Real estate construction (EPC and EPCM contracts)

The construction market has always been quite active in Kazakhstan. Having experience since 2006 with construction companies from the World TOP 100, we have accumulated considerable knowledge and experience.

Our lawyers and partners issued a book Legal guide “The process of construction in Kazakhstan: brief overview” in Russian and English languages, firms partner become as a coauthor, International Construction Contract Law 2nd edition (2018г, by Lukas Klee, Wiley Blackwell), our articles are published via IBA journals, Chartered Institution of Civil Engineering Surveyors journal.

What we do:

  • Legal support in negotiations;
  • Development legal support at the project design stage, aimed to find optimal solutions and achieve the ultimate goals;
  • Legal support for any civil construction, renovation and repairs;
  • Selecting the appropriate contract form (procurement and subcontracting), including EPC, EPCM, risk assessment (consulting, legal support) in the construction and design of industrial facilities, power plants, and infrastructure projects, and the building of complex and individual structures;
  • Legal expertise of contracts for construction, design, procurement and subcontracting;
  • Structuring and legal support of transactions on the purchase and sale of real estate (finished, unfinished one) both as individual objects and in complex;
  • Due diligence;
  • Advice on administration of contracts;
  • Legal support of claim procedures, pre-trial settlement of disputes, Dispute adjudication boards;
  • Litigation in the Republic of Kazakhstan courts and in arbitration, also outside Kazakhstan;
  • Legal opinions on specific issues.

What have we done:

  • Advising the General Electric on the project of construction of wind power plants in Kazakhstan (with capacity of 50 Megawatts), under EPC contract;
  • Preparation of a comprehensive list of approvals, permits and other documentation required for commissioning and operation of the Makinskaya poultry farm. The complex consists of a broiler plant, an incubator, a poultry processing plant with a capacity of up to 60 000 tons of meat products per year, a manure composting site and administrative buildings;
  • The Leroy Merlin chain of stores legal advising on permits for the construction of new retail parks in Kazakhstan (land, communications, networks, infrastructure, etc).
  • Legal expertise of the contract for the construction of part of the project Balkhash Power Plant, prepared on the basis of various FIDIC books (including EPC) representing the Siemens company;
  • Several legal memoranda’s development for Institute for Engineering and Information Technologies in Almaty (KazMunaiGaz structure) regarding project in Special economic zone Alatau Innovations Technology Park;
  • Legal support in the construction of the Almaty Financial District (bank buildings) and Esentai Park, worth of more than USD 1 billion;
  • Legal support in the unique project of construction of co-working office in Almaty (Estate Management Company) with total area more than 10 000 square meters (joint venture, rent, networking and separation of founder’s partnership relationships of risk-related project);
  • Legal support in wind power station construction (in west Kazakhstan) for Japan green field construction firm.

Property management

Complexity of local laws and the roman-german approach to law system, in general, especially for foreign asset management companies are often an obstacle to the successful application of western practices and case studies. The problem is not only that there are just a small number of cases implemented in practice, but also that the frequently changing rules of law require constant monitoring and adjustment of particular schemes.

What we do:

  • Choosing the form, and the structuring of transactions and ways to manage the facility/project (work with the developers, managers of shopping centers, office buildings and mixed-use facilities)
  • Legal support of developers and property owners
  • Renting of commercial property
  • Beneficial ownership
  • Development of contracts and agreements in the field of property management (renting of office premises of Class A and B, shopping centers and areas in them; the solving of issues related to peculiarities of management)
  • Updating the existing contracts (recommended at least once a year)
  • Due diligence
  • Legal support of claim procedures, pre-trial settlement of disputes;
  • Litigation in courts in Kazakhstan and in arbitration outside Kazakhstan;
  • Legal opinions on specific issues.

What have we done:

  • Due diligence on the acquisition of the international airport in the Republic of Kazakhstan (the study of judicial prospects, risk assessment, and recommendations on the project implementation);
  • Preparation and comprehensive legal support in addressing the management of the complex of residential buildings (with the cost over 200 million USD) in the city of Almaty for the management company;
  • Shared property structuring and registering (condominium in Kazakhstan) for a residential complex Esentai Park, later changes in the structure, registration of changes, explanation of management options for the Bank of the owner of these assets;
  • Shahnaz business center in Astana Due Diligence (Marden – new name), as a property complex with all lease agreements, in order to enter the investment transaction with one of the firm’s clients;
  • Jones Lang LaSalle legal support, engaged in the management of Talan Towers in Astana, checking the current contracts for the maintenance of various equipment, supply of equipment, repair work in the building, etc. All this in compliance with the corporate standards of the client;
  • Study of the issue and advising the developer of the residential complex on the merger of two land plots into one local condominium structure (shared property approach), registration and management of such property under certain conditions (prohibition of construction on the second site);
  • Participation in legal support for local developers in respect of hotel chains as Marriott International (Marriott and Ritz Carlton brands), Hilton Hotels, Starwood Hotels & Resorts in the market of the Republic of Kazakhstan. Work with a package of agreements specified networks, adaptation of license agreements to Kazakhstan, structuring relationships with property owners and etc

Corporate law

The Artyushenko & Partners law firm provides legal support to foreign construction and development companies that are interested in developing their business in the Republic of Kazakhstan.

What we do:

  • Corporate reorganization and restructuring
  • Development and planning of corporate structures
  • Advice on investment and divestment
  • Competitive regulation, market concentration
  • Licensing of construction & assembling works and design (in all categories and subtypes) and survey activities
  • Advising on issues of licensing (identification of the category, and the compliance with the qualification requirements, etc.)
  • Due diligence
  • Legal support of claim procedures;
  • Pre-trial settlement of disputes
  • Litigation in courts in Kazakhstan and arbitration outside of Kazakhstan;
  • Legal opinions on specific issue.

What have we done:

  • Dealing with issues of economic concentration of the development company (Antimonopoly regulation);
  • Representation interests of the Mospromstroy holding and Safmar group in Kazakhstan (corporate issues, renting relationships, disputes in courts);
  • Consulting the audit consulting big four companies on the subject of entry into Kazakhstan’s market the construction companies from China and Austria;
  • Legal support of design group from Portugal, the Saraiva+Associados in Kazakhstan on different issues (project documentation development, contractual relationships, corporate issues, debts collection, managing negotiations with complicated client);
  • Resolving the case for one of the electronics manufacturing company from Korea, which has production factory in Kazakhstan – searching different ways to resolve questions related to disputable real estate (land matters, architectural and town-planning matters);
  • Obtained the first category licenses to perform design and construction works, execution of research. The client was one of the world leaders in the sphere of construction of energy projects and power plants;
  • At the request of the Chairman, the management Board of one of the largest holdings of real estate owners in Kazakhstan checking its authority on a number of previously concluded transactions, the probability of prosecution, options for solving current issues;
  • Legal support of the acquisition of an office building in the center of Almaty (with cost more than $ 100 million USD) by a foreign investment Fund. We represented the local owner of the developer. The transaction was structured through the sale of a share of a non-resident company holding a legal entity as the owner of a building in Kazakhstan

Litigation and arbitration

Importantly, the sooner our company is involved in the legal proceeding, the more effective way we will use all remedies available in Kazakhstan's laws in favor of our client. Timely initiation of the legal proceeding will be your advantage only if you do it with the help of the consultant specializing on relevant issues. We have been working in the market of legal support for real estate and corporate matters from 2005.

What we do:

  • Legal support in dispute resolution relating to the construction and/or management of real estate (property);
  • Legal support in settlement of corporate disputes;
  • Pre-trial settlement of disputes
  • Claim procedures
  • Representation of interests in the state courts of any instance (first instance, appeal, cassation, the Supreme Court of the Republic of Kazakhstan)
  • Challenging government actions;
  • Representing interests in arbitration in Kazakhstan and outside of Kazakhstan
  • Representation in arbitration proceedings;
  • Provision of our experts as arbitrators in arbitrations (Kazakhstan International Arbitration (KIA), the International Commercial Arbitration Court of the Eurasian Center for Mediation (ICAC), and others);
  • Due diligence;
  • Legal opinions on specific issues
  • Searching/hiring the foreign English Law consultants for the litigation and arbitration outside of Kazakhstan

What have we done:

  • Participation in an oil and gas dispute related to the construction of facilities in Kazakhstan by a foreign contractor. The amount of the dispute is more than $250 million ASD. Arbitration at Stockholm Chambers of Commerce, the rules of UNCITRAL;
  • Providing an expert legal opinion on a corporate dispute in arbitration in Stockholm in favor of Kazakhstani citizen. The issue was related to the shareholders ‘ agreement in respect of the based in Kazakhstan legal entity. The amount of the dispute $20 million USD;
  • Providing expert legal opinion on the construction contract (FIDIC) in arbitration in London (LCIA). The case was related to the acceptance of the results of the work, quality and other issues based on the Kazakh legislation;
  • Advising Arabtec Consolidated Contractors on an EPC contracts (FIDIC) project in Kazakhstan worth more than us $1 billion USD, as part of a possible arbitration in Abu Dhabi (the amount of the dispute is about us $ 200 million USD);
  • Representing the Italian construction company engaged in road construction, in the proceeding against the contractor who precluded the enforcement of the bank guarantee for the total amount of over $2.5 million;
  • Representing the Client in court in the proceeding against JSC International Airport Astana in all Republic of Kazakhstan court instances including the Supreme Court, under the contract on the basis of public procurement;
  • Claim settlement and litigation against the contractor Enka Insaat (Turkey). The claim amounts were about $30 million;
  • Providing expert commentary while settlement of dispute in construction of pilot uranium production by leaching procedure on the part of Inkai field;
  • General contractor (large Kazakhstani holding company) debts collection under the contracts in favor of subcontracting construction companies in Kazakhstan;
  • Representation interests of contractor from Kazakhstan in arbitration. Representing the local counter party against the structure of Lukoil group re the dispute amount of several million USD claim and contract termination;
  • Representing clients in Supreme Court of the Republic of Kazakhstan on the issues related to construction (FIDIC as well), property rights, debts collection, public procurement, etc.;
  • Marine claim in favor of Russian company as part of debts The subject ship was in Caspian Aktau Sea port;
  • Representation in court in Kazakhstan interests of famous trademark’s owner on the issue of unlawful using trademark and other attributes of foreign trademark (duly registered) as a result of the franchise agreement termination. Obtaining preliminary prohibition of using trademark before judgement;

Construction contracts FIDIC

Artyushenko & Partners law firm lawyers were the first in Kazakhstan, who completed the full course in Russian Federation of enhanced training in practicing and application of FIDIC forms in CIS countries. Most international development banks provide the financing for the construction projects in CIS countries only if these FIDIC standard forms are applied.

The Artyushenko & Partners law firm aim is to ensure the smooth progress of a construction project of any complexity, and its timely implementation without any unforeseen legal risks.

Having accumulated a certain amount of experience, we are open for sharing such experience, making trainings in the Kazakhstan and CIS countries, publish various thematic materials. For example, Andrey Artyushenko become a co-author of the second edition of International Construction Contract Law (by Lukas Lee, Wiley Blackwell), where he explains the features of the use of FIDIC books in our country.

What we do:

  • FIDIC book selection for various construction projects: infrastructure, commercial facilities, industrial, energy, linear structures (gas pipelines, heating pipelines and etc);
  • FIDIC Red Book (including MDB), Yellow Book, Orange Book, Silver Book, White Book adaptation to fit the legislation and a specific project;
  • Legal expertise of the signed construction and design contracts on the basis of the FIDIC forms, including the EPC (turkey) construction;
  • Consulting re issues connected to FIDIC contracts application;
  • Educational trainings (in Russian or English languages) on construction and application of FIDIC terms in CIS countries; • Preparation of claims, additional agreements and other legal documentation for projects implemented based on FIDIC contracts;
  • Local litigation;
  • International and local arbitration.
  • Joint work with qualified international experts (construction engineers, solicitors and barristers) for different issues resolving;
  • Dispute adjudication boards, participation as a member of the DAB or as a consultant.

What have we done:

  • Legal support of one of the set contracts based on Red Book FIDIC for the International transit corridor Western Europe – Western China, worth more than $ 70 million USD for Italian company;
  • Advising one of the big four companies on construction in Kazakhstan – turnkey, EPC and FIDIC (obtaining licenses, choosing the right contracting structure, forms adaptation and etc);
  • Participation in the consortium together with WSP engineering company on the project Toll roads in Kazakhstan for the European Bank for Reconstruction and Development (FIDIC Gold Book development);
  • Abu Dhabi Plaza Astana project. FIDIC related issues consultation for suppliers and contractors: pre-trial and claims under construction contracts, equipment and materials supply;
  • Advising the state holding Samruk-Kazyna Real-Estate on the application of FIDIC forms in the Republic of Kazakhstan in the construction of residential property within the framework of state programs;
  • Legal expertise of the contract for the construction of part of the project “Balkhash Power Plant”, prepared on the basis of various FIDIC books representing the Siemens;
  • We have provided comments to the potential contractor from India on sea port Aktau reconstruction under FIDIC Yellow Book (contract expertise and adaptation, etc.);
  • FIDIC based contracts consulting for the state owned company. The Client is intend to finance some infrastructure projects in Kazakhstan based on state program (housing for Kazakhstan citizens) with implementing FIDIC approach;