4. The consent of local representative and executive government bodies shall not be required for establishment of a bank or a bank branch or representative office on the territory of the Republic of Kazakhstan.
5. Consent to open a bank branch shall be denied on any of the following grounds:
a) candidates for the positions of senior manager and chief accountant of the bank branch fail to meet the minimum requirements set by item 3, Article 19 and items 3–5, Article 20 of this Law;
b) the bank branch’s premises and equipment fail to meet standard requirements of the authorized agency;
c) the bank has violated prudential standards and (or) other binding norms and limits set by the authorized agency;
d) current legislation and regulatory legal acts of the authorized agency have been violated.
5-1. When amendments and additions are made to a statute on a bank branch, the bank must notify the authorized agency to this effect within 14 calendar days of the date the relevant decision is adopted.
6. A bank representative office shall mean a bank subdivision that is not a juridical person and is located at a site other than the bank’s location, acts in the name of and on instructions from the bank, and does not carry out banking operations.
6-1. A resident bank of the Republic of Kazakhstan shall have the right to file an application with the authorized agency to open a representative office outside the Republic of Kazakhstan provided that it has a stable financial position and has been in compliance with prudential standards and other binding norms and limits for three successive months preceding the filing of the application to open a representative office.
The following documents must be attached to an application for consent to open a representative office of a resident bank of the Republic of Kazakhstan:
1) the decision by the bank’s administrative body authorized to make a decision regarding the opening of a representative office;
2) a statute on the representative office certified by the bank, in triplicate;
3) information about the senior manager of the representative office in accordance with the requirements of regulatory legal acts of the authorized agency.
The issue of consenting to the opening of a representative office by a resident bank of the Republic of Kazakhstan must be considered by the authorized agency within three months.
Consent for the opening of a representative office by a resident bank of the Republic of Kazakhstan shall be denied on any of the following grounds:
1) the bank’s financial condition is unstable;
2) the bank has violated prudential standards and (or) other binding norms and limits for six successive months preceding the filing of the application to open a representative office;
3) limited enforcement measures and sanctions provided for by this Law are in effect against the bank.
4) one of the documents provided for under this item has not been submitted.
7. The following documents must be attached to an application for consent to open a representative office of a nonresident bank of the Republic of Kazakhstan:
a) the applicant bank’s charter documents;
b) the decision of the applicant bank’s appropriate body to open a representative office on the territory of the Republic of Kazakhstan;
c) written confirmation from the home country’s banking supervision body that the applicant bank has a valid banking license;
d) a duly prepared annual report of the applicant bank (including the consolidated balance sheet and the profit and loss statement) for the last fiscal (operating) year, certified by an auditing firm meeting the requirements of item 4, Article 19 of this Law;
e) written notification from the home country’s banking supervision body that it has no objections to the opening of a representative office of the applicant bank on the territory of the Republic of Kazakhstan, or a statement from the banking supervision body or an authoritative legal service of the home country that legislation of the applicant bank’s home country does not require such permission;
f) information on the proposed number of employees of the representative office and on its manager.
The issue of consenting to the opening of a representative office by a nonresident bank of the Republic of Kazakhstan must be considered by the authorized agency within three months.
Consent for the opening of a representative office by a nonresident bank of the Republic of Kazakhstan shall be denied if the bank fails to submit any of the documents provided for under this item.
7-1. A bank cash settlement department (savings bank) shall be a geographically separate subdivision of a bank that is established on the basis of the authorized agency’s consent, is not a juridical person, does not have the status of a branch or representative office, and performs certain types of banking operations on the territory of the Republic of Kazakhstan.
8. Bank branches and representative offices shall be closed according to the procedure established by current legislation.
Cash settlement departments (savings banks) shall be opened and closed in accordance with current banking legislation.
Changes in registration information occurring when a bank branch is closed shall be brought to the attention of judicial authorities following prior approval by the authorized agency.
Following the registration of a branch and representative office with judicial authorities, a bank shall be required within 14 days to submit to the authorized agency a notarized copy of the statute on the branch or representative office bearing a notation and seal of the judicial authority that performed the registration.
Chapter 3. Performance of Banking Activity
Article 30. Banking
1. Banking shall mean the performance of banking operations as well as other operations by banks and institutions performing certain types of banking operations as established by this article.
2. Banking operations shall include:
a) the acceptance of deposits from juridical persons, and the opening and maintenance of bank accounts for them;
b) the acceptance of deposits from natural persons, and the opening and maintenance of bank accounts for them;
c) the opening and maintenance of correspondent accounts for banks and institutions performing certain types of banking operations;
c-1) the opening and maintenance of metal accounts for natural and juridical persons, which are used to record the physical quantity of refined precious metals belonging to the given person;
d) cash operations: accepting, issuing, converting, changing, exchanging, sorting, packing, and storing bank notes and coins;
e) transfer operations: fulfilling instructions of juridical and natural persons to transfer money;
f) discounting operations: negotiating (discounting) bills of exchange and other debt obligations of juridical and natural persons;
g) loan operations: granting credits in monetary form, on the condition that they be repaid with interest within a specified period of time;
h) effecting settlements on instructions from natural and juridical persons, including correspondent banks, from their bank accounts;
i) fiduciary operations: managing money, rights of claim on mortgage loans, and refined precious metals in the interests of and on instructions from a trustee;
j) interbank clearing operations: collecting, verifying, sorting, and confirming payments, mutually netting of the latter, and determining the net positions of clearing participants that are banks and institutions performing certain types of banking operations;
k) safe operations: services involved in the safekeeping of securities issued in documentary form, documents, and valuables of customers, including the rental of safe deposit boxes, safes, and premises;
l) lombard operations: granting short-term credits backed by a pledge of deposited, readily negotiable securities and other personal property;
m) issuing payment cards;
n) collecting and remitting bank notes, coins, and valuables;
o) organizing exchange operations with foreign currency;
p) accepting payment documents (except bills of exchange) for collection;
q) issuing check books;
r) omitted;
s) opening (granting) and confirmation of a letter of credit and fulfillment of obligations under a letter of credit;
t) issuing bank guarantees that provide for execution in monetary form;
u) issuing bank sureties and other obligations on behalf of third parties that provide for execution in monetary form.
2-1. Banking operations shall not include business involving the granting of microcredits by juridical persons registered as microcredit organizations following the procedure established by the legislation of the Republic of Kazakhstan.
2-2. Banking operations listed under item 2 of this article may be performed electronically following the procedure established by the National Bank.
2-3. Licenses to perform the operations referred to under subitems a), b), c), c-1), d), e), f), g), h), i), l), p), q), s), t), and u) of item 2 of this article shall be issued to banks and credit unions by the authorized agency.
Licenses to perform the operations referred to under subitems j), k), m), n), and o) of item 2 of this article shall be issued by the authorized agency provided that a positive opinion has been rendered by the National Bank.
Licenses to perform the operations referred to under subitems j), k), m), n), and o) of item 2 of this article shall be issued by the National Bank to institutions performing certain types of banking operations.
3. In addition those operations listed in item 2 of this article, banks and institutions performing certain types of banking operations shall have the right to perform the following operations with a license from the authorized agency:
a) purchasing, accepting as collateral, accounting for, storing, and selling refined precious metals (gold, silver, platinum, metals of the platinum group) in ingots, and coins made from precious metals;
b) purchasing, accepting as collateral, accounting for, storing, and selling jewelry containing precious metals and precious stones;
c) operations with bills of exchange: accepting bills of exchange for collection, providing services involving payment on a bill of exchange by the payer, payment of domiciled bills of exchange, and accepting bills of exchange as an agent;
e) [sic] leasing activity;
f) issuing their own securities (except stocks);
g) factoring operations: acquiring the rights to demand payment from a purchaser of goods (work, services) and accepting the risk of nonpayment;
h) forfaiting operations (forfaiting): paying off the debt obligation of a purchaser of goods (work, services) by purchasing a bill of exchange without recourse against the seller.
4. Banks shall have the right to engage in the following types of professional activity in the securities market:
a) brokerage activity – with government securities of the Republic of Kazakhstan and countries with a minimum required rating from one of the rating agencies or without such a rating based on a decision of the National Bank of the Republic of Kazakhstan, with derivative securities, the underlying asset of which is foreign currency and (or) bonds that may be purchased by second-tier banks following the established procedure;
b) dealer activity – with government securities of the Republic of Kazakhstan and countries with a minimum required rating from one of the rating agencies or without such a rating based on a decision of the National Bank of the Republic of Kazakhstan, and also with derivative securities, the underlying asset of which is foreign currency and (or) bonds that may be purchased by second-tier banks following the established procedure, and with other securities in those cases established under item 2, Article 8 of this Law;
b-1) management of securities;
c) custodial activity;
d) omitted.
Licenses allowing banks to carry out one or several compatible professional activities in the securities market among those listed above shall be issued by the authorized agency.
A list of rating agencies and the minimum required rating shall be established by the National Bank of the Republic of Kazakhstan.
5. Regulatory legal acts of the authorized agency or the National Bank may set additional requirements for banks and institutions performing certain types of banking operations related to their acquisition of licenses for certain types of activity, and also for banks and institutions performing certain types of banking operations participating in the authorized capital of institutions in accordance with this Law.
6. Only banks that are participants in the mandatory group guarantee (insurance) system for personal deposits and the National Postal Operator shall have the right to perform banking operations referred to under subitem b) of item 2 of this article.
Article 31. General Requirements for Operations Performed by Banks
1. Banks shall have the right to engage in banking only if regulations defining the general conditions for performing operations and internal regulations are in place.
2. Regulations governing the general conditions for performing operations must be approved by the bank’s board of directors (by the general meeting of stockholders of a closed company lacking this body), and they must contain the following information and procedures:
a) the limits on the amounts and terms of deposits accepted and credits granted;
b) the limits on remuneration (interest) rates on deposits and credits;
c) the conditions for payment of remuneration (interest) on deposits and credits;
d) the requirements for security accepted by the bank;
e) rates and tariffs charged for banking operations;
f) the rights and responsibilities of the bank and its customers, and their liability;
g) other conditions, requirements, and restrictions which the bank’s board of directors (the general meeting of stockholders of a closed company lacking this body) feels it necessary to include in the general conditions for performing operations.
3. The bank’s internal regulations must define:
a) the structure, objectives, functions, and powers of the bank’s subdivisions;
b) the structure, objectives, functions, and powers of the internal auditing service, the credit committee, and other permanent bodies;
c) the rights and responsibilities of the managers of structural subdivisions;
d) the powers of bank officials and employees to carry out transactions in its name and on its account.
Article 32. A Bank’s Responsibility to Disclose the General Conditions
for Performing Operations
1. The general conditions for performing operations shall be public information, and they may not be treated as commercial or banking secrets.
This rule shall not extend to the conditions for performing a specific operation defined by this Law as a banking secret, or defined by the bank in accordance with current legislation as a commercial secret.
2. Banks shall be required to present their regulations on the general conditions for performing operations upon a customer’s first request.
3. Banks shall not have the right to refuse to provide information to a customer regarding the possible risks associated with the performance of an operation.
Article 33. The Contractual Nature of Relations Between Bank and Customer
1. Relations between banks and between banks and their customers shall be based on contracts, unless otherwise provided by the legislation of the Republic of Kazakhstan.
2. Bank customers shall have the right to open bank accounts at other banks on the condition that a creditor bank is notified, unless otherwise provided by the legislation of the Republic of Kazakhstan.
Article 34. The Loan Operation
1. A loan operation shall mean the granting of money by a bank or institution performing certain types of banking operations to other persons on the condition that it be repaid with interest within a specified period of time.
2. The loan operations of a bank shall be carried out in accordance with its internal credit policy regulations, as approved by the bank’s board of directors (by the general meeting of stockholders of a closed company lacking this body).
3. The bank’s credit committee shall be the body that implements the internal credit policy.
4. Internal credit policy regulations shall be designed with the aim of reducing the risk of loan operations, and they shall define:
a) the conditions for granting credits to juridical and natural persons;
b) the conditions for granting credits to the bank’s officials and employees;
c) the organizational structure, functions, and powers of the credit committee;
d) the liability of credit committee members;
e) lending limits;
f) the credit agreement approval procedure.
5. The rules established under items 2–4 of this article shall extend to the guarantee and surety operations of banks.
Article 35. Security for Credits
1. Credits may be secured by a forfeit, a pledge, a guarantee, a surety, and other means provided for by the legislation or an agreement.
2. If a customer’s creditworthiness and reliability are high, the bank shall have the right to grant unsecured credit (blank credit).
A bank shall not have the right to issue blank credit to a single borrower or to accept an unsecured contingent liability in a total amount exceeding the average annual value of this borrower’s assets minus the amount of the borrowed funds received by this borrower from banks and institutions performing certain types of banking operations. The average annual value of the borrower’s assets shall be calculated for the period from the start of the reporting year to the date the given credit is received.
3. In those cases provided for under a pledge agreement, and also under legislative acts, a bank shall have the right independently to sell pledged property through a compulsory out-of-court procedure by holding an auction.
4. The rules established under items 1–3 of this article shall extend to security for the guarantee and surety operations of banks.
Article 36. Measures Taken Against an Insolvent Borrower
A creditor bank shall have the right to take the following actions against a borrower who fails to perform his obligations under a credit agreement:
to decline to grant new credits;
to take collection action against money in any of the borrower’s accounts without the borrower’s consent (if so stipulated in the credit agreement);
to file a petition with the courts to declare an insolvent borrower bankrupt in accordance with the legislation of the Republic of Kazakhstan.
Article 37. Statute of Limitations
The statute of limitations shall not apply to the claims of banks against borrowers for unsatisfactory performance under credit agreements.
Article 38. Performance of Payments and Money Transfers
1. Banks shall effect payments and money transfers on the territory of the Republic of Kazakhstan according to the procedures established by the legislation.
2. In the event of the improper performance of payments and money transfers, a bank shall bear liability in accordance with the legislation of the Republic of Kazakhstan and the agreement concluded with the customer (depositor).
3. International payments and money transfers shall be made by banks in forms, by means, and according to the procedure employed in international banking practice provided that they are consistent with the current legislation of the Republic of Kazakhstan.
4. A bank shall have the right to seize money from the accounts of customers (depositors) without their consent if it has documents confirming the forgery of payment documents, and also if it is established that the money was posted to their accounts in error.
Article 39. Rates and Tariffs
Remuneration (interest) and commission rates and tariffs for banking services shall be set by banks independently.
Article 40. Prohibition on Granting Favorable Terms to Bank Insiders
1. Banks shall be prohibited from granting favorable terms to bank insiders.
2. Granting favorable terms shall mean:
entering into a transaction with an insider or in an insider’s interests that the bank would not enter into with customers who are not insiders because of the nature of the transaction, its objectives, specific features, and risk;
collecting remuneration (interest) and charges for banking operations or accepting security below what is required of other customers.
A bank may not make loans without security (blank loans) to insiders.
3. Bank insiders shall mean:
a) any official or manager of the particular bank, as well as their spouses and close relatives;
b) a natural or a juridical person that is a principal partner of the particular bank, or an official of a principal partner of the bank, as well as their spouses and close relatives;
c) a juridical person of which persons referred to in subitems a) and b) of this item are principal partners;
d) a juridical person of which the bank is a principal partner, officials of this juridical person, and their spouses and close relatives.
3-1. A bank may not enter into a transaction with any person for the purpose of allowing said person:
to meet an obligation to a person who is a bank insider;
to purchase any sort of property from a person who is a bank insider;
to acquire securities issued by a person who is a bank insider;
4. A principal partner of a juridical person shall mean a person who directly or indirectly holds more than 10 percent of the voting stock (contributions of partners) of this juridical person, with the exception of cases in which the state holds these stocks.
5. A person who is an insider in one of a group of interrelated juridical persons shall be recognized as an insider of each of them.
6. Two or more juridical persons shall be recognized as a group of interrelated juridical persons if at least one of them is a principal partner of another.
7. A transaction with a bank insider may be effected only by decision of the bank’s board of directors, taking into account the requirements of item 1 of this article. The waiver of rights of claim with respect to assets provided to (obtained from) bank insiders shall be carried out with subsequent notification of the general stockholders’ meeting.
A bank manager must not participate in the consideration and adoption of decisions on any transaction between the bank and:
himself;
any of his close relatives;
any juridical person of which he or any of his close relatives is an official or principal partner.
A decision by the board of directors regarding any transaction between a bank and a bank insider may be adopted only after the board of director has reviewed all of its conditions.
8. A bank shall be required to furnish to the authorized agency information about all transactions with insiders, following the forms provided for by regulatory legal acts of the authorized agency.
Chapter 4. Regulation of the Activities of Banks and
Protection of the Interests of Depositors
Article 41. Measures Taken Against Banks and Their Officials. Bank Regulation
Methods
In order to ensure the financial stability of banks, protect the interests of their depositors, and also to maintain the stability of the monetary system of the Republic of Kazakhstan, the authorized agency shall regulate the activity of banks, including by:
establishing prudential standards and other norms and limits binding upon banks, including norms regarding reserve requirements and provisions against doubtful and bad assets;
publishing regulatory legal acts that are binding upon banks;
inspecting (examining) the activity of banks;
issuing recommendations on rehabilitation of the financial position of a bank;
applying limited enforcement measures against banks;
imposing sanctions against banks or their officials.
Regulation of the activities of banks shall be carried out both with respect to an individual bank and on a consolidated basis, that is, with respect to a banking *****les for consolidated supervision shall be established by the authorized agency.
Article 42. Prudential Standards and Other Binding Norms and Limits
1. Prudential standards set by the authorized agency to be binding upon banks shall include:
the minimum amount of the bank’s authorized capital;
the capital adequacy ratio;
the maximum risk per borrower;
the liquidity ratio;
open foreign exchange position limits.
Prudential standards set by the authorized agency to be binding upon banking groups shall include:
the minimum amount of authorized capital;
the capital adequacy ratio;
the maximum risk per borrower;
The authorized agency shall have the right to set additional prudential standards and other binding norms and limits used in international banking practice.
The authorized agency shall take measures to hold banks and (or) bank holding companies or their officials liable in accordance with the banking legislation for a bank’s violation of prudential standards and (or) other binding norms and limits.
2. In order to address the question of whether a bank’s financial position is in compliance with the requirements imposed, the authorized agency shall have the right to determine the amount of a bank’s capital as of a particular date.
3. Standard values and the methods for calculating prudential standards, other binding norms and limits, and the amount of capital of a bank or banking group as of a particular date, the procedure for calculating the open foreign exchange position and its limits, norms for reserve requirements, the method for observing them and the procedure for calculating them, the appropriate reporting forms, and the reporting dates shall be set by the authorized agency.
4. In the event that a bank violates the capital adequacy ratios established by regulatory legal acts of the authorized agency, a bank must send a recapitalization plan to the authorized agency. The plan must be presented within one month of the day the capital adequacy ratio is violated, accompanied by a detailed description of the measures and timetable for elimination of the violations.
5. Bank holding companies must take measures provided for by regulatory legal acts of the authorized agency to maintain the capital adequacy ratios of the banking group.
Article 43. Reserve Capital and Provisions (Reserves) Against Doubtful
and Bad Assets
1. Banks shall be required to form reserve capital to cover banking losses. Reserve capital shall be created out of the net income of banks, prior to payment of dividends on common stocks. The minimum amount of a bank’s reserve capital shall be set by the authorized agency.
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