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 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 the complex;
  • Due diligence;
  • Advice on the administration of contracts;
  • Legal support of claim procedures, pre-trial settlement of disputes, Dispute adjudication boards;
  • Litigation in the Republic of Kazakhstan courts and arbitration, also outside Kazakhstan;
  • Legal opinions on specific issues. 

What have we done:

  • Advising General Electric on the project of construction of wind power plants in Kazakhstan (with a 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 permits to construct 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 based on 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 the 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 more than USD 1 billion;
  • Legal support in the unique project of construction of co-working office in Almaty (Estate Management Company) with a total area of 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 greenfield construction firm. 

Property management

The complexity of local laws and the roman-german approach to the law system, in general, especially for foreign asset management companies, are often obstacles to the successful application of western practices and case studies. The problem is that there are just a small number of cases implemented in practice and 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 centres, 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 centres 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 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 some changes done, explanation of management options for the Bank of the owner of these assets; 
  • Shahnaz business centre in Astana Due Diligence (Marden – new name), as a property complex with all lease agreements, 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 complies 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 regarding 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, etc. 

Corporate law

The Artyushenko & Partners law firm provides legal support to foreign construction and development companies 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 licensing issues (identification of the category, and 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 issues.

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 companies from Korea, which has a 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 most extensive holdings of real estate owners in Kazakhstan checking its authority on several previously concluded transactions, the probability of prosecution, options for solving current issues;
  • Legal support of the acquisition of an office building in the centre of Almaty (with cost more than $100 million) by a foreign investment Fund. We represented the local owner. The transaction was structured by selling a share of a non-resident company holding a legal entity as the owner of a building in Kazakhstan. 

Litigation and arbitration

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

What we do:

  • Legal support in dispute resolution relating to the construction and/ or management of real estate (property);
  • Legal assistance 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 foreign English Law consultants for litigation and arbitration outside of Kazakhstan

What have we done:

  • Oil and gas dispute related to the facilities construction in Kazakhstan by a foreign contractor. We have participated as co-counsel. The amount of the conflict is more than $250 million ASD. Arbitration at Stockholm Chambers of Commerce, the rules of UNCITRAL;
  • We were providing an expert legal opinion on a corporate dispute in arbitration in Stockholm in favour of Kazakhstani citizens. The issue was related to the shareholders’ agreement in respect of the based in Kazakhstan legal entity. The amount of the dispute $20 million;
  • 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, as part of a possible arbitration in Abu Dhabi (the amount of the dispute is about us $200 million);
  • 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 based on 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 the 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 favour of subcontracting construction companies in Kazakhstan;
  • Representation of interests of contractors from Kazakhstan in arbitration. Representing the local counterparty against the structure of Lukoil group re the disputed amount of several million USD claim and contract termination;
  • Representing clients in the 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 favour of Russian company as part of debts The subject ship was in Caspian Aktau Seaport;
  • We have represented in local courts a famous trademark owner. The dispute was regarding unlawful using trademark and other attributes of the foreign brand (duly registered) due to the franchise agreement termination

Construction contracts FIDIC

Artyushenko & Partners law firm lawyers have accompanied more than 50 projects in Kazakhstan using FIDIC contracts and more than five projects in the CIS countries. 

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), residential complexes, multifunctional and complex projects;
  • Preparation of tender documentation for construction projects: for international donors using various professional forms, including FIDIC (EBRD, ADB, etc.); for Samruk-Kazyna projects; for private projects funded by other financial institutions;
  • Consulting on individual issues of application of FIDIC: Legal examination of concluded construction contracts and design based on FIDIC proforma, including turnkey construction; Preparation of claims, additional agreements and other legal documentation on projects implemented based on FIDIC proforma; Study and elaboration of individual situations/issues;
  • FIDIC Red Book (including MDB), Yellow Book, Orange Book, Silver Book, Golden Book, White Book adaptation to fit the legislation and a specific project;
  • Disputes on FIDIC based contracts, legal support: Litigation in local courts; International and local arbitration; Involvement of qualified international experts (civil engineers, solicitors or barristers, narrow specialists in the construction sector) to solve a particular problem; Work with the Dispute Adjudication Board as a consultant or a member of the DAB;
  • Educational training (in Russian or English languages) on construction and application of FIDIC terms in CIS countries: corporate training (1-3 days, online and offline), scheduled training.

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;
  • 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;
  • 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 seaport Aktau reconstruction under FIDIC Yellow Book (contract expertise and adaptation, etc.);
  • Legal examination of the contract on the Silver Book and tender documentation (for Samruk-Kazyna) for the gas field development project, as well as the construction of a gas pipeline in the West Kazakhstan region;
  • On behalf of Shalkiya Zinc, several contract agreements have been developed based on forms provided by the EBRD (FIDIC Red Book): Execution of mining, construction and installation works on mine facilities; For technological engineering (selection, supply and supervision of technological equipment with a technological guarantee) for the project – Industrial development of the Shalkiya polymetallic ore deposit in the Kyzylorda region with the construction of a processing plant with a capacity of 4 million tons of ore per year. The amount of financing is more than 100 million US dollars;

  • We have advised General Electric on a project to construct wind power plants in Kazakhstan (with a capacity of 50 megawatts).