6. Facilitating and encouraging foreign investment: Focus on regulatory barriers and competition
Respondents to the survey were largely committed to retaining or interested in potentially expanding their activities in Kazakhstan in spite of international political and economic turbulence. While positive assessment of survey respondents is welcome, the actual ability of the government to attract and retain foreign investment continues to be mitigated by regulatory barriers and competition issues.
Policies to support foreign investors were among those assessed most positively by survey respondents. Flagship projects such as the establishment of the Astana International Financial Centre and the creation of special economic zones were among the top three policies rated as very useful by respondents (Figure 6.1). A plurality of respondents also rated a range of other policies and reforms – from the creation of the Foreign Investors’ Council to investment promotion and facilitation services – as either very or somewhat useful. It is encouraging for the government, as it proceeds with its investment agenda, that policy interventions that have been explicitly designed to facilitate the entry and operation of foreign investors are being received positively by the business community.
On each of the indicators, only a small number of respondents reported that they were not useful. The survey results suggest that policy interventions have on the whole been generally well designed and targeted, easing to varying degrees the entry and operation of foreign firms in the country. In certain cases, respondents may not have benefited directly from policies captured by the indicator – for example, special economic zones or investment promotion services – but that they are nevertheless positively assessed indicates an awareness and appreciation within the business community of the positive impact of a broad array of policy interventions.
The policies captured in the survey reflect a concerted effort by the government to make it easier for foreign firms to do business in Kazakhstan. Creating an investor-friendly regulatory framework that allows foreign firms to contribute to the development of the local private sector and the economy more broadly has been a key ambition of the government for decades. In 2022, this ambition was reiterated through the new Investment Policy Concept of the Republic of Kazakhstan until 2026, which outlined a headline target of increasing the inflow of FDI to USD 25.5 billion by 2026 (the “Concept”) (Kazakh Invest, 2022[1]). At the core of the Concept was recognition of the need to increase investment in non-resource sectors of the economy. At first glance, the government’s policy framework appears to be speaking to the needs of the types of firms the country wants to target.
Nevertheless, two issues arise that could give cause for concern for the government. The first relates to the relative lack of progress in the broader de jure and de facto environment for business, as indicated in (Figure 6.1 b). Of 16 business-climate indicators included in the survey, 15% or more of respondents noted major progress in only four: digital infrastructure, access to new technology, business registration and licensing, and measures to eliminate corruption. It is equally clear that respondents see some kind of progress in each of these areas, but the extent to which this progress has significantly changed the perception of firms on a number of major considerations for doing business in Kazakhstan – for example, competition – appears to be limited.
The second point is that the impact of reforms to support foreign investors on actual investment flows will be limited if they are not accompanied by complementary pro-competition and pro-market reforms. A sub-indicator on competition policies highlights the importance of ensuring that simpler reforms, such as the simplification of licensing and permitting, are accompanied by pro-competition efforts. Respondents generally accept that the institutional framework for competition is adequate, but they are significantly less positive about individual aspects of competition policy and its implementation. Some 62% of respondents, for example, claim that the government’s control of market dominance and monopoly practices in the economy is weak, while around half report that the government’s efforts to combat cartels and market concentration (48% and 52% respectively) are poor.
Survey responses indicate that a two-speed reform process may be emerging. On the one hand, there has been significant progress in modernising the framework conditions necessary for the future competitiveness of the economy: more digital services, better access to technologies, better digital infrastructure. At the same time, there has been slower progress in addressing underlying and at times transversal business climate issues. As a result, there is a risk that laudable government efforts in certain areas will be undermined by a lack of progress in others.
The impediments to foreign investment may not be investment regulation itself, but the adjacent policy areas that shape the broader business climate. Kazakhstan has a relatively open statutory framework for FDI, but regulatory barriers to investment remain. Investment and trade in services, for example, is still highly regulated, while key network sectors of the economy remain under state control. This means that while a firm may face relatively few restrictions in entering a given sector, it may face a range of regulatory and competition-related issues once it enters the market. Many of these issues may in the first instance affect local firms, but they also make the practicalities of doing business in Kazakhstan more difficult for foreign firms.
Increasing the attractiveness of Kazakhstan for foreign investors is particularly important in the context of the green and digital transitions. Kazakhstan requires significant investment into many of the most restricted sectors of the economy – energy, electricity production, transport, telecommunications, infrastructure – in order for the private sector to navigate and benefit from the twin transitions of environmental sustainability and digitalisation. Rationalising the remaining barriers to investment in these sectors and addressing the adjacent policy issues that affect the general attractiveness of the business climate are therefore critical to the government’s long-term development ambitions.
The government has significantly liberalised its regulatory framework for foreign investment. Kazakhstan has removed a significant number of investment-related restrictions, and the majority of the economy is, de jure, open to FDI. Kazakhstan scores slightly better than the non-OECD average on the OECD FDI Regulatory Restrictiveness Index, though it is still almost twice as restrictive as the OECD average.
The government has developed a broadly sound legal framework for investment and has implemented series of reforms to foster investment and entrepreneurial activities. In the 2018-2022 National Investment Strategy, the government set out measures to improve the investment climate, privatisation plans and broader economic investment policy, with the aim of increasing total FDI inflows by 25% by 2022 (OECD, 2021[2]). In 2022, the government yet again updated its strategic policy aims for the investment climate through the Investment Policy Concept of the Republic of Kazakhstan until 2026, which replaced the percentage increase target of FDI inflows with a fixed sum of USD 25.5 billion by 2026.
A number of institutions and platforms have been created in recent years to ease the entry of foreign investors and to manage concerns that they raise more efficiently. In 2019, the government created the Co-ordination Council for Attracting Foreign Investment, of which the Prime Minister is the chair, with the council acting as an ombudsman for the investment community. The Investment Committee under the Ministry of Foreign Affairs and the investment promotion body Kazakh Invest, which operates under its aegis, manage investment policy issues and interface with potential and current investors; Kazakh Invest’s Investor Service Centres were considered very useful by 13% of respondents and somewhat useful by 57%. Relations with international organisations and global bodies such as the WTO are generally managed by the Ministry of National Economy and the Ministry of Trade and Integration. The Astana International Financial Center (AIFC) was established in 2018 with a aim of creating a major regional financial hub in Kazakhstan that could serve the broader Central Asia region.
Investment activity is regulated by the Entrepreneurial Code (the “EC”), introduced in 2016, which superseded the 2003 Law on Investments and a range of other business-related legislation. The EC provides businesses and investors with more detailed guarantees on protection of rights and property, particularly against expropriation and unlawful official conduct. It provides for increased consistency and transparency of the applicable rules, for the protection of different categories of investment, and for stability of contracts between investors and the state (OECD, 2021[2]).
Kazakhstan has also made it a legal requirement to put forward any proposed new laws or amendments for public consultation. The EC is supplemented by the Law on Legal Acts (Subsection 8 Para. 4. Art. 18), which stipulates that any legal amendments or drafts must be put forward for public discussion on an online portal before being submitted to the relevant government institutions for consideration and agreement (Republic of Kazakhstan, 2019[3]). The Foreign Investor Council (FIC), which operates as a high-level public-private dialogue platform, was established by the government to allow investor concerns to be quickly identified and addressed; the work of the FIC was considered very useful by 20% of respondents and somewhat useful by a further 50%.
Nevertheless, the extent to which information on legal requirements is readily available to firms and the extent to which public institutions are transparent in their business-related decision-making remain unclear. For instance, the FIC, the main consultation body for foreign investors, does not publicise the summaries and official documents of its working groups. In addition, information relating to sectoral restrictions for international investors is not freely available, and a lack of English-language information, despite the recent creation of an online portal, may act as an informal barrier for foreign investors.
6.2.1. Kazakhstan scores well in the OECD FDI Regulatory Restrictiveness Index
The OECD FDI Regulatory Restrictiveness Index measures statutory restrictions on foreign investment in a range of sectors. Statutory restrictions can cover a number of areas and generally determine the extent to which there are discriminatory measures that affect foreign investors, both in terms of market access and national treatment. These can include equity restrictions, investment screening, restrictions on hiring personnel, and operational restrictions (e.g., land ownership, capital repatriation, etc.). The index is not a systematic assessment of the investment climate, and there are a number of policy settings that may affect FDI attractiveness that are not captured by the indicator. Kazakhstan performs fairly well in the indicator, relative to both the OECD and non-OECD averages, and it is the second most open economy in Central Asia from a statutory point of view.
The OECD has found that countries with a relatively open regulatory regime tend to receive higher FDI inflows relative to GDP (Mistura and Roulet, 2019[4]). Yet, as demonstrated by Kazakhstan’s relatively strong performance in the indicator (Figure 6.2), regulatory openness to investment does not guarantee that investment will be forthcoming. Flows are affected by a wide range of other factors, including policy settings and the business climate, but also location, resource endowments, market access and market size.
Source: (OECD, 2023[5])
Some sectors nevertheless remain restricted, notably service sectors such as media, air transport, banking and insurance, and fixed telecommunications, although existing equity restrictions in air transport and fixed telecoms were removed in early 2016, partly as part of WTO accession (Fig. 6.2) (OECD, 2021[2]). The restrictions in these sectors also correspond to observations on state-ownership and control and restrictions on services trade in other OECD analyses, as discussed below. Foreign investors in resource sectors also face restrictions relating to the use of agricultural and forested land. While foreign land users are not entitled to own land, private ownership of land plots is permitted if related to business activities. Further reforms continue to take place in connection with WTO accession, including the 2020 reform that allowed foreign banks and insurance companies to establish branches in Kazakhstan (OECD, 2022[6]). Once these reforms are accomplished, Kazakhstan will be close to the OECD average in terms of restrictiveness. Foreign participation in privatisation is not restricted.
Source: (OECD, 2023[5])
Businesses still face burdensome conditions with regard to the employment of key foreign personnel, although this is also becoming simpler as a result of WTO accession. Kazakhstan’s visa policy has been seen by investors as presenting an unnecessary obstacle to investment, as specific conditions include labour market tests for foreign managers and specialists hired in Kazakhstan in the framework of intra-corporate transfer; limitations on the number of foreigners for each category of corporate employees; regulatory quotas for work permits; and preferential treatment of domestic suppliers in the subsoil sector (OECD, 2018[7]).
6.2.2. The government has addressed certain long-standing regulatory concerns, but regulatory issues nevertheless remain
This section introduces a selected number of regulatory problems that have a broad significance for the private sector in the context of diversification and decarbonisation. It draws attention to a number of improvements and challenges in the regulatory landscape for investors that are adjacent to investment policy.
The new Environmental Code provides greater clarity about firms’ environmental responsibilities
The government introduced a new Environmental Code in January 2021, which aimed to regulate activities of any individual of legal entity that could potentially have a negative impact on the environment, such as carbon emissions or other forms of pollution. The Environmental Code also supports the introduction of the best available techniques (BAT) in the country, bringing Kazakhstan’s regulatory framework for environmental management closer to OECD best practices. In the context of the ongoing push for decarbonisation, the Environmental Code provides needed clarity for firms in the oil and gas, mining and metallurgical, chemical and electric power industries, which are responsible for a large share of pollution in the country (IEA, 2022[8]).
The implementation of BAT mostly relies on a mix of financial and non-financial incentives. Under Article 127, fees can now be charged for emissions of pollutants into the air; non-compliance with BAT will trigger the imposition of fees that increase over time. Moreover, according to Article 111, an integrated environmental permit is necessary to use facilities with gross emissions of 1000 tons and more. In order to obtain such a permit, the enterprise needs to demonstrate the use of one or more BAT.
Responses to the survey indicate that firms are actively trying to green their operations. Almost half (48%) of respondents indicated that they had already applied technologies to reduce their emissions, while 42% were using technologies to improve their energy efficiency. In addition, 26% of respondents noted that they had begun to monitor their carbon footprints, with this a stipulation of the Environmental Code.
Uncertainty on legal issues relating to expropriation remain
The Entrepreneurial Code protects all investors are legally protected against direct expropriation (“nationalisation and requisition”). Art. 276 stipulates that investors can obtain damages as compensation for illegal government action or inaction. Assets can only be seized in exceptional cases, justified on specific grounds (mainly linked to national security) and with due compensation paid in full. Also, though the EC allows the state to nationalise or requisition property only in specified cases, it does not clearly define such cases, nor does it define the method for calculating compensation.
The law is less clear about cases of indirect expropriation where the investor still holds the property title but where government measures have an impact on the property that is considered tantamount to expropriation. The lack of clear statutory protections against indirect expropriation may lead to cases where regulatory changes create grounds for license or permit revocations, denying businesses recourse to compensation (OECD, n.d.[9]). In the case of environmental licensing, businesses have reported cases where violations arising from unexpected regulatory changes have been used as leverage in negotiations with the government (OECD, n.d.[9]).
Kazakhstan is a signatory to several international investment agreements (IIAs) which protect covered investors against expropriation without compensation and discrimination, and grant access to investor-state dispute settlement mechanisms (ISDS). Under Kazakh IIAs, the state may not expropriate except for public interest purposes, on a non-discriminatory basis, under due process of law and with prompt, adequate and effective compensation (the so-called Hull formula). Unlike the EC, Kazakh IIAs do explicitly cover indirect expropriation, although they do not clarify which regulatory changes would not amount to expropriation, such as for public safety, health and the environment. This ambiguity could leave Kazakhstan vulnerable to challenges by investors in the event that regulatory changes affect the profitability or viability of their operations.
Land ownership continues to be a regulatory challenge for certain foreign investors
Land in Kazakhstan is owned by the state but can be transferred, sold or leased to individuals or legal entities. Most leases are for 49 years, down from 99 years in early legislation. The Land Code adopted on 20 June 2003 (last amended in 2019) establishes the foundations, conditions and limits for modifying or terminating ownership of land and land-use rights, and describes the rights and responsibilities of landowners and land-users and regulates land relations. Land reform in Kazakhstan, as in some other parts of the former Soviet Union, has been a slow and at times difficult process, particularly concerning agricultural land.
Foreign nationals and legal entities (defined as those with majority foreign control) are allowed to own land for business related purposes (production or non-production facilities and land to service such facilities), but foreign ownership of agricultural and forest land is not, permitted. In order to reduce the share of unused land and enhance the better use of cultivated agricultural land, the government amended the 2003 Land Code in 2015 to allow foreign tenancy of land for up to 25 years (from 10 years previously) and the purchase of land for agricultural purposes by private residents. However, in 2016, the government adopted a five-year moratorium on application of the amendments due to public dissatisfaction with them; in 2021, this moratorium was then extended by another five years. Since 2018, work has been underway to revise the amendments and develop mechanisms to achieve their original aim, that is, to eliminate barriers to more effective agricultural land use.
In 2021, a new, much stricter law on land ownership was adopted. I provided for a total ban on the transfer and sale of agricultural land to foreign individuals and companies. The new legislation has nevertheless been accompanied with other measures that may improve transparency around land ownership in the country, with the government due to open the information stored on the state land cadastre to the public (Ageleuov, 2021[10]).
The right of the state to expropriate land applies only in circumstances set out in the Land Code. For instance, the state may expropriate land if it is being used contrary to its legal designation or in violation of the law, or where the state has an exceptional need for the land and where a compromise has been made between the state and the land user. Conflicts concerning land confiscation arise at the akimat level. The Land Code assumes that compensation can be either monetary or in-kind (equivalent land). In practice, akimats do not always offer equivalent land (OECD, 2021[2]).
While the overall regulatory framework for investment in Kazakhstan is relatively open, there are a number of restrictions on potential FDI that relate to services sectors. Many of restrictions that remain are in crucial service sectors necessary for the broader competitiveness of the economy. Obstacles to services trade are pervasive in many OECD and non-OECD economies, often due to the somewhat siloed nature of service-sector regulators, which can limit the ability to foresee or consider the impact of a regulation on other areas of the economy or the economy more broadly.
The OECD Services Trade Restrictiveness Index (STRI) provides additional insights into regulatory restrictions on trade and investment that may not be captured by the OECD FDI Regulatory Restrictiveness Index. The results of the STRI point to some of the challenges faced by investors in Kazakhstan, as well as testifying to the progress that the country has made liberalising the investment regime since WTO accession in 2015.
Overall, Kazakhstan can be seen to be more restrictive than the OECD average, and it is among the most restrictive of the 50 economies covered by the index (Figure 6.4). This score reflects, inter alia, work permitting issues for foreign nationals looking to provide short-term services, the maintenance of foreign investment screening mechanisms, limited access to public procurement for foreign service suppliers (albeit there are time-bound exceptions to this arrangement), and the above-mentioned restrictions on the acquisition of land and real estate by foreigners.
Source: (OECD, 2022[6])
Services trade restrictions have nevertheless been relaxed in recent years, likely in part due to the country’s WTO accession commitments. The highest levels of liberalisation can be seen in courier services (Figure 6.5), with the postal services sector now more open to competition following a reform in 2017 that abolished the natural monopoly regulation of the postal service. There has also been liberalisation in the insurance services sector, thanks to a 2018 decision that abolished a rule that required reinsurance companies to be incorporated in Kazakhstan. There has been liberalisation in many other service sectors, though of a smaller magnitude.
Source: (OECD, 2022[6])
The most heavily regulated service sectors in Kazakhstan are related to a number of areas where policy action could significantly improve the business climate for both domestic and international firms. For example, rail freight transport continues to be highly regulated, with the state having a total monopoly in this area. Significant barriers also exist in telecommunications and banking services (Figure 6.6), two areas where Kazakhstan requires significant investment if the private sector is to equip itself for the digital and green transitions.
Source: (OECD, 2022[6])
Levels of investment in telecommunications and the general quality of connectivity services are low, which may in part be attributable to a lack of competition in the sector. Kazakhstan has the fourth-most restricted telecommunications sector in the economies covered by the STRI database. Liberalisation of the telecommunications sector could help reduce barriers to investment in the digital and connectivity infrastructure necessary for the private sector to make the most of the digital transition.
Source: (OECD, 2022[6])
The OECD Indicators of Product Market Regulation (PMR) are another tool used by the OECD to assess the openness of an economy to investment. The PMR indicators focus more on competition. Kazakhstan is the only country in Central Asia included in the system of PMR indicators, with the last update being released in 2018. Taken together with Kazakhstan’s relatively open regulatory regime for FDI, the PMRs give an opportunity to begin to identify a number of transversal policy and regulatory issues – such as the role of the state in key network sectors, the governance of SOEs, and distortions due to state involvement that may affect product markets – that might affect the investment attractiveness of the country.
Economy-wide regulatory conditions are less conducive to competition than the OECD average, though the country does perform similarly – in some cases better than – other emerging market economies. Nevertheless, the high-level results mask significant differences in the underlying regulatory areas. Distortions that are induced by the involvement of the state in a number of business sectors are significant, considerably more so than in most OECD countries, while the country continues to have entry barriers for both domestic and international competitors that are higher than the OECD average, if lower than most emerging market economies.
The most significant issue highlighted by the PMRs, and which again speaks to issues raised by the survey, is the extent of public ownership in the economy and the level of direct public control over enterprises. This, together with weak governance of state-owned enterprises (SOEs), creates significant imbalances in the playing field that not only affects the attractiveness of the country for foreign investors and their ability to enter it, but also, and crucially, may impede the effective reallocation of resources within the economy due to the particular role of the state in network and finance sectors.
The high-level, economy-wide indicator for Kazakhstan suggests that the country’s overall product market regulation creates high barriers to competition, with this likely to have an impact on the general investment attractiveness of the economy. As detailed in Table 6.1 and discussed below, a key driver of the relatively weak performance in the OECD PMRs are issues relating to distortions to the playing field induced by state involvement in the economy. On these sub-indicators, Kazakhstan is significantly weaker than the OECD average, and more in line with other emerging-market economies such as Turkey and South Africa.
Source: (OECD, 2018[12])
The PMRs point to a number of issues relating to state involvement in the economy that may undermine the attractiveness of the economy and mitigate the potentially positive impact of its regulatory openness on potential investors’ decisions. The Distortions Induced by State Involvement sub-components of public ownership, simplification and evaluation of regulations, and involvement in business operations all point to areas where Kazakhstan could yet make significant progress. At the higher-level aggregate of these three sub-components, Kazakhstan emerges as the fourth most restrictive economy in the sample covered by the OECD (Figure 6.9 a). At the medium-level component of public ownership, the country is the second most restrictive in the (Figure 6.9 b).
Source: (OECD, 2018[12])
The state owns at least one company in the 16 main economic sectors out of 25 analysed in the questionnaire that is used to determine a country’s PMR score, including a number of firms in the manufacturing sectors and financial services ( Figure 6.10 a). The government holds equity stakes in the biggest company in most of the key network sectors (gas, electricity, rail, air and water transport), with a number of the dominant firms in network sectors fully-controlled by the government (Figure 6.10 b). Direct control of firms in the economy is extensive ( Figure 6.10 c), but particularly troublesome is the poor quality of governance of the country’s SOEs, where Kazakhstan has the lowest PMR score of the countries included in the indicator ( Figure 6.10 d).
The high competition-related barriers to operating in a range of economic sectors are likely to act as de facto barriers to entry. A foreign investor may legally have the right to enter a given sector or industry, but the pervasive involvement of the state is likely to mean that it will not be able to compete fairly. The PMRs therefore highlight the fact that below a strong de jure environment for foreign investment, transversal and at times structural issues with a material impact on the investment climate persist.
References
[10] Ageleuov, G. (2021), The significance of the land issue has not yet been realized by the authorities of Kazakhstan, Central Asian Bureau for Analytical Reporting, https://cabar.asia/en/the-significance-of-the-land-issue-has-not-yet-been-realized-by-the-authorities-of-kazakhstan.
[8] IEA (2022), Environmental Code of the Republic of Kazakhstan, No. 400-VI, IEA Publishing, Paris, https://www.iea.org/policies/12917-environmental-code-of-the-republic-of-kazakhstan-400-vi-as-amended.
[1] Kazakh Invest (2022), Government has Considered and Approved Draft of the Concept of the Investment Policy of the Republic of Kazakhstan until 2026, Government of Kazakhstan, Astana, https://invest.gov.kz/media-center/press-releases/novuyu-kontseptsiyu-investpolitiki-kazakhstana-do-2026-goda-utverdili-v-pravitelstve/.
[4] Mistura, F. and C. Roulet (2019), The determinants of Foreign Direct Investment: Do statutory restrictions matter?, OECD Working Papers on International Investment, OECD Publishing, Paris, https://www.oecd-ilibrary.org/docserver/641507ce-en.pdf?expires=1680263470&id=id&accname=ocid84004878&checksum=48B97299ACB63862176343291429BCFF.
[5] OECD (2023), OECD FDI Regulatory Restrictiveness Index, OECD Publishing, Paris, https://stats.oecd.org/Index.aspx?datasetcode=FDIINDEX.
[6] OECD (2022), Kazakhstan (2022), OECD Services Trade Restrictiveness Index (STRI), OECD Publishing, Paris, https://www.oecd.org/trade/topics/services-trade/documents/oecd-stri-country-note-kaz.pdf.
[2] OECD (2021), Improving the Legal Environment for Business and Investment in Central Asia, OECD Publishing, Paris, https://www.oecd.org/eurasia/Improving-LEB-CA-ENG%2020%20April.pdf.
[16] OECD (2019), “OECD FDI regulatory restrictiveness index (Edition 2019)”, OECD International Direct Investment Statistics (database), https://doi.org/10.1787/d22baa23-en (accessed on 25 April 2023).
[12] OECD (2018), OECD Indicators of Product Market Regulation, OECD Publishing, Paris, https://stats.oecd.org/Index.aspx?DataSetCode=PMR2018.
[7] OECD (2018), Reforming Kazakhstan: Progress, Challenges and Opportunities.
[11] OECD (2018), The Regulation of Goods and Services in Kazakhstan: An International Comparison in 2018, OECD Publishing, Paris, https://www.oecd.org/eurasia/countries/The-Regulation-of-Goods-and-Services-Markets-in-Kazakhstan.pdf.
[9] OECD (n.d.), OECD Investment Policy Reviews, OECD Publishing, Paris, https://doi.org/10.1787/19900910.
[13] Prime Minister Office of Kazakhstan (2019), Over 15 million public services rendered by Government for citizens in the first half of 2019, https://www.government.kz/en/news/press/bolee-15-mln-gosuslug-okazano-pravitelstvom-dlya-grazhdan-v-i-polugodii-2019-goda-a-ospanov.
[14] Republic of Kazakhstan (2020), State Corporation ‘Citizen Government’ Online One Stop Shop, https://egov.kz/cms/en/information/about/help-elektronnoe-pravitelstvo (accessed on 7 July 2020).
[3] Republic of Kazakhstan (2019), Law on Legal Acts, http://adilet.zan.kz/eng/docs/Z1600000480.
[15] World Bank (2019), Doing Business 2019, https://doi.org/10.1016/j.jebo.2017.07.011.