25,113.7
RENTING
AND BUSINESS
ACTIVITIES
Including
but not limited
real estate
activities 134.2 65.4 22.7 222.3
legal,
accounting, book-
keeping and
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auditing 131.2 142.4 50.0 323.6
activities,
tax consultancy,
market research,
business and
management
consultancy
geological 14,153.4 6,631.3 3,245.0 24,029.7
exploration and
prospecting
activities
EDUCATION, 394.8 98.1 89.4 582.3
HEALTH AND
SOCIAL WORK
ACTIVITIES, 360.8 0.0 0.0 360.8
N.E.C.
TOTAL 51409.1 17,514.9 7,162.5 76,086.5
Source: National Bank of Kazakhstan
FDI as a Percentage of GDP
2006 2007 2008(1st half)
13.1% 16.7% 12.4%
Source: National Bank of Kazakhstan
Kazakhstani Direct Investment Outflows
Millions of US dollars, nominal
Country of
Destination 2004-2006 2007 2008(1st half) Total
Austria 0.7 8.8 0.1 9.6
Azerbaijan 3.2 3.5 0.0 6.7
Armenia 3.5 4.0 0.3 7.8
Afghanistan 0.0 0.0 0.0 0.0
Byelorussia 4.8 -0.1 1.5 6.2
Bulgaria 0.0 1.5 0.9 2.4
Belgium 0.0 0.1 0.0 0.1
Great Britain 11.8 162.2 24.5 198.5
Hungary 0.0 0.1 0.0 0.1
Virgin Islands 73.6 374.8 64.4 512.8
Germany 217.5 14 2.0 233.5
Guernsey 0.0 0.0 0.1 0.1
Hong Kong 0.0 60.0 0.0 60.0
Greece 0.0 0.1 0.0 0.1
Georgia 67.9 50.7 -29.9 88.7
Dominican Republic 10.0 -9.8 0.0 0.2
Egypt 0.0 0.0 0.0 0.0
Israel 0.4 1 0.3 11.1
India 0.1 7.2 0.0 7.3
Iran 0.0 1.6 1.3 2.9
Ireland 0.0 0.1 0.1 0.2
Spain 0.0 1.8 1.6 3.4
Italy 0.1 0.0 0.0 0.1
Canada 43.1 3.9 0.0 47
Cayman Islands 0.5 0.5 0.0 1.0
Cyprus 0.8 90.7 326.0 417.5
China 12.9 51 25.9 89.8
Kyrgyzstan 160.2 144.2 -10.6 293.8
Latvia 1.9 0.3 0.0 2.2
Libya 0.0 0.0 0.1 0.1
Lithuania -1.0 2.1 0.0 1.1
Liechtenstein 0.0 0.1 0.0 0.1
Luxemburg 9.5 1.8 0.0 7.7
Mauritius 0.0 0.1 0.1 0.2
Malaysia 0.8 1.4 0.3 2.5
Marshall Islands 0.0 96.0 0.0 96.0
Isle of Man 6.6 0.0 0.0 6.6
Mongolia 0.1 0.1 1.7 1.9
Netherlands 659.8 -274.3 556.2 941.7
Nigeria 0.0 0.2 0.0 0.2
United Arab Emirates 1.4 50.9 17.9 70.2
Poland 0.0 0.0 18.6 18.6
Russia 311.3 537.4 263.1 1111.8
Seychelles 28.3 0.0 0.0 28.3
Serbia 0.0 0.0 0.1 0.1
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Singapore 2.4 65.5 0.0 67.9
South Korea 0.0 1.4 0.0 1.4
USA 11.3 423.3 18.0 452.6
Tajikistan 12.4 20.9 1.6 34.9
Thailand 0 49.2 0.0 49.2
Turkmenistan 0.0 0.0 0.0 0.0
Turkey 50.0 328 5.5 383.5
Uganda 0.0 0.0 0.0 0.0
Uzbekistan 94 34.8 0.5 129.3
Ukraine 13.1 112.4 14.5 140
France 0.0 8.3 4.4 12.7
Czech Republic -3.8 8.2 0.0 4.4
Switzerland 204.2 282.6 169.8 656.6
Estonia 0.0 0.0 0.0 0.0
South Africa 0.0 0.0 0.1 0.1
Other Countries 11.0 4.6 4.1 19.7
TOTAL 2024.4 2733 1485.1 6242.5
Source: National Bank of Kazakhstan
Investments as of 2008
The oil and gas sector accounts for approximately 70% of the $76.1
billion that has been invested in Kazakhstan, with U.S. firms
consistently ranking as the largest foreign investors. U.S. firms
with noteworthy investment in Kazakhstan's petroleum sector include
Chevron, ExxonMobil, and ConocoPhillips. Other major foreign
investors in this sector include LukArco, Agip, Shell, Inpex, Eni,
Total, British Gas, Lukoil, Mitsubishi, and the Chinese National
Petroleum Corporation (CNPC). Other major US investors include
Philip Morris (over $320 million in tobacco processing), and General
Electric Transportation (locomotive modernization facility). Other
major non-US foreign investors include Arcelor Mittal and BAE
Systems.
END TEXT.
HOAGLAND