THE APPLICATION OF FOREIGN LAW IN AGREEMENTS ON THE ALIENATION OF PARTICIPATION INTERESTS (SHARES) OF COMPANIES AND IN CORPORATE AGREEMENTS

Abstract

The article deals with the possibility of applying foreign law to contracts for the sale of shares of companies established under the laws of Kazakhstan. At the same time, the possibility of applying foreign law to other agreements between participants (shareholders) of companies established under the laws of Kazakhstan is being considered.

At present, the prevailing point of view is the denial of the possibility of applying foreign law to such contracts. However, neither literal nor teleological analysis gives grounds for such a limitation. Literally reading paragraph 2 of Art. 1114 of the Civil Code, it can be concluded that if the relationship arises between the participants of the company, the applicable law should be the law of the country where the company was established. If the company is established in Kazakhstan, then the applicable law must be Kazakh law. But if the relationship is not formed between the participants, then the specified restriction on the mandatory application of the law of the country where the company is created does not apply.

Moreover, the principle of freedom of contract should allow the parties to agree in their corporate agreement on the application of foreign law in order to most effectively regulate their relationship.

At the same time, it is necessary to recognize the unreasonable currently limited operation of the principle of freedom of contract in private law relations in Kazakhstan. It is proposed to move away from this approach and eliminate the widespread, unjustified application of imperative norms. Thus, the presence of imperative norms in private law laws, which also include laws regulating the activities of companies, corporate entities, should be determined by the presence of interests that require special protection - public interests, the interests of weak participants in the turnover.