P rocedia - Social and Behavioral Sciences 143 ( 2014 ) 1001 – 1005
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1002A bdimanap Bekturganov et al. / P rocedia - Social and Behavioral Sciences 143 ( 2014 )1001 – 1005 contract in the construction industry. So, for example, Ms Vosnesenskaya also notes a number of specific features of this type of agreement [1].
1) The subject of this agreement is a sovereign state and private foreign person ;
2) The object of the agreement is the property relation within the one national territory, and these relationships
are built on the basis of a kind of equivalence, and not on the basis of power and subordination;
3) The agreement is governed by the national law of the State of the recipient, but with a caveat to grant private
investors the so-called long-term permanent legal status, which means that the non-use to it new, issued after the agreement of the laws, if their conditions are disadvantageous to the investor ;
4) The agreement is based on a special government approval, request specific investor specific legal regime, and
the basic conditions, which are usually contained in the investment legislation.
These authors examine the actual investment relations - relationship between the main participants of the investment activities as a single investment agreement, the parties that are an investor, customer, user object, the main performer works. This agreement regulates the process of implementation of the investment project. At the same time, the authors point out that in the process of implementation of the investment project may not be a single investment contract.
Thus, it should be noted that the investment contract has a plurality of species. This is due to the fact that investing can be implemented in any of the objects of civil rights, and the important thing is that they are used in the production of a broad sense, and do not lose their value in the current final consumption.
According to the position of V. Popondopulo, "investment contracts» –is a collective term. Investment activity may be mediated by various civil contracts: purchase, lease, contract, a partnership, etc. Under the investment agreement called the author means "agreement, which defines the terms of the relationship of the investor and the other participants of the investment process over the size of invested funds of the order of investment, interaction between the participants of the investment process in the implementation of the investment project, the order of use of the object of investment property relations to the created object, the distribution of income from the operation of the facility, et
c. In turn, the action for the implementation of the investment agreement mediated by other treaties: the transfer of the property to perform work, to provide services, licensing, etc [2].
The above proves that drawing several agreements, which will be an investment agreement, at the same time, pursuant to an investment agreement may be entered into a number of other contracts may conclude the investment agreement. Pending determination of the investment agreement and suggest that the investment agreement as a whole governs the investment activities of the investment project.
2.The legal regulation of the investment agreement in the subsoil in the Republic of Kazakhstan
Nowadays, the investment contract is a special type of contract that is not covered by civil law as a separate contract, but concluded in accordance with the general provisions and requirements of the contract provided for under Chapters 23 and 24 of the Civil Code of the Republic of Kazakhstan. It should be noted that the investment agreement defines the relationship of the owners or holders of title of funds invested in the business objects and their interaction in the process of implementation of the investment project, the use of it or the operation of the facility in the distribution of income from the activity or operation of the facility, and establishes the right of ownership of the object. Essence of
all activities organizer investment limited implementation of the investment project and the subsequent transfer of the created object of investment. By signing the contract, the investor expects to receive income from the investment of funds; the source of income will be as entrepreneurial as well as any other income-generating activities [3].
The essential terms of the contract in accordance with paragraph 1 of 393 Article of the Civil Code of the Republic of Kazakhstan are the conditions: the subject of the contract, the terms of which are considered essential by law or required for contracts of this kind, as well as all of the conditions on which if any one of the parties to the agreement must be reached. In this case, the contract cannot be concluded without reaching an agreement on all essential terms.
The distinctive features of the investment agreement are as follows:
1) An investment project of organizer investment is the basis of conclusion of contract;
2) Long-term contracts;
3) Reciprocal agreement (provision of investment going on in exchange for the future of the investee);
4) Commercial interest parties to the contract (the investor is obliged to compensate the organizer of investing
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for his actions);
5) The consensual nature of the contract;
6) Investment Treaty is recognized as the causal contract because the reality of the investment agreement is contingent upon its purpose, which to be legitimate and achievable;
7) The intended use of the property transferred to the investor;
8) Informational nature of the relationship of the parties;
9) The ability of the investor to influence the production activities organizer investment;
10) The total share ownership of the property attached as an investment;
11) An investment agreement with organizational features.
An investment contract is a special type of contract is not provided for by rules of civil law, but with the development of investment and financing activities in the Republic of Kazakhstan and the significant risks of investors at the conclusion of investment agreements currently growing need for a clear legal regulation of this contract as a separate type of civil contract.
According to the legal nature of a mutual investment agreement contract is a civil law. F or this reason, the relationship between the parties to this agreement is based on the equality of the parties. According to the law established that the investment contract - it's an investment agreement, providing for investment preferences. Moroz S.P. supposes that the contract to be concluded with the Investments Committee, according to which the available investment preferences may not be recognized by the contract, as it contains only a few elements of the contract, and is essentially a unilateral decision of the competent public authority [4] . In fact, such a "contract" is a unilateral administrative act, which should be made by public body.
As a rule, the state is a party to an investment contract in the treaties in the sphere of subsoil use. In
accordance with article 111 of the Civil Code of the Republic of Kazakhstan, the Republic of Kazakhstan stands in relations regulated by civil law, on equal footing with other participants of the relationship.
The Law " On Subsoil and Subsoil Use" adopted on 24 of June in 2010 restricts the use of a single contract for the exploration and extraction of minerals, as well as the division existed subsoil use contracts for production sharing agreement, concession, service and other miscellaneous contracts. The law also contains rules governing local content in the procurement of goods and services. The law does not provide for the conclusion of contracts for joint exploration and production of minerals, as in combining in one operation contract for exploration and production at the time of conclusion of the contract cannot be objectively plan the next operation, the specific terms of their conduct and financial costs.
As a result, when placing subsoil to tender under the combined exploration and production is impossible to establish clear criteria for granting rights, and the Competition Commission to decide the winner, as a rule, based on unrealistic figures pledged in the bid, which subsequently establish a work program and Contract. However, for deposits of strategic importance or complex geological structure decision of the Government of the Republic of Kazakhstan for the conclusion of contracts fo
r the combined use of mineral resources. List of deposits of strategic importance is set in the Resolution of the Government of the Republic of Kazakhstan on October 4, 2011 № 1137 "On approval of the list of subsoil plots, fields of strategic importance».
Law «On Subsoil and Subsoil Use» does not provide for the division of subsoil use contracts for production sharing agreements (PSAs), concession, service and mixed agreements. In this case, in view of the changes made to the Tax Code of the Republic of Kazakhstan PSAs have been canceled in respect of any relationship for Subsoil Use , following the adoption of the Law " On Subsoil and Subsoil Use" June 24, 2010 . Regarding other types of agreements, the legislation does not establish any specific features of certain types of subsoil use contracts and the characteristics of their detention. After the abolition of the division of concession contracts, service and mixed introduced classification on the basis of operations, which is provided for carrying out the contract: the contract for production, exploration contract and the contract for the construction or operation of underground facilities not related to exploration and production.
The Law «On Subsoil and Subsoil Use» regulation of the specific features of the procedure of forced termination of subsoil use contracts. Early termination of the contract at the initiative of the competent authority in the following cases a double breach of contract if they are not eliminated after
receiving the notice from the subsoil of the competent authority; non-compliance with the priority right of the state mining companies; changes in the economic interests of the Republic of Kazakhstan, entailing a threat national security, subject to the agreement cannot be reached with a subsoil user.
In case of early termination of the contract by the competent authority provided that the national company may
1004A bdimanap Bekturganov et al. / P rocedia - Social and Behavioral Sciences 143 ( 2014 )1001 – 1005 decide to trust management contract territory, with the facilities and equipment to ensure the continuity of the process and industrial safety , should be transferred to the former subsoil temporary possession and use of the national company for the period before the transfer property of the new license holder .
psasHowever, taking into account the interests of the subsoil, provides an extrajudicial procedure renewal of the contract in cases where the decision to terminate the contract was based on inaccurate data , and the circumstances that caused breach of contractual terms , independent of the subsoil user.
One cannot but agree with the prof. M.K. Suleimenov that would not be called as a contract in its legal nature, it can and should be attributed to a specific type of contract [5]. Designation in the name
of a particular type of contract it means the application to it of a legal regime: the essential terms of the contract, the basic rights and obligations of the parties, etc. Establishing contracts for subsoil use clear and understandable legal regime simplifies the subsoil user access to foreign markets, in particular, the possibility of borrowing (providing funding) and investment.
In the civil law of the Republic of Kazakhstan there is such a subject as a national company. In this regard, it should be considered part of the subject in specific investment relationship.
In practice, Kazakhstan has, as a rule, in such investment contracts in the mineral resources of the State of acts is
a national company that is engaged not only in commercial activities, but also controls the execution of contracts in
the sphere of subsoil use. In the legal literature, it is believed that at this complex and confusing, the legal status of the activities of the national companies still do not have sufficient legal basis [6] . In accordance with paragraphs.
21) Section 1 of the Law of the Republic of Kazakhstan "On Subsoil and Subsoil Use" " National Company for
Mineral Resources " - a joint stock company incorporated under the decision of the Government of the Republic of Kazakhstan and local executive bodies of oblasts, cities of republican status, capital , majority- owned by the state or the national management holding company conducting activities in certain areas of subsoil under the conditions established by the legislation of the Republic of Kazakhstan . However, according to paragraph 2 of Article 1 of the Law of the Republic of Kazakhstan "On Subsoil and Subsoil Use" contracts, in which the national company is the subsoil, the financing of exploration made by its strategic partner, unless the contract on joint activity provides otherwise.
An analysis of the current legislation of the Republic of Kazakhstan national company allows us to conclude that the general provisions on this subject no, not at all clear how are relations between the national company with the State , a national company enters into investment relationship on their own behalf or on behalf of the State. MK Sulejmenov the nature of the national company believes that it is necessary to clearly establish and what rights and obligations acquired a national company, and which - directly to the State, and who is , in what manner and to what extent is responsible for the breach of those contracts [7] .
Effective legal classification of contracts, including their proper name, is of great practical importance,
since it determines the genus, species, and characteristics and distinguishes them from each other. Ideally, the designation of
a particular contract (for example, the concession agreement, production sharing agreements, etc.) should mean an
automatic setting for him of a legal regime, namely the essential terms of the contract , the basic rights and obligations of the parties , the tax regime, etc.
At the same time the civil principle of optionality can supplement the content of the contract of any the additional conditions to the extent in which it is allowed by mandatory applicable law. Establishing contracts for subsoil use clear and understandable legal regime simplifies resource user’s access to foreign markets, particularly the possibility of borrowing, funding and investment.
At first glance it would seem that in the event of difficulties in determining the legal status of the subsoil use contracts traditionally you can refer to international practice, as it is widely known that the production-sharing agreements and concessions has long been widely used in practice in different countries. However, the difficulty lies in the fact that even the most common contracts are often quite different content due to the peculiarities of the legal systems of different countries (for example, the p
resence or absence of private ownership of minerals) , their historical differences and national development , as well as the general state of their legal base.
3. Conclusion
The mineral resources sector in Kazakhstan is one of the priority sectors of the economy, ensuring the development of the Republic of Kazakhstan. Attracting foreign investment in the economy of the Republic of Kazakhstan, including in the oil and gas sector, made possible by the work of creating an attractive investment image of Kazakhstan, which primarily contributed to the creation of an appropriate legislative framework. The fact
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that in Kazakhstan, today, invested billions of dollars of foreign capital, most of which occur in the mineral resources sector, confirms the existence of the legal framework in Kazakhstan, which creates the necessary conditions to attract foreign investment and efficient use of mineral resources.
The presence of an appropriate legislative framework was one major cause of Kazakhstan's attractiveness to foreign investment. In the subsoil attracts special attention to changes in the legislation of the contract to carry out mining operations, which was due
to changes in the tax base and the provisions of the legislation on investment. The Republic of Kazakhstan had to cancel a number of agreements in the field of investments in the use of mineral resources, namely the production sharing agreement and the concession contracts for the purpose of improving the protection of national security and compliance requirements for local content, providing the national interests of the citizens and the country. Accordingly, today, before the Republic is the most important challenge of how to clearly define the concept of the principle of stability of the legislation, to outline its scope and not allow derogation from this principle in law and law enforcement. This, in turn, will increase the attractiveness of the legal climate for investors and, in general, improve the image of Kazakhstan for business partners. In view of the existing measures for regulating relations on investing in the mineral resources, further development of Kazakhstan's legislation concerning the regulation of investment should be in the following areas: the development of a single legal act regulating the access of investors
in strategic sectors of the economy, establishing clear criteria of "national security " precluding the po
ssibility of a broad interpretation of decision-making in relation to investors, the introduction of the system verify the absence of
a "threat to national security" in respect of investments, with special attention should be given to investments undertaken by foreign states , international organizations , as well as the introduction of transparent for investors' decision-making procedures. In addition, the review of investment contracts in the mineral resources, it can be concluded that at present the investment contract is a special type of contract that is not covered by civil law as a separate contract, but concluded in accordance with the general provisions and requirements of contract. Thus, the legislation of the Republic of Kazakhstan needs to change in terms of a clear definition of such an important thing as an "investment contract" as the country continues to attract investments and to a large part, it is in the sphere of subsoil use.
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Moroz S.P. (2006) Investment Law of the Republic of Kazakhstan. Kazakh State Law University Institute of Private Law. (p.431) Almaty. Suleimenov M.K. (2008) Thinking about the improvement of the legislation on subsoil and subsoil use. Do I need such a law? // Oil & Gas of Kazakhstan. №6.
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