Право/Гражданское право

Nurkanova A.S.,
undergraduate first year students majoring in "Jurisprudence"
University "Turan"

Contractual forms of foreign investment in the Republic of Kazakhstan

Keywords: investment, legal forms, contract, concession, conditions

A general and characteristic beginning for the law of the Republic of Kazakhstan in the field of regulation of foreign investment is that the mode of foreign investment - a regulation of business activities carried out under the conditions of a foreign state. This means that the legal status of the investor in a foreign country is always vulnerable, regardless of the specific socio-political situation and the stage of state development.

The vulnerability of the foreign investor, which operates in a foreign country, is due to its submission to jurisdiction of the receiving State location and investment. It is because of this vulnerability foreign investor investment legislation important task is to establish clear and transparent rules that would exclude the slightest possibility of the appearance of arbitrariness from authorities or to take measures that could discriminate. In other words, the law on investment in equal measure aimed at regulating the activities of foreign investors and the state, receiving foreign investment.

Legal regulation of foreign investments is based on a combination of national law and international legal elements [1, p.147].

The main document regulating the legal status of foreign investors and investments is a contract. Choice of partners, contracting, commitments and other terms of economic relations not contrary to the laws of the country is the exclusive competence of foreign investors and participants of investment activity [2, p.3].

Thus, we can conclude that one of the most common elements of national law is a contractual form of foreign investment.

In the field of natural resource extraction a model exactly contractual forms of investment projects are widely used.

The main feature of such agreements is to participate in the agreement of the State or an authorized state body with a private-investor. This implies unequal Legal characteristics and economic potential of the position of the parties in the contract.

This kind of government contracts are still called as concession agreements or agreements of concession in international practice. In theory, they are also called investment agreements, although the latter concept is much broader.
Under the investment agreement, most of all, understands the agreement between the subjects of investment activity on the implementation of a number of specific actions for the implementation of the investment project. In this case, the investment agreement has the following features: a prerequisite to sign the contract - the investment project, the long-term nature of the relationship of the parties, commercial interests, the intended use of the investor, and therefore the possibility of investor influence on industrial activity on the other hand, the written form of the contract, the total share ownership on nested property and investing activities [3, p. 18].

The system of agreements in the field of investment may include the following contracts: sale (in particular, real estate sales, sale of the business, the sale of securities), financial lease (leasing), construction contracts, the paid services, integrated business license, franchise, trust management of property, the partnership (including the Memorandum of Association).

Each of these types of contracts are governed by the relevant provisions of the Civil Code of the Republic of Kazakhstan.

At the same time, it should be noted that the granting of concessions while not widespread in the Republic of Kazakhstan.

The current legislation does not operate the term "investment contract" (or "Investment Agreement"), although some researchers insist on the need to include this kind of definition to the current investment legislation [4, p.31].
According to the preamble of the Law "On Investment", this normative legal act regulates the relations connected with direct investments in the Republic of Kazakhstan, defines the legal and economic framework for investment incentives, guarantees the protection of the rights of investors when investing in the Republic of Kazakhstan, define measures of state support of investments, the procedure for resolution disputes involving investors.

This legal relationship according to the Law is regulated by the "Constitution of the Republic of Kazakhstan .... and other normative legal acts of the Republic of Kazakhstan", (Art. 2 of the Law on "Investment").

Therefore, we can fully operate with the provisions contained in the Civil Code of the Republic of Kazakhstan.

Moreover, it can be assumed that this provision can serve to guide the legislative sending provisions of the Civil Code of the Republic of Kazakhstan at the conclusion of investment contracts.

In addition, we are considering law contains rules governing the employment relationship, complicated by a foreign element, that is, with the participation of foreign investors.

Meanwhile, the Law on "Investment" is not absolute, its rules apply with the exceptions established by special legislation that directly govern the formation of certain types of investment contracts.

The most common varieties of state agreements with foreign investors are concession contracts and production sharing agreements.
Considering the concession contract, it is important to note that the Law of the Republic of Kazakhstan on "Concessions" is an important step towards improving the investment climate in Kazakhstan. This law regulates the economic, organizational and legal conditions for the development of Kazakhstan economy concessions, and the activities of the concession enterprises in our country.
At the same time, in our opinion, it is necessary to adopt a new law on "Concessions", which will contribute to radically change the current situation and will attract a significant share of foreign investment, as well as to protect the interests of the state.

In our view, the bill of the new law on "Concessions" should contain the basic provisions governing the content and procedure for the conclusion of concession contracts, the terms of the resolution of disputes and the necessary guarantees to investors, economic activities and objects of state and municipal property in respect of which may be concluded concession contract, shall be determined in the special list of public bodies.

Also the bill shall contain the classification of concession contracts, for example: "The types of concession contracts are the property of the concession contract, production sharing agreement and service agreement (with the risk or no risk)."

In this case, the concession contract should be defined as an agreement to provide for a fee, and an urgent basis of an exclusive right to carry out activities and use of objects of the Republic of Kazakhstan, as well as ownership of the goods produced and the proceeds under the terms of the contract.

In addition, the legal act shall define the phenomenon of "production sharing agreement", as follows: the contract for the provision for value and urgent basis of an exclusive right to carry out activities for profit and products, which must be divided among parties on the terms specified in the agreement.
The bill must provide not only the guarantees to investors, but the assurance and order of tenders and auctions to enter into concession agreements.
It seems reasonable to fixing the bill list of essential conditions of the concession contracts, which would be as follows: the subject of the contract; ownership of the fruits, products, revenues from the use of the exclusive right; price of the contract (i.e., the size of payments, terms and order of their introduction); term of the contract; order terms, the size of funding for the agreement (programs, schedules, projects).

The absence of these conditions (at least one) will indicate the incompleteness of the contract writing process.

Moreover, the new law on "Concessions" should contain general terms and conditions and operation of the concession contract, which would entail the adoption of special legal acts in certain sectors of the economy, and specify individual relationship.

Further, as for existing legal act, namely the Civil Code of the Republic of Kazakhstan, it contains the rules governing a common type of contract with foreign investors as the Treaty of complex business license or franchise.

That lease could be one of the promising areas for our country during the transition period.

Thus, according to the contract of complex entrepreneurial license, one party (complex licensor) grants the other party (the complex licensee) a set of exclusive rights (license complex) for a fee, including the right to use the licensor's brand name and proprietary information, as well as other exclusive rights (trademark, service marks, patents), the agreement is in the business activities of the licensee.
It is important to note that the rate is not in any degree imperative, that is, parties to the contract of complex entrepreneurial license may only commercial organizations and citizens who are registered as entrepreneurs, that is, regardless of nationality. In this case, the main condition acts state registration in the state bodies of the Republic of Kazakhstan as an entrepreneur.

At the same time, it is necessary to distinguish the contract of complex entrepreneurial license in civil law and the contract of complex entrepreneurial license as a form of investment. Since the use of the lease must be borne in mind that it gives only a temporary right to use the leased property to the lessee, but can be more expensive than a bank loan to buy the same equipment [5, p.25].

Thus, it follows that leasing as a form of investment activity does not have the positive benefits that have the concession agreement, therefore, the main contractual forms of foreign investment in the Republic of Kazakhstan, in our opinion is the concession contract.

List of references:

1. Anufrieva L.P. Private international law. In 3 v. V. 2: Special Part. - M .: BECK, 2000. - 656 p.

2. Kenenbayev T.S. Seminar on commercial law for judges of the Kyrgyz Republic. 14-25 October 1996. - Osh, 1996. - 98 p.

3. Shadrina T.V. Legal regulation of foreign investments in the Russian Federation. Abstract of the thesis. - M .: MSLA. - 1999. - 27 p.

4. Artykbaev O.M. Problems of attraction and use of foreign investment in the economy of the Kyrgyz Republic. - Bishkek: Publishing Center "IOC", 2003. - 153 p.

5. Ismailov Sh. Investment Management at the company. - Bishkek, 2002. - 128 p.