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Dr. Roza Nurgozhayeva

Roza Nurgozhayeva serves as Vice President-General Counsel at Nazarbayev University, Kazakhstan. From 2018 till 2020, Dr. Nurgozhayeva held the position of a Post-Doctoral Fellow at the Center for Asian Legal Studies, the National University of Singapore Faculty of Law. Before joining academia, Dr. Nurgozhayeva practiced law for more than seven years. She completed her bachelor’s degrees in law (cum laude) and economics in Kazakhstan and LL.M. at Cornell Law School. She holds a Doctor of the Science of Law (J.S.D.) degree from Cornell University. Her research interest includes comparative corporate law, corporate governance, state-owned enterprises, sustainable development, and comparative legal systems. Her recent article “Rule-Making, Rule-Taking or Rule-Rejecting under the Belt and Road Initiative: A Central Asian Perspective” was listed in the Best of 2020 Law Journals from Oxford University Press in the sub-category Comparative Law.

The evolution of Kazakhstan’s legal system and the principle of pacta sunt servanda

The emergence of the Kazakhstani legal system can be traced back to the Kazakh statehood’s foundation in the 15th century – the Kazakh Khanate. Back then, Sharia (Islamic law) and Adat (customary law) represented two primary sources of law. The latter was based on tribal codes of conduct and enforced by senior and highly respected community members (aqsaqals).

After Kazakh lands became part of the Russian Empire in the middle of the 18th century, Russian legal doctrines and norms began to assimilate the system introducing civil law and specifically German legal traditions and gradually replacing customary Kazakh institutions.

During the Soviet period, Kazakhstan was subject to the Soviet power exercised by Moscow. The Soviet regime eliminated any traces of imperial, customary, and Islamic laws. Soviet legal norms regulating commercial activities and contracts were only limited to very few state actors and sectors in which those contracts were expressly permitted. The Soviet state did not recognize private property and did not enforce the protection of private interests.

When Kazakhstan declared its sovereignty in 1991 and chose to move toward the market economy, it faced a legal vacuum. The country decided to remain within the civil law system initially transmitted from Russia. At the same time, it was open to transplant selected norms from the Anglo-American legal world. The economic transition called for rapid legislative changes, which created room for various inconsistencies and ambiguities in regulation as well as insecurity and distrust among market actors. It also required independent and professional judiciaries familiar with best practices.  

All those changes and challenges rooted in the past have shaped Kazakhstan’s modern laws.  They have largely formed an understanding of the law in general. The context has shaped attitudes towards contracts and the sense of obligations’ imperative. It has brought about the meaning and application of the concept pacta sunt servanda in the Kazakhstani contract law today.