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Zh. S. Yelyubayev Ж.С.Елюбаев
Strict Construction of Statutory and Contractual Provisions
In our perspective, given the intensive lawmaking process in the Republic of Kazakhstan and establishing of law enforcement practice in the conditions of market economy and democratization of political institutes, the proposed subject for discussion is very essential. The extent of law enforcement, order and justice in the country depends on how the parties to legal relations understand statutory and contractual provisions. A proper construction[2] of statutory and contractual provisions is a key process in the sphere of subsoil use which helps maximally mitigate conflicts and negative consequences for the parties to legal relations in this important branch of economy.
General Approaches to the Construction of Statutory Provisions
Construction of law (English - «statutory construction») is the activity of a subject of law in establishing the content of statutory provisions during the lawmaking process, the exercise of the right or systematization of the legislation. Statutory construction can be carried out by the government authorities, organizations, official persons and citizens in different ways. The result of statutory construction shall be unambiguous and clear meaning of the statutory provision in question, its proper and uniform application, elimination of all obscurities and possible errors in its application.
A specific statutory construction is determined by its connection with the final result of explaining and understanding the meaning of statutory provisions, which is a condition precedent to the practical effect thereof. In theory and practice there are differentiated: literal (adequate), broad (extended) and restrictive statutory construction.
Literal construction is the most typical and common type of construction where the «spirit» and the «letter» of the law coincide, i.e. the wording of a statutory provision and its actual meaning are identical.
However, due to objective or subjective reasons the wording of the legislator’s intent and the actual meaning of this intent embedded in a statutory provision do not coincide; then broad or restrictive construction is applied.
In case of broad construction the actual meaning and content of the statutory provisions is broader than its wording. For example, a legislator stipulates an obligation of a subsoil user to «perform subsoil operations in accordance with the contract and legislation of the Republic of Kazakhstan»[3]. In this provision the real meaning of the word «legislation» is that it includes all regulatory legal acts, but not only the acts of the superior authorities that regulate the activity of a subsoil user.
Restrictive construction applies in the cases where the real meaning of a statutory provision is narrower than its wording. For example, the special law stipulates that «all concerned parties shall have the right to get familiar … with the conditions of holding a competitive tender for granting subsoil use title and the content of the decisions with its results».[4] However, not every person, physical or legal, can have such right, only «concerned», who can be other tender participants, representatives of competent and law-enforcement authorities, in some cases special public organizations (e.g. environmental). In such case the number of the persons subject to this provision becomes narrower.
In the cases of broad and restrictive construction there is established a real intent of the legislator, and therefore such construction does not introduce any changes to the real meaning of the statutory provision.
According to the subjects of statutory construction, it is divided into two types:
Ø Official construction, to be given by the competent government authorities, officials, organizations, included in a special act and binding on the subjects of law enforcement; and Ø Unofficial construction, to be given by subjects who are not authorized while performing their functions to construe laws, but who have profound special knowledge or perform their activities in a special sphere (academic and practicing lawyers, research organizations etc.), in the form of consultations, advice, recommendations and opinions.
Construction Methods and Types
Construction methods are special techniques, rules and means of understanding of the meaning of statutory provisions applied consciously or intuitively by the subject to get a clear picture of legal phenomena. Given the target, statutory construction methods can be divided into:
Ø linguistic - philological, grammatical consisting in determining the meaning of words and establishing lexical bonds between them; Ø historical consists in defining the meaning of a statutory provision by reference to the history of its adoption and the purpose and motives that determined its introduction into the system of legal regulation; Ø systematic consists in clarifying the meaning of a statutory provision by comparing it to other provisions, by identifying its bonds within the framework of legal regulation and its specific role in the regulatory act, branch or system of law.
In addition, the linguistic method relates to the textual analysis of a legal act, while all other methods relate to the understanding of its background. The issues of the existence of logical and teleological (target) construction of the law as separate construction methods remain disputable.
Construction Methods and Rules
Methods of construction of law are divided into general scientific methods of cognition (analysis[5] and synthesis[6], induction[7] and deduction[8], abstraction[9], analogy[10] etc.) and special scientific methods, i.e. legal methods per se (dogmatic analysis[11], legal comparative method[12], legislative history method etc.); and given the purpose of specific construction, methods of other sciences are also applied (sociology, linguistics, formal and modal logic, psychology, economics etc.).
The science of law and law enforcement practice elaborated a number of rules for construction of statutory provisions, the most important of which are the following:
Ø «golden rule», when the terms and other words contained in the text of a legislative act are ascribed the meaning they have in the respective literary language unless there reasons to ascribe a different meaning to them; Ø Scientific, technical and other special terms used in the text of a legislative act are ascribed the meaning which they have in a respective area of knowledge unless the law stipulates a different meaning of a specific term; Ø In case of absence of authentic (ascribed by the legislator) or legal (i.e. ascribed by the competent authority) explanation of a term used in the text of a law, the interpreter shall follow this explanation; Ø If a provision is unclear or ambiguous, when constructing the content of the text, preference is to be given to the most just, from the perspective of the specific legal system and social relations; Ø In the construction there should be taken into account similar constitutional principles, international treaties, highest state judicial agencies’ expertise, and common doctrinal assumptions of the experts in this branch of law; Ø In specific cases construction should establish the objectives that regulate a legislator who drafted the constructed statutory provision.
In addition, construction of statutory provisions should take into account fundamental international legal doctrinal principles, directly or indirectly, contained in the legislation, such as: «Lex specialis derogat generali« (Specific law prevails over general law), «Lex superior derogat legi interior» (a law higher in the hierarchy repeals the lower one), «Lex posterior derogat lex prior» (A later statute takes away the effect of aprioe one) etc.
Results of Construction
In most cases the results of construction are embodied in a statutory construction act. It can be a regulatory act (e.g. a resolution of the RoK Constitutional Council, a regulatory resolution of the RoK Supreme Court), a law-enforcement act of the competent authority (e.g. court injunction), another legal document (e.g. a statement of claim, amicable agreements, a protocol on dispute settlement) or a text, which does not contain legal specifics (e.g. a scientific article, an expert opinion etc.).
It should be noted that an interpreter of a statutory provision acts both as a critic of the provision, i.e. establishes whether the constructed provision of the Constitution is consistent with other superior legislative acts and whether it contradicts (is in conflict with) the statutory acts of similar legal force. In addition, successful construction depends on many factors, including the perfection of textual properties of the constructed act, qualification of interpreters etc.
Construction Regulation
Though the process of statutory construction is intellectual and subjective, separate issues of construction can be regulated within the legal framework. Currently there is a special law in Kazakhstan designed to regulate the processes of planning, drafting, adopting, publication and construction of regulatory legal acts.[13] In particular, this law establishes the following general rules for official construction of the regulatory legal acts:
Ø In the cases of identifying of unclear points and different understanding of regulatory legal acts, contradictions in the practice of their application, an official interpretation of provisions contained in a given regulatory act may be issued; Ø In the course of the official interpretation of regulatory legal acts, the introduction of amendments and additions to them shall not be allowed; Ø Provisions of legislative [14] must be interpreted in full compliance with the provisions of the Constitution of the Republic of Kazakhstan; Ø The meaning of regulatory legal acts implementing laws, when such acts are interpreted must be disclosed in full compliance with the legislative acts. Ø The official interpretation of regulatory legal acts shall have obligatory nature when the legal provisions contained in them are implemented, in particular, when they are applied.[15]
It should be noted that pursuant to the said law, only government authorities are entitled to provide official construction of regulatory legal acts. Thus, the Constitutional Council of the Republic of Kazakhstan gives an official construction of the provisions of the Constitution[16], and official construction of subordinate acts[17] shall be provided by the bodies of official persons who adopted (issued) them.[18]
Unfortunately, in the commented legal act the body entitled to provide official construction of the provisions of «legislative acts» is not specified. This is a serious gap in the applicable law. Though in 1997 at the Session of the RoK Parliament during the discussions of the draft Law «On Regulatory Legal Acts», the Speaker of the Majilis (the lower chamber of the Parliament) filed an official inquiry with the RoK Constitutional Council regarding the RoK Parliament’s authority to provide official construction of the laws in accordance with the provisions contained in Articles 53-57 of the RoK Constitution. The RoK Constitutional Council, in its turn, by way of official construction of the said articles of the Constitution issued a resolution stating that Articles 53, 54, 55, 56 and 57 of the RoK Constitution establish an exhaustive list of the powers of the Parliament and its chambers, therefore the expansion of the scope of the Parliament’s authority, including the right of official construction of the law, is possible only by making changes to the RoK Constitution.[19]
Thus, pursuant to the applicable law there is no competent authority in Kazakhstan entitled to provide official construction of «legislative acts», hence there is an issue of ensuring uniform application of the Kazakhstani legislation.
Further, it should be noted that the procedure and regulations for the construction of statutory provisions are also contained in other legislative acts, e.g. the RoK Civil Code (hereinafter the RoK CC) stipulates that the norms of civil legislation should be interpreted in accordance with the direct meaning of their wording. If words used in the text of legislative provisions may be understood in various ways, preference shall be given to the understanding which meets the provisions of the Constitution of the Republic of Kazakhstan and the main principles of civil legislation.[20] When applying foreign law, a court shall establish the content of its standards in accordance with their official interpretation, the practice of application and doctrines in the relevant foreign state.[21] The applicable legislation of Kazakhstan provides for other forms of construction of statutory provisions. Thus e.g., a prosecutor has the right «to explain the content of a law» to physical and legal persons, as well as to the government authorities and official persons.[22]
Construction of Contractual Provisions
Construction of a contract (agreement) is the understanding of its actual meaning and content.
The need in construction arises because not infrequently contractual provisions have a very broad meaning and are not enough clear. It makes it difficult to apply them in a specific situation. Construction is also used in cases where there exists uncertainty and ambiguity (polysemy) of words, terms and expressions or where certain provisions do not correspond to or are inconsistent with other provisions.
In the construction of contractual provisions there should be observed general legal principles. Any interpreter should take into account literal meaning of the words and expressions contained therein. In case of ambiguity of a contract, the literal meaning of contractual provisions should be interpreted in good faith, and the terms should be ascribed an ordinary contextual meaning, given the subject and purpose of a contract.
In addition, a contract contains the text of agreement with the preamble and attachments as well as any agreement and documents related to the contract. Subsequent agreements and documents should be taken into account with respect to the construction and application of the contract. It is possible to apply materials prepared prior to the execution of the contract. Sometimes there is a necessity to get familiarized with the previous or concurrent background of the execution of the contract.
Construction exercised by the parties to the contract by agreement between them is called «authentic». It is executed in the form of a binding agreement. Disputes between the participating states with respect to the construction of the contract are to be resolved by negotiations or on the basis of another stipulated procedure, and in case of failure disputes are referred to the international courts of justice (in certain situations are subject to arbitration).
It should be noted that one of the subjects of legal construction is an «individual legal contract»[23] - an agreement of two or more persons based on statutory provisions and aimed at establishing individual specific types and measures of behavior. The construction of individual legal contracts, to which a subsoil use contract should be referred, as a specific type of legal construction by subject, first of all possesses features which characterize any type of legal construction (general features), secondly, specific features determined by the specifics of the subject of construction - an individual legal contract.
To prove that the construction of a contract relates to a specific type of construction, the specific features of an «individual legal contract» that differentiate it from other legal phenomena are analyzed (specific features):
Ø A contract is a key regulator of relations between the parties; it is binding only on the parties thereto; Ø It is an act of individual regulation; Ø A contract is a legal deal, a type of juridical facts in the form of legal acts of the subjects of law; being a type of legal relations it causes their appearance, change and termination; Ø It is an act of volition characterized by bilateral or multilateral nature, because a contract is a deal and is deemed to be an act of volition of all parties thereto, given that a conditio sine qua non is the unity of will; Ø It is an agreement, therefore as noted above, there should be the unity of will of all parties to these contractual relations on all material terms of the contract; Ø A contract contains is secured by legal sanction; Ø It is an act of free expression of the will; Ø A contract has a specific content embodying its terms, i.e. conditions that the parties agreed to; Ø A contract is of a subordinate nature; Ø It has specific formalities of its execution; Ø It performs specific functions; Ø It is executed in the established procedure by two or more persons under their mutual consent and expresses their actual joint will unlike the sole «political will», expressed in regulatory legal acts; Ø It is executed under a specific procedure stipulated both by the law and the parties thereto.
Summarization of the available materials on the theory of law allowed concluding that the above features of «individual legal contracts», in their turn, can be described as general for all types of individual legal contracts, because specific case-to-case content depends on the branch of industry individual legal contracts relate to and the type of an individual legal contract within the specified branch of industry.
I would like to substantiate a necessity of legal construction of individual legal contracts, including subsoil use contracts. Such necessity arises due to both general and specific reasons:
Ø Existence of specifics of the subjects eligible to act as parties to a contract (e.g. one party to subsoil use contracts is the Authority representing the state interests); Ø Specifics of the activities of certain subjects of law; Ø A potential opportunity of non-compliance with the requirements to the style and structure of the text of legal acts; Ø Existence of subjective volitional, bilateral (or multilateral) nature; Ø Intent to use for individual regulation of public relations; Ø Based on the dispositive method of legal regulation; Ø Absence of universal obligation (a contract is not universally binding as, for instance, the regulatory acts of a legislator, it is simply binding only on the parties thereto); Ø Existence of specific forms of a contract: on the one hand, the terms of a contract are fixed at the parties’ discretion, on the other hand, they should not violate the established requirements to its form, and therefore there is a necessity to resort to the acts on official construction and regulatory legal acts; Ø Existence of different types of individual legal contracts, each having its specifics to be taken into account in their construction; Ø A possibility to challenge the existence of contractual relations, a contract of specific type, certain conditions (to dispute the meaning of a contract); Ø Legitimacy of protest or appeal of a law-enforcement act containing the results of construction of the said contract; Ø A possibility to construct a draft contract; Ø A necessity to construe a contract subject to changing conditions.
Thus, «construction of individual legal acts» is a specific type of legal construction constituting a specific legal activity of the parties to a contract, their representatives, judicial agencies and other subjects of law aimed at understanding of the meaning of the terms of individual legal contracts for the purpose of direct or indirect implementation of the contracts and based on the standard techniques of legal construction and techniques subject to the specifics of individual legal contracts.
Further, it is important to identify different aspects of construction of individual legal contracts, including subsoil use contracts. Thus, construction of contracts can be considered:
Ø First, as a specific legal activity - an activity of the parties to the contract prior to the execution of the contract (construction of the draft contract); activities of the parties prior to the exercise of their legal rights and obligations arising from the contract; a type of legal activity of the persons representing the parties (i.e. so-called legal practice). Ø Secondly, as a type of intellectual thought process of understanding the meaning of the terms of the contracts and its result. Ø Thirdly, a method of sharing legal information, legal knowledge and expertise by the parties to the contract among themselves and other persons.
Specifics of Interpretation of the Provisions of Subsoil Use Contracts
It is known that in the Republic of Kazakhstan since early 90’s of the last century the right to use subsoil has been granted on the basis of a contract. It is a specific type of a civil contract, one of the parties to which if the Competent Authority. In some earlier executed subsoil use contracts, the Republic of Kazakhstan per se as an independent subject of civil relations was a party to the contracts. Currently there exist different opinion concerning the role and place of the state in subsoil use contracts, scientific debates regarding this issue are going on between the representatives of the Kazakh civil school and political scientists. Regardless details of this scientific discussion, with respect of I repeatedly stated my own position, I would like to enlarge on the specifics of construction of the provisions of subsoil use contracts. Most contracts contain the principles and ways of the construction of their provisions, rules for resolving differences connected with the construction. These provisions are based on the generally recognized international practice. Thus, e.g., one of the contracts executed during the first years of the modern history of Kazakhstan contain the following principles of construction:
Ø The agreement of the parties is subject to compliance (pacta sunt servanda); Ø Words used in the contract shall be construed in their general grammar meaning unless modification is required to avoid nonsense, inconsistency or contradiction; Ø Terms and conditions of a contract can be implied so as to implement the alleged intent of the parties, but any such term or condition should be reasonable, necessary to ensure commercial activity under the contract; obvious and clear and should not contradict expressly stated terms and provisions.
This subsoil use contract stipulated the principles for arbitrators to resolve a dispute arising between the parties to the contract in the course of its implementation; they read as follows:
Ø A contract and all documents associated with it shall be construed as the whole; Ø If certain objects are expressly specified in the contract, a conclusion can be made that other unspecified objects of the same category were not included by the parties intentionally; Ø The legal principle eiusdem generis is applied; Ø Arbitrators should prefer the construction confirming the contract rather than invalidating it; Ø In case of evident ambiguity, arbitrators should apply the general rules of construction, in case of latent ambiguity, arbitrators can apply any principles of obviousness related to the matter, including direct reference to the obvious intent of the parties; Ø Erratic expressions can be corrected through construction; and the wrong results should not be reinterpreted, they should be corrected.
It should be noted that strict compliance with these principles in the construction of contractual provisions to greater extent prevents disputes between the parties to a contract.
The Issue of Construction of the Provisions of Subsoil Use Contracts
Regardless the existence of unambiguous theoretical findings with respect of the construction of the provisions of individual legal contracts, there exist generally recognized principles and techniques of their construction, in reality there exist a number of issues causing disputes between the subjects of such legal relations. The main reason for such disputes between the parties on the construction of contractual provisions is disregard by the parties of the key principles of this process - good faith,[24] rationality[25] and equity[26].
A good example of disregard of the above principles of construction can be the extending to some subsoil users in Kazakhstan of the legislative requirement to pay «export customs duty» on crude oil, though the provisions of the contracts executed by them and warranties granted by the state, give them the right to a free export of this type of hydrocarbon crude outside the country without paying customs duty. E.g. let us consider the provision of the Karachaganak Project Production Sharing Agreement with regard to this situation.[27]
Thus, pursuant to Section 3.1(с) of Article III of the FPSA, Karachaganak Petroleum Operating B.V. (hereinafter KPO) was granted «the right in its sole discretion to transport within and freely export from Kazakhstan» the Contractor’s share of Petroleum. KPO, subject to the provisions stipulated in Article XIX of the FPSA, shall pay only those «taxes and other obligatory payments», including customs duties, which were effective on the date of execution of the FPSA (November 18, 1997).
Section 19.9(g) Article of the FPSA specifies that «the tax regime provided by Article XIX is stable for the entire effective period» of the FPSA. In addition, pursuant to Section 1.1 of Article I of the FPSA «taxes» mean «any taxes, national or local, imposed by any governmental authority empowered to levy taxes within the Republic, including, but not limited to, income tax (profit tax), any excess profit tax, any withholding tax, VAT, capital gains tax, duty, including all customs duties and fees and all import and export taxes and duties»
The construction of this contractual provision should not have caused differences in its understanding because its meaning and sense expressly allow concluding that the state warranted to KPO the right for the stable tax regime and other withholding to the state budget, including customs duties. However the government authorities in violation of the principles of good faith, rationality and equity construed this provision so that KPO was compelled to pay under the protest the export customs on crude oil. As the result of wrong construction or willful misinterpretation of this contractual provision by the representatives of the state financial authorities, the subsoil user is compelled to make monthly payments of export customs duty assessed in tens of millions of US dollars. To date this dispute has not been resolved and it might become the subject of international arbitration, which fact could have a negative impact on the reputation of the Republic of Kazakhstan and the investment climate in the country.
It is worth to recall the dispute of the subsoil user and the environmental authority with respect of Tengiz sulphur, which is has been and is considered regardless the statutory and contractual provisions, international legal acts and standards as a type of industrial wastes subject to all consequences. Meanwhile sulphur is an important mineral; and sulphur produced by Tengizchevroil (its purity is 999.9) is one of the most demanded product in the market. Though currently the dispute between the authority and the company has been resolved, nevertheless this issue remains open. The reason for this dispute was the improper construction of the provisions of the legislative acts and contractual provisions.
Another example: one of the subsoil users was granted under the executed subsoil use contract the right to produce hydrocarbon crude within the limits of the block and «from any depths below Post-Salt Sediments». Any geologist or oilman, moreover the representatives of the environmental authorities, know and understand that «Post-Salt Sediments» are subsoil depth intervals above the «salt-bearing» layer, and «Sub-Salt Sediments» are subsoil depth intervals below the «salt-bearing» layer, which begin, e.g., in West Kazakhstan at the depths 2700-3600 meters (Zhanazhol Field) and continue to the depths up to 3800-5500 and lower (Tengiz, Korolyov and Karachaganak fields).
However, in spite of an express contractual provision on the depth of block development, the government authorities filed a claim against that subsoil user concerning illegal production of oil from the specific depth of hydrocarbon crude deposition regardless the fact that the disputed production depth is lower than the «Post-Salt Sediments». In addition, the main argument of the government authority
was that «Mining Allotment»[28], granted to the subsoil user limited the depth of mineral production. Meanwhile this document contained a special provision for its revocation and replacement upon occurrence of certain conditions. Prior to the dispute and currently, such conditions have not occurred.
The above example evidences that the representatives of the authority in their construction of this contractual provision did not take into account one of the main principles of construction to be applied if the terms and conditions of a contract are implied so as to implement the initial intent of the parties ensuring the activity of the subsoil user. Currently, nobody, including the representatives of the regulating government authorities in the sphere of subsoil use and other regulating government authorities have doubts that the subsoil user was granted the right under the contract for production of hydrocarbon crude within the specified block and from «any depths below Post-Salt Sediments», and it means the dispute is based on the wrong construction of the contractual provision.
Examples of wrong construction or willful misinterpretation of statutory and contractual provisions are numerous. But this is not the main target. The main purpose is to note that all parties to any legal relations should act in strict compliance with the rules of the applicable law. The parties to a civil contract, including a subsoil use contract should fulfill the terms of a contract and in case of a dispute it should be resolved by correct construction of its provisions based on the existing principles, including the principles of good faith, rationality and equity, as well as by means maintaining law and order.
[1] © All exclusive copyrights to this work are reserved by Zh.S. Yelyubayev. [2] Construction - understanding, exhaustive explanation, clarification and interpretation. // The Great Explanatory Dictionary of the Russian Language, Saint-Petersburg, 1998, page 1328. [3] Sub-clause 1) of Clause 1 of Article 76 of the Law of the Republic of Kazakhstan “On Subsoil and Subsoil Use” of June 24, 2010 No. 291-IV. [4] Article 8 of RoK Law “On Subsoil and Subsoil Use” of June24, 2010 No. 291-IV. [5] Analysis (with respect to the subject in question) is a method of research consisting in separation of the intellectual whole into its constituent parts. // The Great Explanatory Dictionary of the Russian Language, Saint-Petersburg, 1998, page 38. [6] Synthesis is a method of research consisting in the study of the subject, phenomenon as the whole of its constituent parts; generalization, combination of data obtained by analysis. // The Great Explanatory Dictionary of the Russian Language, Saint-Petersburg, 1998, page 1187. [7] Induction is a technique of reasoning from separate facts and provisions to general conclusions, summarization (opposite - deduction). // The Great Explanatory Dictionary of the Russian Language, Saint-Petersburg, 1998, page 392. [8] Deduction is a technique of reasoning from general to separate provisions, a logical inference of separate provisions from a general idea (opposite - induction). // The Great Explanatory Dictionary of the Russian Language, Saint-Petersburg, 1998, page 245. [9] Abstraction is a through process by which essential and regular features are derived from the properties, features and relations of objects and phenomena. // The Great Explanatory Dictionary of the Russian Language, Saint-Petersburg, 1998, page 24. [10]Analogy (with respect to the subject-matter) is a logical form of conclusion by which, based on the similarity of two objects, phenomena, an inference is made with all other respects. // The Great Explanatory Dictionary of the Russian Language, Saint-Petersburg, 1998, page 39. [11] Dogmatic analysis is an abstract and schematic analysis of phenomena, objects, situations, including statutory provisions. // The Great Explanatory Dictionary of the Russian Language, Saint-Petersburg, 1998, page 266. [12] Legal comparative method is a legislative historical comparative analysis of the lexical meaning of the statutory provisions. // The Great Explanatory Dictionary of the Russian Language, Saint-Petersburg, 1998, page 466. [13] Law of the Republic of Kazakhstan “On Regulatory Legal Acts” dated March 24, 1998 No. 213-I. [14] Legislative acts - a constitutional law, a decree of the President of the Republic of Kazakhstan having the force of a law; a resolution of the Parliament of the Republic of Kazakhstan, a resolution of the Senate and the Majilis of the (clause 2 of Article 1 of the RoK Law “On Regulatory Legal Acts”). [15] Article 44 of the Law of the Republic of Kazakhstan “On Regulatory Legal Acts”. [16] Clause 1 of Article 45 of the Law of the Republic of Kazakhstan “On Regulatory Legal Acts” and sub-clause 4 of clause 1 of Article 72 of the RoK Constitution. [17] Subordinate regulatory legal acts - other acts that are not legislative, regulatory legal acts issued on the basis and by way of compliance with the Constitution, and legislative acts of the Republic of Kazakhstan (clause 3 of Article 1 of the RoK Law “On Regulatory Legal Acts”). [18] Article 45of the RoK Law “On Regulatory Legal Acts ”. [19] Resolution of the RoK Constitutional Council dated October 15, 1997 No. 17/2 “On Official Construction of Articles 53-57 of the Constitution of the Republic of Kazakhstan establishing the authority of the Parliament and its Chambers”. [20] Article 6 of the Civil Code of the Republic of Kazakhstan. [21] Article 1086 of the Civil Code of the Republic of Kazakhstan. [22] Articles 18 and 26 of the RoK Law “On Procuracy” dated December 21, 1995 No. 2709. [23] Individual legal contract is a type of legal contracts, it possesses the following features: it is a legal regulator of the relations between the parties; it is binding on the participants; it is an individual legal fact; it is an act of volition; it relates to multilateral acts characterized by the unity and free expression of will of the parties thereto; it is secured by the measures of state influence; it is executed on an individual basis; it serves as an indirect perpetrator of political will expressed in regulatory legal acts and other forms of lawи; and is executed in accordance with a specific legal procedure. [24] Principle of good faith means commitment to accepted obligations both by letter and spirit of the reached agreements, it means integrity and rationality of the parties. [25] Principle of rationality means a balance of own and other interests based on good faith, it means fairness of an acting subject towards another person. [26] Principle of equity is a moral category according to which anything perceived as good and proper is fair. The general legal principle of equity suggests a balance of rights and legal interests of the participants in civil turnover. The principle of equity is demonstrated in the rules that the results of construction should prejudice the legal interests of one of the subjects. The principle of equity suggests the construction of doubts for the benefit of a committed person. [27] “Final Production Sharing Agreement” on the Karachaganak Project is placed on the public site of the RoK Government (Reference Legal Database “РЦПИ” of the RoK Ministry of Justice), and on the web-site of the commercial reference legal database “Paragraph”, therefore it is not a confidential subsoil use contract. [28] Mining Allotment - document being an integral part of contract for mining, combined exploration and mining, defining graphically and descriptively terms of the block of subsoil on which a subsoil user is entitled to carry out mining, construction and/or operation of underground structures unrelated to exploration and/or mining (clause 97 of Article 1 of the RoK Law “On Subsoil and Subsoil Use “ dated June 24, 2010 No. 291-V).
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