THE LEGAL BASIS FOR THE SECURITIES MARKET
IN THE REPUBLIC OF KAZAKHSTAN
Legal support for the securities market falls within the state's activities in a person of its agencies for the purpose of enacting relevant legislation creating the necessary conditions under which securities can circulate in the most effective and appropriate manner. The state interests can thereby correspond to the needs of the public to the maximum extent, according to the objective economic laws for the development of any market-oriented society. In our case, the term «legislation» (zakonodatel'stvo) includes all the laws of the Republic of Kazakhstan, Presidential Edicts, and Decrees of the Kazakhstani Government, as well as any other normative legal acts enacted by the National Securities Commission and other national executive bodies within their authorities. When dealing with legal support for the securities market first, we need to specify that such a market is understood as a field where certain pecuniary debt obligations, rights of participation in capital and management circulate (i.e., are sold and purchased) with respect to business entities set up in specific organizational and legal forms. The aforementioned types of property rights in the securities market are certified by a special type of documents called securities, or by other methods certifying property rights established by law (e.g., non-documentary securities).
As they are basically a form of certain civil law relations, not all types of securities may circulate in the securities market. In particular, mortgage certificates, bills of lading, and other types of commodity instructional documents recognized by Kazakhstani law, circulate in the commodity markets, including a commodity exchange. In its turn, the securities market, being an element of the financial market, includes the following types:
- the capital market, where stocks and bonds are sold and purchased and where other obligations circulate relating to the attraction of funds for setting up enterprises and developing business activities, as well as for solving national or local (oblast') economic, social and cultural problems; and
- the money market, where short-term monetary obligations (promissory notes, bills of exchange, checks) circulate, performing the function of payment instruments by means of delayed or split (by installments) payments.
In this article, we will research the issue of legal support for capital and money markets in the Republic of Kazakhstan.
1. Development of Securities Legislation in Kazakhstan
Until recently In Kazakhstan, there was were no securities market as such. However, civil legislation had always admitted that securities could circulate in this country. But, in fact, no economic prerequisites for securities circulation existed in Kazakhstan. Under the Soviet regime, there was no need for securities circulation in the internal market. Only with market-type reforms in the Republic the issue of establishing a securities market emerge. It was at this time that Kazakhstani economists, lawyers, and legislators turned not only to the modern experience of developed economies but also to their own legacy with respect to regulating the processes of securities circulation.
Kazakhstani securities legislation has grown on the basis of the norms of Russian civil (commercial) law, and by now, it has overcome a number of phases in its development. Before the 1917 socialist revolution, Kazakhstan was a part of the Russian Empire, and civil and commercial (trade) relationships during the course of 18th and 19th centuries were, therefore, regulated by the norms of Russian commercial law. We should also keep in mind that no securities market had ever existed in Kazakhstan due to the lack of the necessary economic conditions: historically, the Republic's economy had been basically stock-breeding-oriented and, normaly as a rule, was based on barter transactions.
After October 1917 (that is, after the 1917 socialist revolution), during the first decades of Soviet power, such relations were regulated by the RSFSR's civil legislation. During that period, NEP (New Economic Policy) legislation created the most viable legal basis for securities circulation. We would like to emphasize that under «securities circulation», we have in mind the money market where bills and checks were used as a means of payment in actual trade transactions, as well as the commodity market as a sphere where commodity papers (e.g., warehouse certificates) circulated. That legislation, inter alia, was comprised of the following basic acts:
- the RSFSR (Russian Soviet Federative Socialist Republic) Civil Code of 1922;
- the Statute on Bills of Exchange and Promissory Notes approved by TsIK and SNK of the RSFSR, 7 August 1937;
- the Statute on Checks approved by TsIK and SNK of the RSFSR, 6 November 1929; and
- several other normative acts.
During that period, notes and checks were the most popular types of securities which were used as a means of payment during the course of trade transactions. In addition, warehouse and pledge certificates were used in transactions relating to the storage of goods, real estate sales and purchases, etc. Legislation provided a general definition of securities, as well as indicating various types of securities and establishing fundamental rules for transferring and exercising property rights certified by respective types of securities. However, the circulation of such instruments did not create a securities market per se, which could have helped to attract financial resources for production purposes and to redistribute such resources, promoting the development of the national economy. No mechanisms existed which could be used for issuing and circulating investment securities (the stocks and bonds of legal entities); furthermore, there was no legal basis for stock exchange transactions or the activities of professional traders (dealers) and intermediaries (brokers) in the securities market, as the latter were considered to be elements which were alien to the ideas of proletarian socialism and communism.
Later on, the development of legislation based on the Principles of Civil Legislation of the USSR and Union Republics of 1961 resulted in terminating any circulation of securities in the «internal market» of the former USSR, including Kazakhstan. The USSR Constitutions of 1936 and 1977 prohibited private ownership and did not provide for entrepreneurial freedom, which automatically excluded the possibility (and, in fact, even the right) to set up joint-stock companies, economic partnerships and partnerships that could issue circulating stocks and bonds. As far as government securities were concerned, government bonds were issued «within» the country, which were in fact called securities. However, such bonds did not circulate (circulation would have been meaningless anyway) «within» the country, as there were no incentives by which to encourage such a «play» as regards those securities: the government was interested in attracting money, whereas the people were only concerned with receiving their interests and being awarded with prize money. And the only possibility of deriving profits as a result of purchases and sales of government bonds was alien to the ideas of building communism. Moreover, one of the basic principles of civil law was often violated, namely the freedom of contract, when told securities were imposed on the people, for example as a part of their wages. At the same time, securities were considered to be objects of civil rights and civil transactions. For instance, according to Article 128 of the 1963 Civil Code of the Kazakh SSR, payment documents (notes and checks) and stock exchange valuables (shares and bonds) denominated in foreign currencies were allowed to circulate within certain limits established by the USSR's laws. According to Article 126 of the 1963 Kazakh Civil Code, within the process of commodity circulation, bills of lading and other commodity instruction documents could be used.
Here, we should remember that the absence of any market infrastructure in the former Soviet Union discouraged foreign issuers from attracting Soviet investors' funds using securities for this purpose. This situation resulted in a zero-level circulation of foreign securities on the territory of the Soviet Union.
It is worth mentioning that notes, checks, and other instruments were also actively used in Soviet foreign trade transactions as a means of payment. In particular, this may be confirmed by the fact that in 1936 the Soviet Union signed the 1930 International Convention that established the Uniform Law on Bills of Exchange and Promissory Notes. The Convention was made effective in the Soviet Union after the entering into force of the 1937 TsIK and SNK Decree on the Enactment of the Regulation on Bills of Exchange and Promissory Notes. That Decree remained effective until the Soviet Union broke up and Kazakhstan became a sovereign state. As it was already mentioned, checks were circulated on the territory of the Soviet Union on the basis of the 1929 Statute on Checks.
The ideas of perestroika resulted in an awareness of the need to discover some methods by which to increase the effectiveness of activities, using additional (or alternative) sources for generation finance as well as for creating incentives for people to become involved in independent business entrepreneurial activities or in investing their personal savings in such a way that could guarantee a certain degree of their safe-keeping and growth. It was at that moment that securities and other forms of business activities involving including securities were reanimated as a vehicle to attract money subject to various conditions in order to establish and/or develop business activities. This stage was marked by the USSR Cabinet of Ministers' Decree of 19 June 1990, approving the Statute on Securities and then, on 31 May 1991, by the new Principles of Civil Legislation of the USSR and the Union Republics, one of the chapters of this latter document dealing exclusively with the concept and types of securities, as well as establishing basic principles for the transfer of securities and the enforcement of property rights fixed in such securities. The above-mentioned Principles remained valid concerning the part covering issues relating to securities until the moment when the new Kazakhstan Civil Code was adopted, which was confirmed by the Enactment on Regulating Civil and Legal Relations During the Period of Economic Reform, enacted by the Kazakhstan Supreme Soviet on 30 January 1993.
In Kazakhstan, as as during the above period (1990 to the beginning of 1994), a certain legal basis was established which made it possible to issue securities and to trade them in a number of markets. In addition to the said Principles of Civil Legislation, such a legal basis was comprised of the following legal acts:
- the Law of the Republic of Kazakhstan on Economic Partnerships and Joint-Stock Companies of 21 June 1991, which authorized the formation of joint-stock companies, partnerships in commendam and limited liability partnerships, which were raising (or, at least, were authorized to raise) funds for their activities by issuing shares and bonds;
- the Law of the Republic of Kazakhstan on Securities Circulation and the Stock Exchange, dated 11 June 1991, regulating the following matters: the issuing of securities, the registration of such issues, licensing intermediary activities in the securities market, and the formation and operation of the stock exchange;
- Statute on Securities approved by a Kazakh Cabinet of Ministers' Decree No. 701 of 13 November 1991, a Statute which defined all the relevant types of securities and the necessary particulars relating to each type;
- other normative legal acts defining the procedures for the following: issuing government securities; state registration of securities issued by legal entities; licensing intermediary activities in the securities market, etc., which were based on the said laws;
- a number of legal acts and sub-laws paving the way for deregulation and privatization (including corporatization as a method of conducting these two processes) and regulating the acquisition of privatized entities' share packages by privatization investment funds;
- certain normative legal acts issued by the National Bank of Kazakhstan which regulated the issue and circulation of notes, bank (deposit) certificates; These acts are valid for all banking activities and banking services.
During that period, shares were issued by joint-stock companies, including such companies formed as a result of privatization, stock and stock/ commodity exchanges were set up, and local governmental agencies attempted to issue their own securities. So-called professional participants also appeared in the securities market. Although existing after that securities market was not perfect, the notion of forming a securities market in Kazakhstan was no longer at a complete standstill; the application of those legal acts helped to accumulate and, to a certain extent, to rethink the country's own experience in this field.
One of the results of this experience was an awareness of the fact that the operation of the capital market as an element of the securities market was somehow counterbalancing the banking sector. Given a reasonable government policy, both of these two sectors - while being parallel to, though relatively independent of each other - are mechanisms used for investing in the economy and for redistributing the investments. In the event that one of the two becomes subject to a crisis, another which continue to function, would not allow this crisis to paralyze the national economy as a whole and would even contribute to the other sector's accelerated recovery.
Another important «lesson» was an understanding the state's multiple role in the securities market in which it may simultaneously act as an issuer of government securities, an investor and player carrying out the functions of state regulation and control as regarding securities market relations. In this case, the state is represented by its various agencies. The reason for this is that the same one person may not participate in a «game» along with its other participants, at the same time establishing the rules for itself and those other participants. Under such circumstances, two negative aspects must be considered: on the one hand, the state, acting in its own interests, may infringe upon the other participants' legitimate rights and, on the other hand, like any other participant, the state needs to ensure the protection of its own legitimate interests.
In this connection, on 20 March 1994, the President of the Republic of Kazakhstan issued an Edict «on Measures to Form the Securities Market», which symbolized a new stage of state regulation of the securities market and securities legislation. With this Edict, the Statute «On the National Securities Commission» was approved, a Commission which was defined as a governmental agency regulating securities market relations and exercising control thereover.
The principal functions of this agency were defined as following:
- licensing professional activities in the securities market,
- registration of non-governmental issues of securities,
- enacting normative legal acts regulating relations in that market,
- control over the observance of laws by all market participants,
- measures directed at the protection of the participants' interests,
- state support for the formation and development of the market infrastructure, etc.
Thus, the above Edict issued by the President of Kazakhstan, recognized the significance of the securities market for the national economy and the special status of the state in this market; it also confirmed the need to provide for the state regulation of capital market relations and the fact that the securities market - falling within the sphere of redistribution of ownership, property and political interests - should be relatively independent.
However, the Edict also had a negative effect. This legal act repealed the 1991 Law of the Republic of Kazakhstan on Securities Circulation and the Stock Exchange and Regulation on Securities. In fact, during a six-month period in 1994, the Kazakhstani securities market did not have an appropriate legal basis. All steps taken by government agencies in connection with licensing intermediary activities in the securities market and in registering the issue of securities could be appealed at any time, although it was impossible to substantiate such steps by relying on legislation. Fortunately, nothing serious happened in those days, but it did establish undesirable practices according to which governmental agencies could assert any rights and authorities in order to regulate the market sphere. Only on 3 October 1994 did the Kazak Cabinet of Ministers issue its Decree No. 1099 approving an Interim Statute on Securities Issuance and Circulation and the Stock Exchange and the Interim Regulation on Securities.
The above Interim Statutes filled a gap in the legal regulation of securities relations, the registration of the securities issue, licensing certain professional activities in the securities market, stock exchange formation and operation. In addition, the basic types of securities and their obligatory requisites were provided in the Statutes. The adoption and application of this Statute mark a notable stage in the development of the legal basis on which the Kazakhstani securities market rests. This stage lasted until April 1995. The appointment by the Republic's President of the first Chairperson, the other first four members of the National Securities Commission and the formation of the Commission's executive body in January 1995 was an important landmark on that stage. It was at that time when the National Commission began to perform its functions and to exercise the powers delegated thereto.
On 27 December 1994, the Kazakhstani Civil Code (the General Part) (the CC) was adopted, which formed the basis for the current legislative regulation of the Kazakhstani securities market. Since April 1995, a new stage in the development of the market itself has commenced. From the very beginning, this stage was marked by the adoption of a fundamental normative legal act, regulating securities market relations in Kazakhstan, and an inauguration of the Central Asia Stock Exchange in Almaty.
2. Existing Kazakhstani Securities Legislation
The existing legal basis rests on the norms of the 1995 Constitution of the Republic of Kazakhstan, which guarantee the recognition and equal protection of state and private property and citizens' rights to own any legally- acquired property, as well as entrepreneurial freedom and the prohibition of fraudulent competition.
On the basis of principles contained in the CC as adopted on 27 December 1994, securities as a type of property rights are recognized as objects of civil rights destined for free circulation, ownership rights being among them. Paragraph 2 of Chapter 3 of the CC consolidates the legal definition of securities, enumerates and describes the types of securities, classifies them in accordance with their different legal basis, establishes the requirements for securities and the principles for transferring rights to securities, regulates the execution of securities as well as the renewal of rights e.g., to lost bearer securities. It is necessary to mention that, in regulating securities, the CC is directed towards the circulation of material objects. That means that securities, determined as documents, are recognized as the object of material rights; as regards to their circulation, they are subordinated to the regime of goods. At the same time, the CC states that the securities market is, in essence, the sphere of circulating the property rights (financial obligations). Here, the Code takes into account the experience of developed financial markets where securities actually do not circulate according to the traditional understanding of Kazakhstani legislation; rather, dematerialized securities - that represent financial obligations of the issuers of investment securities - serve as the subject-matter of transactions. In this connection, in Article 135 the CC provides for the opportunity to issue so-called non-documentary securities, where the relevant property rights are certified only by a record kept in books or computerized registers instead of securities in their more traditional embodiment as a such. This Article in the CC serves as the basis for establishing and developing a modern securities market infrastructure in Kazakhstan oriented towards the world financial markets.
In accordance with the norms of the CC and on the basis of additional power delegated thereby to the President of the Republic of Kazakhstan, some Edicts having the force of a Law have been promulgated which in correlation with the CC, constituted (or currently constitute) the legal basis of the securities market functioning in Kazakhstan. Among those acts are the following:
- An Edict of the President of the Republic of Kazakhstan having the force of a Law «On Securities and Stock Exchange» of 21 April 1995, No. 2227. This Edict was aimed at the establishment of compulsory requirements with respect to the state registration of non-state securities issues, the procedure and the maturity of their distribution, and general conditions for maintaining a shareholders' register. The determination of the status of the National Commission on Securities as the authorized state body regulating the relationship of the securities market of Kazakhstan was at a crucial moment. The Edict paid special attention to define the main types of professional activities on the securities market, regulating the conditions for the licensing and implementation thereof, and determining the procedure for the registration of securities transactions. Furthermore the Edict: (a) reflected the procedure for the establishment and operation of the stock exchange, (b) provided an opportunity to form other types of organized securities markets (for example, the automated quotation systems an the extra-exchange securities market), and (c) established the right of professional participants in the securities markets to unite in non-commercial institutions, representing the joint interests of the participants thereof. The Law «On Securities Market» of 5 March 1997 later repealed this Edict.
- An Edict of the President of the Republic of Kazakhstan having the force of a Law «On Business Partnerships» of 2 May 1995, No. 2255. This act secured the legal opportunity for business entities to attract funds with the aim of creating and developing businesses by using the mechanism of issuing types of securities such as stocks (exclusively by joint-stock companies) and bonds (by joint stock companies as well as by limited liability partnerships).
- An Edict of the President of the Republic of Kazakhstan having the force of a Law «On the National Bank of the Republic of Kazakhstan» of 30 March 1995, No. 2155. Under this Edict, the National Bank of Kazakhstan is entitled to issue securities that are state securities and also therefor bears liability.
- An Edict of the President of the Republic of Kazakhstan having the force of a Law «On Banks and Banking Activity in the Republic of Kazakhstan» of 31 August 1995, No. 2444.This edict provides the issuance of shares by second-level banks; specifically referred to banking operations relating to securities transactions such as discounting the liabilities of natural persons and legal entities, safe operations relating to keeping of securities, the issuance of securities other than shares of stock (bonds, deposit certificates, promissory notes), and mediation in the securities market in the event of obtaining the relevant license.
- An Edict of the President of the Republic of Kazakhstan having the force of a Law «On Taxes and Other Compulsory Payments to the Budget» of 24 April 1995, No. 2235. (Later on this Edict has been re-named as the Law of the Republic of Kazakhstan «On Taxes and Other Compulsory Payments to the Budget» pursuant to the Law of the Republic of Kazakhstan No. 440 dated 16 July 1999). A number of articles in this Edict have been dedicated to the regulation of taxing securities transactions. In particular, the procedure and the amount of fees for the state registration of non-state securities issue as well as taxes payable on securities transactions are regulated. Currently, in accordance with amendments introduced in December 1997, the tax on securities transactions has been cancelled, although fees on registration of securities issues are still applicable.
- An Edict of the President Republic of Kazakhstan having the force of the Law «On Privatization» of 23 December 1995, No. 2721 recognizes that joint-stock companies' shares that are in state ownership are subject to privatization; the conditions and procedure for the privatization of state- owned shares are currently being established.
- An Edict of the President of the Republic of Kazakhstan having the force of the Law «On Licensing» of 17 April 1995, No. 2200. (Later this Edict has been re-named as the Law of the Republic of Kazakhstan «On Licensing» pursuant to the Law of the Republic of Kazakhstan No. 471 dated 8 October 1999). This legislation establishes that professional activities on the securities markets, the organizators of offers for securities (the stock exchange, the extra-exchange quotation system) as well as self- regulating organizations of professional participants of the securities markets are subjects to compulsory licensing.
On the basis of the above, a number of stock exchanges have been established and more respectable brokerage and dealer offices have appeared, currently participating in transactions with state packages of shares, as well as other types of state securities. In addition, the state registration of the shares of most joint-stock companies has taken place operating in Kazakhstan; a rather wide range of individuals have received qualification certificates as securities experts, and first registeried companies are now being established. There are already serious disputes (including judicial proceedings) as a result of activities on the securities market.
The stage of development of Kazakhstani securities legislation which we have examined so is, however, not complete. The process of forming the legal basis for the operation of the securities market in Kazakhstan goes on. The infrastructure of the market itself is now at the formation stage. In 1997- 1998, the legislation was amended and improved by the adoption of a number of crucial laws, among them:
- The Law «On Securities Market» of 5 March 1997. Actually, the concepts of this Law do not vary significantly from the concepts of the aforementioned Presidential Edict «On Securities and Stock Exchange» with the exception that the National Commission on Securities has been finally determined as a state directly subordinated body and reporting to the President of the Republic of Kazakhstan. So, legally speaking, the triple role of the State concerning the securities market has been recognized. With the adoption of the Law, the National Commission has an opportunity to exert legal influence on the Government and the National Bank of Kazakhstan with respect to the issuance and distribution of state securities and the investment of state funds in securities of other share issuers. Regretfully, in practice the National Commission has not yet implemented its mission in full, which it is justified more by political reasons than legal ones. Concerning all other aspects, the Law has basically improved the norms of previous existing legislation. Thus, investors are now classified more reasonably as individuals and institutional, the institution of nominal holding of securities has been introduced, stricter requirements for professional participants of the market (financial status, qualifications, disclosure of information on the activity thereof, compliance with the norms of business ethics) have been established, a definition of organized securities markets, uniting stock exchanges and extra-exchange quotation, and trading systems has been introduced, and the establishment of self- regulating organizations of professional participants in the securities markets has been regulated.
- The Law «On Registration of Securities Transactions in the Republic of Kazakhstan» of 5 March 1997 regulates the activities of nominal holders of securities - a specific category of brokers-dealers, custodians and the Central Depositary - as well as registrars with respect to maintenance of registers of holders of securities. The Law has determined the principles of nominal holding of securities and the registration of transactions with securities, and has also set forth the functions of nominal holders.
- The Law «On Investment Funds in the Republic of Kazakhstan» of 6 March 1997 regulates the issues of investment funds and the activities thereof as regards the investment of funds attracted from mass investors in the securities of specific categories of share issuers. Unfortunately, the actual situation in the economy of the Republic, some obstacles to the adoption of crucial Government decrees, and other factors have not allowed for the practical implementation of this Law in full. The main deterrents are uncertainty on the part of investors as regards the domestic market and the reliability of its infrastructure, as well as insufficient investment opportunities - reliable and profitable securities in which funds may be invested.
- The Law of the Republic of Kazakhstan «On Joint Stock Companies» of 10 July 1998 has repealed a number of Articles of the 1995 Presidential Edict «On Business Partnerships», insofar as they relate to joint-stock companies. The 1998 Law regulates (in more detail) issues Parlamenta of the establishment and activities of joint-stock companies, transactions concerning the shares of these companies, the criteria and conditions for large-scale transactions; it also determines the structure of corporate management and the procedure for the establishment of corporate bodies and thereof the adoption of resolutions. There are new provisions relating to the structure of charter capital and the registration of a company' s share issuance. In addition, although this Law is generally regarded as a very progressive one, some of its norms need improvement; this is especially true with regard to those provisions relating to the protection of shareholders' interests as a whole, and minority shareholders in particular. Issues such as providing for the founders' interests upon establishment of a company and the regulation of relations between shareholders are also in need of improvement. It is necessary to widen the classes of companies' shares in order to more adequately meet the various interests of shareholders and joint-stock companies as such, as well as to regulate in detail the issue of making, executing, and securing the implementation of shareholders' agreements as an instrument for determining the relations between the investors.
- There are some other legislative acts, among them the laws regulating specific aspects of the issuance and circulation of securities and the powers of the National Commission on Securities. For example, the Law «On Currency Regulation» of 24 December 1996, where the National Commission has been determined as the body responsible for currency regulation, establishes in particular the procedure by which foreign securities can have access to the domestic markets. The Law «On External Borrowing and Management of External Debt» of 10 April 1997 and then the 1999 Law «On State Borrowing and Debt and Borrowing and Debt Guaranteed by the State» which later repealed the previous one provide the state and non-state external borrowing in the form of issuing of debt securities, which allows, in particular, the Kazakhstani Government and large national banks and companies to enter the Euro-securities market.
It is necessary to mention, among others, the following normative legal acts:
- decrees of the Government of the Republic of Kazakhstan, under which a number of provisions regulating various aspects of the securities market in Kazakhstan have been adopted (for example, licensing and conducting professional activities);
- acts of the National Commission on Securities establishing the norms for conducting activities on the securities market. In particular, the National Commission - by virtue of the provisions of existing legislation - regulates the conditions and procedure for the state registration of share and bond issues, the distribution of issues, various aspects of the access of foreign share issuers' securities for circulation in domestic markets, the determination of qualification of experts, etc;
- acts of other central executive bodies on the issues of securities circulation. For example, acts of the Ministry of Finance of the Republic of Kazakhstan, enacted with respect to aspects of state securities issuance and circulation.
3. The Demand for the Development of a Legal Basis for Regulating Relations in the Securities Market in Kazakhstan
The development of legislation in the securities market in Kazakhstan is based on the following major needs of this market:
- Establishment of conditions stimulating the wish of business entities to issue securities for circulation. This is the macoeconomic aim that depends - to a great degree - on the general economic policy of the State leading investors, in turn, to feel sufficiently confident to invest their funds in securities and share issuers to have confidence in the strength of their business and the perspectives for its development.
- Improvement of the system for protecting the rights and legal interests of individuals investing their own funds in the securities of share issuers (that is, the investors). In addition to the achievement of macroeconomic aims, it is reasonable to establish a system for the insurance of private investors' contributions into securities, to secure and introduce a more effective system for informing investors concerning the status of the stock market, and to ensure the formation of an institution of investment advisors and some other measures.
- There is a necessity to develop a fluid system for regulating relations which are quickly developing on the securities markets. This is so to ensure the creation of the necessary conditions for effective regulation, including supervision, of professional activities on the securities market. It is also necessary to ensure the more rapid maturity of self-regulating organizations of professional participants in the securities markets in order for them to provide primary regulatory functions as regards to the securities markets, while the state will retain supervision, monitoring, and licensing functions.
(4) Practical activities (including the application of legislation) stipulate the necessity to implement the following basic measures targeted towards improving specific aspects of the legal basis of the securities market in Kazakhstan.
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How to stimulate share issuers to issue securities? The response to this question depends on the interest of the State in the role of the securities market in the formation and development of civilized market relations, and on the degree to which it has realized the possibility of creating a balanced system of correlation between banking and the securities market. This is of importance to be able to allow a redistribution of part of investment activity in order to react effectively and quickly to any «breaks» in the mechanism of crediting business activity, thereby hopefully avoiding serious economic crises. The existence of legislation relating to securities and joint- stock companies, the activities of the National Commission on Securities, and the approval of Governmental programs for the development of the securities market underline the intention of the Government to establish an effective and efficient infrastructure for the stock market in Kazakhstan. As long as the existence of the securities market is impossible without securities as such, it goes almost without saying that it is crucial to stimulate the issuance of shares and bonds of legal entities. The core of such stimulation rests on a differential approach to the provision of state registration as regards to issues of non-state securities. At first, it is necessary to establish stricter rules for the provision and publication of information on securities issuance intended for open distribution and compulsory publication of reports on the distribution of issue. On the other hand, it seems reasonable to establish clearly formed privileges for securities issues distributed by close method and shares of close joint-stock companies, as well as to foresee mechanisms of differential conditions for the participation of shareholders in the capital of companies, through the introduction of various classes of shares and the entering into shareholders' agreements.
The core factor supporting the interest in issuing securities is an opportunity to possibly completely distribute issued securities under conditions which are acceptable to the share issuer. In order to achieve this aim it is necessary to develop institutions of underwriters and distributors providing professional services as regards to distribution of issue, as well as to establish a well organized market where share issuers themselves can distribute significant volumes of issued securities among institutional investors (investment and pension funds, insurance companies, etc.).
The achievement of these purposes depends on the existence of relevant legal norms regulating specific aspects and the effectiveness of those measures undertaken by the Government and the National Commission on Securities with the aim of supporting share issuers.
The development of scientific-technical thought, as well as the development of relations on the Kazakhstani market require the utilization of new progressive forms of securities issuance, and an understanding of the differences in the circulation of various types of securities and the clashing interests of various state bodies regulating any aspects connected with securities. In this respect it is necessary to take measures to clarify the definition of securities, and the establishment of a correct - from a legal point of view - definition of dematerialized securities either as personal financial liability or as a form of confirmation of the share issuer's liabilities.
It is also crucial to separate, if we may say so, «individual» securities from securities that are the subject to mass issue (issuing securities). The former are securities that are issued under specific conditions (maturity, value, etc.) and with a specific basis for each of them. Here we have the commercial promissory notes, checks, bills of lading, mortgage certificates, etc., that circulate in monetary or commodity markets. Securities of the second category are shares, bonds of legal entities, treasury bills, state savings bonds, etc., issued in a series, distributed and circulating under conditions which are equal for each issue. Such separation is essential as long as a significant difference exists in the regulation of the issuance of different categories of securities, in particular concerning aspects of state registration, distribution, circulation spheres, etc.
Among issuing securities it is also necessary to specify corporate securities (shares and bonds of legal entities) issued in order to attract capital for the establishment and development of business and state securities issued and limited to domestic state debt for the settlement of economic, social and other aims of state importance. Here we need to distinguish securities of local executive bodies. The peculiarities of the issuance serve as the basis for such a classification. In addition, the legal allocation of the aforementioned categories will help in a clearer separation of the functions of the National Commission of the Republic of Kazakhstan on Securities, the National Bank of the Republic of Kazakhstan and the Government of the Republic of Kazakhstan concerning the regulation of securities circulation.
One more important factor forms the ground for the existence of securities market: the presence of investors - are entities that are ready to invest money in securities. The extent of such a readiness to invest will depend on an awareness on the part of investors of the reliability of these securities that is based on the liquidity and profitability of securities. As long as the free market supposes a freedom in decision making with respect to investment (or any other methods of protecting anybody's funds), legislation shall clearly stipulate the notion of the personal responsibility of the investor as regards to the investment decision taken, and that means that after the acquisition of securities the investor shall bear the risk of not attaining what he expected to get. But, anyway, the investor will get all the necessary information that will assist him in making a definite decision. At the same time, it is necessary to establish an effective system for protecting the investor's interests as we already have experience of individuals readily trusting idle and groundless promises of profit and the return of invested funds. Elements of the aforementioned system already exist in Kazakhstani practice, such as state registration of issues, the requirement of compulsory provision for the approval of a report on issue distribution, and the compulsory publication of the issue prospectus. However, this is not enough. More important measures in this direction must be the following:
- toughening the requirements with regards to share issuers on ensuring the access of investors to essential documents and first of all to issue a prospectus;
- establishment of a system for insuring contributions in securities, including an insurance fund established by investors and professional participants, mechanisms for the insurance of investments in securities, control over its implementation and an analysis of the reasons for a loss of contributions;
- improvement of the institution of nominal securities' holders, aimed at ensuring the professional execution of the orders of clients thereof with respect to securities transactions and safeguarding client's rights as regards to securities transferred for nominal holding, as well as to ensure the confidentiality of information on clients and securities;
- improvement of the process for the establishment and activities of institutional investors in the securities markets providing mediated investment activity of share issuers and increasing the degree of reliability of investment in securities by diversifying attracted funds.
The establishment of a mobile system for regulating the rapidly developing relations on the securities market consists of broadening the authority of the National Commission on Securities to issue normative legal acts concerning the regulation of relations in the domestic securities market. In addition, considering the necessity to ensure free market development it seems reasonable to accept the creation of so-called self-regulating organizations of professional participants of the securities markets. The main aim of this type of organization is that professionals can establish organized markets like the stock exchange and quotation systems of the extra-exchange securities market and thereby independently set rules for trade on these markets on the basis of legislation. Such a flexible system helps in reacting positively to the necessities of the market participants and ensures mobility in the regulation of bid procedures.
It seems to be logical for the development of self-regulating organizations, as well as the development and strengthening of the correlation thereof with the National Commission on Securities, to transfer the primary stage of licensing and control over the activities of professional traders and mediators on the securities markets to such self-regulating organizations themsleves, which will make the regulation of relevant relations more effective.
An important and essential step in the development of legislation concerning the securities market is an improvement in the legislative acts regulating the aspects of establishment and functioning of the infrastructure of this market. This is particularly so as regards to elements as securities depository, custodians, registrars, etc. All these elements in correlation with each other are aimed to implement the system of the so-called «internal» control of the securities market. Under such a system the elements in correlation with each other mutually control each other's activities and effectively prevent illegal behavior.
«External» control of the securities market is a state regulation and control by the National Commission on Securities and other state bodies (tax, judicial bodies, etc.). A correct determination of all these bodies' powers concerning the activities thereof as regards to the regulation of the securities market and its activities is essential. That means that the state, as far as the securities market is concerned, is presented as:
- the regulating body in the form of the National Commission on Securities in the capital markets and the National Bank on the monetary markets;
- the share issuer of state securities in the form of the Government and the National Bank;
- an investor acquiring, for example, states packages of shares.
As long as the state is presented in its different roles it cannot, as a participant on the securities market, regulate itself, because that would be unfair in relation to other participants. At the same time, the state equally needs to be protected with them. That is why the issue of support and development of the status of the National Commission on Securities which will ensure its independence from the Government and effectively allow it to regulate activity in the securities market and to protect the legal interests of its investors and other participants currently is still very important.
Печатается по: Maidan K. Suleimenov., Farkhad S. Karagoussov. The legal basis for the securities market in the Republic of Kazakhstan. // Review of Central and East European Law. 1998. Nos.5/6. P. 451-468.
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