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INTERNATIONAL COOPERATION AND RENDERING ASSISTANCE IN ELABORATION OF THE COMMERCIAL LEGISLATION IN KAZAKHSTAN
1. The legal development of the sovereign Kazakhstan has commenced upon the breakup of the USSR and Kazakhstan's declaration of state independence (December 16, 1991) as well as adoption of the first Constitution of the Republic of Kazakhstan (January 28, 1993) which was substituted by the Constitution of 1995 (August 30, 1995). The turning point in the development of the commercial legislation has become the Civil Code of the Republic of Kazakhstan (General Part), adopted on December 27, 1994, on the basis of which a great number of laws constituting the fundamental base of commercial legislation (in particular, on enterprises, on business partnerships, on bankruptcy, the securities market, on registration of immovable property, on mortgage, on land, on subsurface, etc.). Were elaborates In the present time elaboration of the Special Part draft of the Civil Code has been accomplished, and has been already approved in the first reading by the Parliament of the Republic of Kazakhstan.
2. This tremendous by volume and content work (because during the period of seven to eight years an essentially new system of commercial legislation should be created) could not be carried out without the assistance of Western states and international organizations. First of all, I am grateful for such assistance to the World Bank, USAID, the Centre of International Law Cooperation of Leiden University (Netherlands), as well as to the German Society on Technical Cooperation (Germany) and other organizations. Currently in Kazakhstan a unique situation has arisen in comparison with the other CIS countries with regard to elaboration of commercial legislation which becomes possible due to the uniting of three forces: the scientist-civilists, the Ministry of Justice of the Republic of Kazakhstan, and foreign assistance. Beginning in 1992 the working group of commercial legislation elaboration consisting of the scientists in the sphere of commercial legislation acted under the Ministry of Justice of the Republic of Kazakhstan. This group has prepared drafts of the Civil Code, as well as more then 35 draft laws on commercial legislation which have already approved and adopted. There are the same problems in Kazakhstan as well as in the other CIS countries. It is rather frequent that insufficiently competent experts who do not know the legal system of Kazakhstan well come to us and make attempts to thrust on us draft laws, which can not be acceptable for Kazakhstan by content or by wording thereof. Unfortunately, great amounts were spent on such travels and such drafts, quite often at the expense of loans granted to Kazakhstan (technical assistance). For example, our Working Group has elaborated the draft Law «On Oil» (approved in June 1995). More than 30 readings and comments were received from over than 100 foreign firms and organizations including the World Bank. But during my visit to Washington in 1996, I was greatly surprised that it was the World Bank that elaborated the Law «On Oil.»For Kazakhstan it means that a group of lawyers had come to Kazakhstan at the expense of the World Bank's loans granted to Kazakhstan in the framework of technical assistance, and had submitted to the World Bank the draft of our group as their own draft. An analogous situation arose with the draft Law on Energy (approved in December 25, 1995). A group of American lawyers, arriving in Kazakhstan and acting in the framework of USAID's project, drafted the law in the typically American style, which could be applicable to the American reality. They knew nothing about legislation of Kazakhstan and they had no any intention to study it. And we had an impression that they were going to Kazakhstan where the legal system was not developed at all. The American draft was rejected and it was our group that drafted that law. And I am quite sure that those lawyers successfully reported to USAID about their work. At the same time there are a lot of positive examples of assistance rendered by foreign organizations. I think, that the most successful projects in Kazakhstan is elaboration of commercial legislation, which at its initial stage was financed by the World Bank with the active support of the Center of International Law Cooperation and the Institute of European Law of Leiden University (Netherlands), and then by USAID. Here the assistance was concrete and directly rational. The Ministry of Justice announced a tender on rendering such assistance, and eight foreign law firms participated in it. The tender was won by the American Company «Pepper, Hamilton & Scheetz», which was working by the Ministry of Justice's tasks and through the Working Group, mainly consisting of local lawyers. The work of the firm «IRIS» in the framework of USAID's project was organized also under the same principle. Due to such cooperation the major parts of the laws were drafted that constitute the fundamental structure of the commercial legislation of Kazakhstan. 3. The analysis of assistance rendered to Kazakhstan demonstrates that such assistance may be effective only given a sufficiently respectful attitude towards the legislation of accepting country, involvement of local lawyers who have a good knowledge of legislation, and use of foreign experts and the international expertise thereof mainly for making comments upon draft laws prepared by local lawyers. The fundamental condition of efficiency of such assistance shall be the existence of a coordinating center in the receiving country, and through which the foreign assistance shall be received in the sphere of legislation. For such purposes, probably the Ministry of Justice would be the best center. When there is an attempt to render a legal assistance, it shall be necessary to take into consideration the legal system that has been already formed in the CIS countries. It is still united on its basis and it considers in its development the continental law system (Romance and Germanic law family). The attempts to build into this system elements of English and American law system (such as trusts, the right of fairness, refusal from stock capital in the joint-stock society, etc.), which as a matter of fact are alien to it, could incur only damage. It shall be necessary to consider the Model Legislation, which has been formed and developed in the CIS countries. The scientists-civilists of all CIS countries have already elaborated the Model Civil Code, model laws on joint-stock societies, on limited liability partnerships, on mortgage, on bankruptcy and others which have been approved by the Interparliament Assembly of the CIS countries in St-Petersburg. These model laws shall be used as acts of recommendation and provide significant assistance to the republics, which do not have their own scientific sources for elaboration of independent drafts.
Печатается по: Maidan K. Suleimenov. International cooperation and rendering assistance in elaboration of the commercial legislation in Kazakhstan. // What role for the west? 1999. April 23-24. P. 63-64.
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