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In January 2012, the new amendments and additions to Kazakhstani IP regulations (the “IP Changes Law”) came into force. The IP Changes Law is mainly designed to improve the regulation of:
- the priority of registration of geographical indications and trademarks;
- the responsibility for any unlawful use of copyright or/and related rights by way of organisation and creation of Internet-based resources for further access to exchanging, storing, and transferring any copies of works or related-rights objects in digital format;
- the provisions of Kazakhstani laws in line with international law.
Certain changes are aimed to eliminate internal contradictions, to provide legislative framework for patent attorneys' status and to shorten the timelines required for the review and processing of industrial design applications. The IP Changes Law has introduced major amendments to a number of laws, such as Criminal Code, Civil Code, Administrative Code, Law “On Protection of Selection Achievements”, Patent Law, Law “On Trademarks, Service Marks and Appellations of Origin” (the “Trademarks Law”), Law “On Legal Protection of Integrated Circuit Topographies”, Law “On Copyright and Related Rights” (the “Copyright and Related Rights Law”), and Law “On Mass Media”.
Full text of this Legal Alert is available for download. For further information, please contact Almat Umbetov or Gulnara Ilyassova at: +7 727 258 4890
Kazakhstan has signed and ratified, with effect from 1 January 2010, a package of treaties with Russia and Belarus relating to the Customs Union. As part of this package the members of the Customs Union adopted a Treaty concerning Common Measures of Non-Tariff Regulation, dated 25 January 2008, and a Treaty Concerning Licensing Rules in the area of Commodity Foreign Trade, dated 9 June 2009.
In implementation of such treaties the members of the Customs Union, represented by the Interstate Counsel of the Eurasian Economic Union, adopted Resolution No. 19, dated 27 November 2009, “On Common Non-Tariff Regulation of the Customs Union of the Republic of Belarus, Republic of Kazakhstan and the Russian Federation”, which sets out a single list of goods, the export and import of which are subject to prohibitions and restrictions, as well as approves various regulations regarding the application of the restrictions. Among such regulations are the Regulations on Import to and Export from the Territory of the Customs Union of Precious Metals and Raw Materials Containing Precious Metals (the “CU Regulations on Precious Metals”) which cover:
1. The State’s Priority Right to Purchase Gold Bullions
2. Customs Union Regulations on Precious Metals
3. New Regulation of Precious Metals in Kazakhstan
4. State Control over Import/Export to/from Kazakhstan Precious Metals and Raw Materials Containing Precious Metals
5. Proposed Amendments in State Regulation of Precious Metals and Raw Materials containing Precious Metals
6. Proposed VAT Amendments on Gold Sales
Full text of this Legal Alert is available for download. For further information, please contact Elena Lee or Yekaterina Kim at: +7 727 258 4890
In line with Michael Wilson & Partners’ practice of keeping you up to date with important legal developments that may influence your business, we would like to draw your attention to recent changes of Kazakhstani legislation as to Mortgage Lending and Protection of the Rights of Consumers of Financial Services and Investors
A new Law “On Introduction of Amendments to Certain Legislative Acts as to Mortgage Credit Lending and Protection of the Rights of Consumers of Financial Services and Investors” (the “Amendment Law”) No. 406-IV ÇÐÊ, dated 10 February 2011, was published in Kazakhstankaya Pravda newspaper on 15 February 2011. The Amendment Law is designed to strengthen the rights of consumers of financial services, give guarantees to citizens on mortgages and increase the responsibility of executives of joint-stock companies.
The Amendments Law introduces amendments to a number of laws, i.e. to the Civil Code, Administrative Code, Law “On Banks and Banking Activity” (the “Banking Law”), Law “On Joint Stock Companies” (the “JSC Law”), Law on Securities Market, Law on Mortgage, Law on Registration of Pledge over Movable Property, Law on Registration of Rights over Immovable Property and Transactions therewith, Law on Micro-Credit Organisations, Law on Credit Partnerships, Law on Credit Bureau and Formation of Credit Dossiers, Law on Procedure for the Review of Requests/Claims of Individuals and Legal Entities.
Substantial changes have been made to the Banking Law, in terms of protection of consumers of financial services, and to the JSC Law, in terms of investor protection. The list is available upon request.
The Amendment Law will come into force upon the expiry of ten (10) days from the date of its publication, i.e. on 25 February 2011. The Amendment Law expressly provides that certain provisions (i.e. those that introduce amendments to the Banking Law) apply to the loan agreements that have been concluded prior to the effective date of the amendments. The banks and other organisations performing certain banking activities should bring their activity in compliance with the Amendment Law within six (6) months from its effective date, i.e. by 25 August 2011.
If you would like any further information on the Amendment Law, please contact Elena Lee or Yekaterina Kim at: +7 727 258 4890
On 20 January 2011 amended Rules for the Provision of Subsoil Use Rights were published in a national newspaper, The Kazakhstanskaya Pravda N19-20 (26440-26441). The amendments were approved under Resolution No. 1456 of the Government of the Republic of Kazakhstan “On approving the Rules for the Provision of Subsoil Use Rights” of 30 December 2010
Now, pursuant to the Rules and the Subsoil Law, a new procedure for the provision of subsoil use right was incorporated into the way of holding of the relevant tender and direct negotiations. Thus, subsoil use rights can be also provided by virtue of a written consent or approval issued by the authorised agency or by entering into a Subsoil Use Agreement or Contract.
Subsoil use rights shall be deemed to be granted and arisen from the date on which the relevant agreement or contract entered into force and effect, unless otherwise contemplated in the Subsoil Law and the Rules. The above Resolution shall be introduced into effect upon the expiration of ten (10) calendar days from the date of its first official publication. For more information please contact Alida Tuyebekova.
On 9 March 2010 new anti-money laundering legislation came into effect in Kazakhstan. Decree of the Ministry of Finance of the Republic of Kazakhstan No. 56 dated 15 February 2010 "On approval of the list of documents required for proper checking of clients according to the types of financial monitoring entities" listed documents required for proper identification by financial monitoring entities. Financial monitoring entities/persons must request for originals or notarised copies of the documents, or copies of the documents which are apostilled or legalised in accordance with the procedure set out in the international treaties ratified by Kazakhstan; and the terms "resident" and "non-resident" used herein should be understood within the meaning of the Tax Code of Kazakhstan.
Any transaction in the amount of equal to, or exceeding, KZT2 mln (approx. US$13,613) with regard to crediting or transfer of money to a client’s account by an individual or a legal entity, which is registered/incorporated/residing/located in an offshore jurisdiction, or has an account with a bank registered in an offshore jurisdiction; or transfer of money by the client in favour of the above-mentioned persons/entities, either as a one-time transaction, or a transaction made within seven (7) consecutive calendar days, is subject to financial monitoring and reporting to the competent authority, i.e. the Committee on Financial Monitoring of the Ministry of Finance of Kazakhstan in accordance with the procedure set out by the Ministry of Finance of Kazakhstan (the “MF”).
A list of offshore jurisdictions, which was subject to adoption by the MF, was not publicly available. However, such a list was adopted by the MF and came into force on 26 March 2010. (Please note that such a list of offshore jurisdictions for the purpose of anti-money laundering legislation is the same as a list of offshore jurisdictions approved by the Financial Market Supervision Agency for the purpose of banking and financial regulation.). For further information and to obtain a list of offshore jurisdictions, adopted by the MF for the purpose of anti-money laundering legislation, as well as a list of documents required for proper identification by financial monitoring entities, please contact Elena Lee.
On 10 March 2010 the Government of the Republic of Kazakhstan adopted resolution No. 190 approving the standards of delivery of public services in relation to the registration of subsoil use contracts and in relation to the registration of subsoil use right pledge agreements (the “Service Delivery Standards”). Both Service Delivery Standards do not concern the subsoil use rights or contracts for exploration; production; and combined exploration and production of commonly occurring minerals such as sand, clay and gravel. The Service Delivery Standards intend to streamline and improve the quality of public services and to make the provision of public services more transparent.
The Services Delivery Standards define the registration authority, the documents that need to be submitted for registration, who can file the registration documents and timing of registration which in both cases should not exceed five business days. All services are provided personally, i.e. documents for registration should be submitted and collected in person. The registration services are free of charge in both cases. For additional information concerning registration procedure for subsoil use contracts and pledges over subsoil use rights, please contact Jypar Beishenalieva.
On 22 December 2009 the “Rules on Issuance of Visas” (the “Rules”) were jointly adopted by the Ministry of Internal Affaires (“MIA”) and the Ministry of Foreign Affaires (“MFA”) of Kazakhstan. Such Rules came into effect on 1 March 2010. The Rules have introduced two new types of visas in Kazakhstan: “missionary” and “exit”. The purpose of a missionary visa is to regulate temporary stay of foreigners who are engaged in religious educational activities in the territory of Kazakhstan. Such visas are issued for 1, 2, triple and multiple entries. The period of stay under a multiple entry missionary visa must not exceed 180 days. An exit visa is issued to foreigners who permanently reside in Kazakhstan and who decide to move permanently abroad, as well as to foreigners who have lost their passports or other resident documents granting them the right to cross the Kazakhstani border or who must leave the country pursuant to duly issued resolutions.
In general with the adoption of the Rules the visa regulations have been toughened on the one hand, but on the other hand have also been simplified. Thus one of the most significant changes introduced by the Rules is the prohibition on extending most categories of visas in the territory of Kazakhstan. Exceptions to this rule are student visas, visas for medical treatment, visas for permanent residents of Kazakhstan and work visas. Business visas can be extended domestically only if the traveler is in Kazakhstan at the invitation of the Government, a diplomatic mission or international organization in Kazakhstan. Moreover, according to the new Rules, private, tourist, missionary and transit visas may be extended only upon reasonable grounds, the applicants will need to set out why they wish to extend such, or in certain exceptional cases such as illnesses, force majeure or extraordinary circumstances the visa will be extended.
The Rules also provide for a simplified procedure for obtaining visas to citizens of the following 47 developed countries, who may obtain diplomatic, official, business, private or tourist visas without invitation. On top of that the Rules also simplify the procedure for issuing invitations to a foreign citizen by legal entities. The authority which is in charge of issuing the above-mentioned visas as well as other visas is the Bodies of the Migration Police. For further information and assistance please contact Jypar Beishenalieva .
On 14 December 2009 the Government of Kazakhstan adopted Resolution No. 2101 (the “Resolution”) which sets out the requirements applicable to the public service to be provided to foreign nationals in connection with granting a residence permit allowing him/her to work and reside in Kazakhstan without obtaining a visa. The agency which deals with residence permit applications is the Migration Police of the Ministry of Internal Affaires (“MIA”). A residence permit should be issued by the MIA within two (2) months following the submission of all documents required for the issuance of the permit. The state duty payable for the issuance of a residence permit amounts to 20% of the monthly assessment index (“MAI”), this is currently equivalent to 282.6 tenge or approx. US$1.9. The state duty is payable through a Kazakh resident bank to the order of the MIA.
A foreign national should submit all required documents as referred to above to the Migration Police of the MIA and the office should then complete the application form, which is forwarded to the relevant Committees of the MIA for review and a criminal record check. Once the residence permit is issued, an officer of the local Migration Police must inform the applicant by phone or personally that the permit has been issued.The refusal for a residence permit by the MIA may be appealed to the superior body of the Migration Police within three months after the date of such decision became known to the applicant. The appeal must be considered within 30 days after which there is no right to any further appeal.
Further information on applying for a residence permit may be obtained from the website of the Ministry of Internal Affairs. This legal alert summarises the general procedure, timing and fees for obtaining such residence permit. This is by no means an exhaustive review of the Resolution and is to be used as a reference only. For further information and assistance please contact Alida Tuyebekova.
By way of a brief update on the recent developments in Kazakhstan legislation, please note that on 13 August 2009 the Government in its Resolution No. 1213 “On Approval of Subsoil Blocks (Deposits) Having Strategic Importance” (hereinafter the “Resolution”) set a list of deposits that have strategic importance. The Resolution may affect some of the subsoil users in Kazakhstan as it brings some clarity to the issues arising out of the amendments introduced to the Subsoil Use Law on 24 October 2007 imposing additional requirements applicable to certain subsoil users.
In particular, for the purposes of restoration of economic interests of the Republic of Kazakhstan the Competent Body (currently the Ministry of Energy and Mineral Resources) has a right to demand introduction of amendments/additions to a subsoil use contract if the activity of subsoil user when conducting subsoil use operations in relation to the parts of subsoil blocks (deposits) that have strategic importance leads to considerable variation of the economic interests of the Republic of Kazakhstan, creating a threat to the national security. The Subsoil Use Law was also amended to introduce additional grounds for unilateral termination of subsoil use contract by the Competent Body. Such additional grounds include:
Key issues and targets of the recent Tax Code which will require certain actions to be taken by all companies, branches and representative offices registered in Kazakhstan are being reviewed troughout the fiscal year on a regular basis by the MWP Tax Group professionals and are available immediately upon your request.
The law “On introduction of changes and additions to certain legislative acts of the Republic of Kazakhstan on the issues of sustainability of the financial system” was adopted on 23 October 2008. Under the Amendment Law certain amendments have been made to a number of legislative acts with a view to strengthening state control over the activities of various financial institutions such as banks, pension funds, insurance companies, etc... The full version is available by request
The law of the Republic of Kazakhstan “On Taxes and Other Obligatory Payments to the Budget” has been amended by a number of laws in 2006 This legal alert provides an overview of the most significant changes to the Tax Code and the Code on Administrative Violations that entered into force on 1 January 2007 and contains comments and suggestions of KPMG announced at a legal seminar held on 31 January 2007.