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Investing in kazakhstan

Plans on the further liberalization of a visa and migration regime, and the development of international air communication with international financial centers were suspended due to the COVID pandemic. Utilizing the advantages of the Astana International Financial Center may bring positive results in attracting foreign investments. For example, foreign investors often complain about problems finalizing contracts, delays, and burdensome practices in licensing.

The controversial taxation of dividends of non-residents that came into force in January , has additionally raised concerns of foreign investors. Outward Investment The government neither incentivizes nor restricts outward investment. Some foreign investors allege Kazakhstani tax authorities are reluctant to refer double taxation questions to the appropriate resolution bodies.

Among other tax issues that cause concern with U. Kazakhstan joined the WTO in November The EAEU is governed by the Eurasian Economic Commission, a supra-national body headquartered in Moscow, and is expected to integrate further the economies of its member states, and to provide for the free movement of services, capital, and labor within their common territory. Per its WTO commitments, Kazakhstan lowered 3, import tariff rates to an average of 6. As a part of this commitment, Kazakhstan applies a lower-than-EAEU tariff rate on food products, automobiles, airplanes, railway wagons, lumber, alcoholic beverages, pharmaceuticals, freezers, and jewelry.

After December , Kazakhstan will have a three-year implementation period prior to starting tariff adjustment negotiations with its EAEU partners. Legal Regime Transparency of the Regulatory System Kazakhstani law sets out basic principles for fostering competition on a non-discriminatory basis.

Kazakhstan is a unitary state, and national legislation enacted by the Parliament and President are equally effective for all regions of the country. Publicly listed companies indicate that they adhere to international financial reporting standards but accounting and valuation practices are not always consistent with international best practices. The government consults on some draft legislation with experts and the business community; draft bills are available for public comment at www.

Some bills are excluded from public comment, and the legal and regulatory process, including with respect to foreign investment, remains opaque. Implementation and interpretation of commercial legislation is reported to sometimes create confusion among foreign and domestic businesses alike.

In , the Ministry of Health and Social Development introduced new rules on attracting foreign labor, some of which including a Kazakh language requirement created significant barriers for foreign investors. The non-transparent application of laws remains a major obstacle to expanded trade and investment.

Foreign investors complain of inconsistent standards and corruption. Although the central government has enacted many progressive laws, local authorities may interpret rules in arbitrary ways with impunity. Penalties are often assessed for periods prior to the change in policy. One of the recent cases involves a U. Other examples from the past include foreign companies reporting that local and national authorities arbitrarily imposed high environmental fines, saying the fines were assessed to generate revenue for local and national authorities rather than for environmental protection.

Government officials have acknowledged the system of environmental fines required reform and developed the new Environmental Code Eco Code , compliant with OECD standards, in The new Eco Code signed into law in January will come into effect on July 1, The Eco Code mandates local authorities to have percent of environmental payments spent on environmental remediation.

Oil companies have complained that the emission payment rates for pollutants when emitted from gas flaring are at least twenty times higher than when the same pollutants are emitted from other stationary sources. The Parliament is currently reviewing the amendments to the Administrative Code to make gas flaring fines for oil companies equivalent to those imposed on non-oil companies.

The program calls for the formation of a results-oriented public administration system, a new system of audit and performance evaluation for government agencies, and introduction of an open government system with better public access to information held by state bodies. President Tokayev, who was elected in June , stated his adherence to reforms, initiated by former President Nazarbayev, and called the government to reset approaches to reforms, including robust implementation.

The New Economic Course, announced by President Tokayev in , included the streamlining of the taxation system to stimulate inflow of foreign investment and the decriminalization of tax errors. However, contingent liabilities, such as exposures to state-owned enterprises, their crossholdings, and exposures to banks, are not fully captured there. Kazakhstan became a member of the WTO in It notifies the WTO Committee on Technical Barriers to Trade about drafts of national technical regulations although lapses have been noted.

Early in , the government established an intra-agency Trade Facilitation Committee to implement its TFA commitments. Under the constitution, the judicial system is independent of the executive branch, although the government interferes in judiciary matters. Allegedly, pervasive corruption of the courts and the influence of the ruling elites results in low public expectations and trust in the justice system.

Judicial outcomes are perceived as subject to political influence and interference. Regulations or enforcement actions can be appealed and adjudicated in the national court system. Monetary judgments are assessed in the domestic currency. However, in actual fact the Government has refused to honor at least one fully litigated international arbitral decision.

Any court of original jurisdiction can consider disputes between private firms as well as bankruptcy cases. The Astana International Financial Center, which opened in July , includes its own arbitration center and court based on British Common Law and independent of the Kazakhstani judiciary. Provisions on using the AIFC law as applicable law are recommended for model investment contracts between a foreign investor and the government.

These laws provide for non-expropriation, currency convertibility, guarantees of legal stability, transparent government procurement, and incentives for priority sectors. However, inconsistent implementation of these laws and regulations at all levels of the government, combined with a tendency for courts to favor the government, have been reported to create significant obstacles to business in Kazakhstan.

The Code reinstates a single investment regime for domestic and foreign investors, and in principal codifies non-discrimination for foreign investors. The Code contains incentives and preferences for government-determined priority sectors, providing customs duty exemptions and in-kind grants detailed in section 4, Industrial Policies.

In , Kazakhstan enacted a new provision to the Entrepreneurial Code on investment agreement between strategic investors and the government. According to the law, the investment agreement is expected to provide investors with incentives, preliminarily negotiated with the government.

The government guarantees the stability of the legal regime for these investment agreements. The investment agreement is an addition to a system of investment contacts already established in Kazakhstan see Section 4 for details.

A law on Currency Regulation and Currency Control, which came into force July 1, , expands the statistical monitoring of transactions in foreign currency and facilitates the process of de-dollarization. In particular, the law treats branches of foreign companies in Kazakhstan as residents and enables the National Bank of Kazakhstan NBK to enhance control over cross-border transactions.

The NBK approved a list of companies that keep their non-resident status; the majority of these companies are from extractive industries see also section 6, Financial Sector. The legal and regulatory framework offered by AIFC to businesses registering on that territory differs substantially from that of Kazakhstan. The AIFC activity has gained momentum since its establishment in Competition and Antitrust Laws The Entrepreneurial Code regulates competition-related issues such as cartel agreements and unfair competition.

In , in order to enhance an anti-monopoly policy, the President ordered the transfer of the functions on protection of competition to a newly created Agency for Protection and Development of Competition that operates under his direct supervision. The Agency is responsible for reviewing transactions in terms of competition-related concerns. Regulation of natural monopolies remained with the Ministry of National Economy. In order to be responsive to public opinion, the Agency for Protection and Development of Competition has established various consultative bodies, including the Open Space, the Council on Identifying and Removal of Barriers for Entering Markets, the Public Council, and the Exchange Committee.

Foreign companies may participate in the Council on Identifying and Removal of barriers for Entering Markets. Expropriation and Compensation The bilateral investment treaty between the United States and Kazakhstan requires the government to provide compensation in the event of expropriation. The Entrepreneurial Code allows the state to nationalize or requisition property in emergency cases but fails to provide clear criteria for expropriation or to require prompt and adequate compensation at fair market value.

The Mission is aware of cases where owners of flourishing and developed businesses have been forced to sell their businesses to companies affiliated with high-ranking and powerful individuals. However, the government does not always honor such awards. Investor-State Dispute Settlement The government is a signatory to bilateral investment agreements with 47 countries, the Energy Charter Treaty, and one multilateral investment agreement with EAEU partners.

These agreements recognize international arbitration of investment disputes. Kazakhstan is legally obligated to recognize arbitral awards, yet does not always honor this fact. A number of investment disputes involving foreign companies have arisen in the past several years linked to alleged violations of environmental regulations, tax laws, transfer pricing laws, and investment clauses.

Some disputes relate to alleged illegal extensions of exploration schedules by subsurface users, as production-sharing agreements with the government usually make costs incurred during this period fully reimbursable. Some disputes involve hundreds of millions of dollars. Problems arise in the enforcement of judgments, and ample opportunity exists for influencing judicial outcomes given the relative lack of judicial independence.

To encourage foreign investment, the government has developed dispute resolution mechanisms aimed at enabling aggrieved investors to seek redress without requiring them to litigate their claims. However, investors who have entered such settlement discussions in good faith report that the government pursued criminal litigation just as the parties were closing in on a deal after the investors had devoted significant time and resources toward achieving a settlement.

Investment disputes between the government and investors fall to the Nur-Sultan City Court; disputes between the government and large investor are in the exclusive competence of a special investment panel at the Supreme Court of Kazakhstan. Amendments to legislation on the court system the Parliament adopted in March will change this system once implemented.

Starting from July 1, , the Special Economic Court and the Special Administrative Court of Nur-Sultan City will be the courts of first instance for investment disputes between the government and investors. International Commercial Arbitration and Foreign Courts The Law on Mediation offers alternative non-litigated dispute resolutions for two private parties.

The Law on Arbitration defines rules and principles of domestic arbitration. As of April , Kazakhstan had 18 local arbitration bodies unified under the Arbitration Chamber of Kazakhstan. Local courts recognize and enforce court rulings of CIS countries. Judgement of other foreign state courts are recognized and enforceable by local courts when Kazakhstan has a bilateral agreement on mutual judicial assistance with the respective country or applies a principle of reciprocity.

By law, investment disputes with private commercial entities, employees, or SOEs are in the jurisdiction of local courts. President Tokayev has recognized that that the judicial system lacks specialists in taxation, subsoil use, intellectual property rights and corporate law. Even when investment disputes are resolved in accordance with contractual conditions, the resolution process can be slow and require considerable time and resources.

Many investors therefore elect to handle investment disputes privately, in an extrajudicial way. Bankruptcy is not criminalized, unless the court determines the bankruptcy was premeditated, or rehabilitation measures are wrongful. The Bankruptcy Law improves the insolvency process by permitting accelerated business reorganization proceedings, extending the period for rehabilitation or reorganization, and expanding the powers of and making more stringent the qualification requirements to become insolvency administrators.

The law also eases bureaucratic requirements for bankruptcy filings, gives creditors a greater say in continuing operations, introduces a time limit for adopting rehabilitation or reorganization plans, and adds court supervision requirements.

Amendments to the law accepted in introduced a number of changes. Among them are a more specified definition of premeditated bankruptcy; a requirement to prove a sustained insolvency when filing a claim on bankruptcy; a possibility for the bank-agent to file a request for bankruptcy on behalf of a syndicate of creditors; a possibility for individual entrepreneurs to apply for a rehabilitation procedure to reinstate its solvency, and an option to be liquidated without filing bankruptcy in the absence of income, property, and business operations.

The Entrepreneurial Code and Tax Code provide incentives for foreign and domestic investment in priority sectors, which include agriculture, metallurgy, extraction of metallic ore, chemical and petrochemical industries, textile and pharmaceutical industries, food production, machine manufacturing, waste recycling, and renewable energy. The approach helps the government to take decisions on projects on a case-by-case basis. After signing investment contracts with the government, firms in priority sectors receive tax and customs duty waivers, in-kind grants, investment credits, and simplified procedures for work permits.

The duration and scope of preferences depends on the priority sector, the size of investment and type of the investment project. The government has outlined different categories of investment projects. Each category corresponds with a particular type of contract between an investor and the government, and a particular set of incentives.

For example, model investment contracts are prepared and signed for investment priority projects by the Investment Committee at the Ministry of Foreign Affairs and KazakhInvest. Special investment projects and projects on industrial assembly of vehicles and agricultural equipment are in the competence of the Ministry of Industry and Infrastructural Development.

Volume of preferences in such agreements depends on the level of localization. In , the government modified this system slightly. The government introduced model contract clauses on guaranteeing the stability of laws and lowered the threshold for the cost of projects in textile and light industries to USD 7 million in order to make them eligible for preferences.

In addition, investors received the right to adjust model contracts twice a year with the consent of the government. In January , the government introduced to the Entrepreneurial Code one more type of contract— an investment agreement. Such agreements will be applied to investment projects exceeding USD 50 million in industries selected by the government. Under this agreement, the government provides an investor with an individual scope of incentives and a stability of legal regime for 25 years.

In turn, the investor undertakes commitments on project implementation. Some obligations on supporting a certain level of localization may be a part of the agreement. Unlike model contracts, investment agreements are subject to negotiations between an investor and the government. The Prime Minister enacted this agreement by issuing a special decree. Per the agreement, the government will establish a special economic zone at the location of the project with all implied tax and customs preferences.

Prior to the pandemic the government substantially liberalized the visa regime for foreign investors, especially for non-extractive industries. Residents of these countries could stay in Kazakhstan without visas for up to 30 days. Through December 31, , any visit of a foreigner, with some exceptions, must be approved by a special intra-agency government commission.

In , the government also introduced a more liberal regime for violation of visa rules of stay. Foreign visitors are permitted to pay administrative fines only in the case of infringing rules for the first and the second time. As of the beginning of , twelve managing companies control the SEZ activity. The Ministry of Industry and Infrastructural Development is in charge of monitoring SEZ activity and developing new policies and rules in this area. In , Kazakhstan adopted legislative amendments to alter existing local content requirements to meet WTO accession requirements.

Pursuant to these amendments, subsoil use contracts concluded after January 1, , no longer contain local content requirements, and any local content requirements in contracts signed before phased out on January 1, Despite these commitments, the government, particularly at the regional level, continues to advocate for international businesses to increase their use of local content.

In October , Tengizchevroil, North Caspian Operating Company, and Karachaganak Operating Consortium, which have stabilized contracts, committed to maintaining local content requirements after January 1, The government has been signing voluntary agreements with other oil companies to support local businesses. In November , the government announced the establishment of a fund for the development of local content.

The new fund will invest in technology, IT, assembly of oil and gas equipment, and environmental projects.. Although these recommendations are not legally binding, companies have generally elected to abide by them. The government regulates foreign labor at the macro and micro levels. Foreign workers must obtain work permits. Amendments to the Expatriate Workforce Quota and Work Permit Rules: a eliminate special conditions for obtaining a work permit for foreign labor e.

Kazakhstan offered a few extensions on work permits and visas due to pandemic- related restrictions on movement. The latest resolution allows foreign citizens with work permits or certificates of self-employment to stay in the country until June 5, Following the June brawl at Chevron-operated Tengiz oilfield that reportedly resulted from discontent with wage discrepancies between local and foreign workers with similar qualifications, the Ministry of Labor and Social Protection has sought to revisit the definition of administrative liability and administrative violation to make state control over employers with foreign workers more effective.

The government approved a foreign labor quota for at 0. The largest decreases were in administrative; real estate; wholesale and retail; construction; professional scientific and technological activities; and accommodation and catering. To replace the gap in the foreign workforce, the government introduced an obligation to replace foreign workers with skilled Kazakhstani labor. The foreign workforce annual quota for is 0. In , Kazakhstan introduced a so-called scoring system of localization assessment.

This system is aimed at stimulating local assembly of vehicles and agricultural equipment. The volume of incentives in agreements on industrial assembly will depend on the number of scores received for localization. The more scores the enterprise obtains, the more preferences the government extends to this enterprise.

Foreign investors may, in theory, participate in government and quasi-government procurement tenders, however, they should have established production facilities in Kazakhstan and should go through a process of being recognized as a pre-qualified bidder. In , the government enacted new procurement rules, according to which, only pre-qualified suppliers will be allowed to bid for government contracts.

A key requirement for being recognized as a pre-qualified bidder is that your product should be made in Kazakhstan and be added to a register of trusted products. While this requirement is applied to some selected sectors of government procurement e. The pandemic has amplified the import substitution trend. In the course of and President Tokayev several times highlighted the importance of support to local producers and the increase of local content share at procurement processes and implementation of infrastructural projects.

The National Chamber of Entrepreneurs Atameken introduced in an industrial certificate that serves as an extra and costly tool to prove the financial and production abilities of the company to participate in tenders. The industrial certificate is also an indirect confirmation of status as a local producer. Thus, a foreign investor who plans to bid for government and quasi-government contracts can benefit from such an industrial certificate. In , the government introduced significant recycling fees on imported combines and tractors.

Although major popular Western brands initially received waivers on recycling fees, the government revisited the exception and imposed recycling fees in The government suggested foreign producers start local production and hence, become eligible for preferential treatment. Foreign companies consider this measure to be a case of coercion to localize production. Otherwise, the data transmission should be regulated by respective bilateral agreements or allowed by the data subject.

Kazakhstan reserves its right to restrict or to ban data transmission by enacting separate regulation. Protection of Property Rights Real Property With certain sectoral exceptions, private entities, both foreign and domestic, have the right to establish and own business enterprises, buy and sell business interests, and engage in all forms of commercial activity. Secured interests in property fixed and non-fixed are recognized under the Civil Code and the Land Code. All property and lease rights for real estate must be registered with the Ministry of Justice through its local service centers.

The Land Code: a allows citizens and Kazakhstani companies to own agricultural and urban land, including commercial and non-commercial buildings, complexes, and dwellings; b permits foreigners to own land to build industrial and non-industrial facilities, including dwellings, with the exception of agricultural lands and land located in border zones; c authorizes the government to monitor proper use of leased agricultural lands, the results of which may affect the status of land-lease contracts; d forbids private ownership of: land used for national defense and national security purposes, specially protected nature reserves, forests, reservoirs, glaciers, swamps, designated public areas within urban or rural settlements, except land plots occupied by private building and premises, main railways and public roads, land reserved for future national parks, subsoil use and power facilities, and social infrastructure.

The government maintains the land inventory and constantly updates its electronic data base, though the inventory data is not exhaustive. The government has also set up rules for withdrawing land plots that have been improperly or never used. In , the government proposed Land Code amendments that would allow foreigners to rent agricultural lands for up to 25 years. Mass protests in the spring of led the government to introduce a moratorium on these provisions until December 31, The moratorium is also effective on other related articles of the Land Code that regulate private ownership rights on agricultural lands.

In March , President Tokayev initiated changes in the legislation to ban both the sale and lease of agricultural lands to foreigners. On March 17, the Mazhilis, the lower Chamber of the Parliament, started to consider the amended legislation, according to which, foreigners, persons without citizenship, foreign legal entities and legal entities with foreign participation, international organizations, scientific centers with foreign participation, and repatriated Kazakhs cannot own and take in temporary use agricultural lands.

It has attracted significant foreign investment to develop its abundant mineral, petroleum, and natural gas resources. Publicly available information indicates that U. President Tokayev has since assured foreign investors that the GOK will ensure a stable investment climate and meet its commitments to investors. He also pledged to reduce the outsized role of monopolies and oligopolies in the economy. Some investors will likely be deterred from investing in Kazakhstan, while others may find Kazakhstan an attractive alternative to doing business in Russia.

The GOK has expressed a commitment to complying with the western sanctions against Russia and has invited western investors to relocate from Russia to Kazakhstan. Despite institutional and legal reforms, corruption, excessive bureaucracy, arbitrary law enforcement, and limited access to a skilled workforce in certain regions continue to present challenges.

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Extractive industries, particularly hydrocarbons and mining, have been the engines of this growth. However, geographic limitations and decaying infrastructure present serious obstacles. Landlocked, with restricted access to the high seas, Kazakhstan relies on its neighbors to export its products, especially oil and gas. Although its Caspian Sea ports and rail lines carrying oil have been upgraded, civil aviation has been neglected.

Telecoms are improving, but require considerable investment, as does the information technology base. Supply and distribution of electricity can be erratic. Creating a truly diversified and technological economy and sustainable economic development are long-standing priorities. The county has made substantial progress in improving good governance, reforming the civil service and introducing e-governance.

It has been increasing competition, supporting small and medium-sized businesses, encouraging research and development, foreign direct investment. Strenuous efforts have been made to reinforce the rule of law, reform judiciary and law-enforcement agencies. Free trade practices and more prudent monetary and budgetary policies have been pursued. Economic progress has become increasingly inclusive, bringing benefits to a wide spectrum of the population.

Today Kazakhstan is an upper-middle-income country with a conducive business environment. There is an enormous untapped potential in many sectors including ferrous and non-ferrous metallurgy, petrochemicals, machine building, production of construction materials, pharmaceuticals, medical equipment, IT, data storage and processing and others. There are more opportunities in creating large ecosystems in the production and processing of meat, fruits, vegetables, cereals, oilseeds and dairy products.

Fish industry is very promising. Kazakhstan has been continuously improving existing legal framework and practices. Many business and investment regulations have been streamlined to ensure fast and easy registration of small, medium and large businesses and simple post incorporation compliance. For instance, during the incorporation via e-platform, it is also possible to apply for a VAT registration, open a bank account and register for the obligatory life and health insurance for employees.

Property transfer process was simplified, the clearance of the plans for engineering networks was eliminated. The tax code was amended to simplify the fulfilment of tax obligations and minimise the number of taxes and payments. Robust measures have been taken to digitalise the economy and public services particularly recently against the backdrop of the COVID pandemic.

Essential public services are offered online by the Government for Citizens, a noncommercial joint stock company that operates as a one-stop shop. Mega data centers are under construction in big cities. The main goal of a special national program Digital Kazakhstan is the improvement of the competitiveness of the Kazakhstan's economy and the quality of life through digital ecosystems.

The country is located along transcontinental routes between Europe and Asia. Thus, Kazakhstan offers land transport that is much faster than international sea shipment and cheaper than air freight. The country has been heavily investing in transport infrastructure development. Kazakhstan established a dry port and a free economic zone on the border with China that provide easier access to China's market.

The zone has many other facilities including storage, production, textile manufacturing, chemical and metal treatment. Kazakhstan provides lucrative tax preferences under investment projects, including exemption from corporate income tax, land tax, property tax. Companies introducing environmental technologies will be exempted from emission charges.

Furthermore, there are other incentives in special economic and industrial zones.

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