Kazakhstan’s Debut Nuclear Power Plant Project: A Test of Transparency, Legality, and Geopolitical Realities

It has now been officially confirmed by the Ministry of Energy of Kazakhstan that so-called negotiations under a process referred to by the Ministry as the "open competitive dialogue procedure" are underway with four shortlisted nuclear technology suppliers - China National Nuclear Corporation (China), Rosatom (Russia), Électricité de France (France), and Korea Hydro & Nuclear Power (South Korea) - for the selection of a contractor to construct independent Kazakhstan’s first nuclear power plant. According to the Ministry, the selected contractor will be a consortium, which raises significant questions about how such a consortium will be formed, particularly given the geopolitical sensitivities surrounding Rosatom, which is widely considered a toxic partner for Western entities. The selection process is expected to be finalized by July 2025, with the conclusion of an international treaty and related contracts for the construction of the nuclear power plant scheduled for November 2025.

However, a critical issue remains from the fact that Kazakh law, apparently, does not provide any legal basis for this so-called "open competitive dialogue procedure". Strictly speaking, since Kazakh law does not recognize such a procedure, neither the government nor any other entity currently has the legal authority to conduct it. Under current Kazakh legislation, particularly Section 4 of Article 12 of the Law of the Republic of Kazakhstan No. 442-V "On the Use of Atomic Energy", the design, construction, and commissioning of a nuclear power plant must be carried out in accordance with national laws. The most appropriate legal instrument for such a project appears to be an open tender conducted under the framework of the Public-Private Partnership (PPP) Law. Therefore, one may argue that Kazakh law explicitly requires the selection of a contractor for the nuclear power plant through an open tender under the PPP Law, not through an undefined and legally unrecognized process.

This raises serious concerns about the legality and transparency of the current approach. Specifically, it is unclear who within the Kazakh government authorized the use of this undefined procedure, on what legal grounds the four shortlisted companies were selected, and how the final contractor will be chosen for a project of such magnitude (estimated at $15 billion). This deviation from established legal procedures suggests either a lack of adherence to the rule of law or an intention to introduce the concept of an “open competitive dialogue procedure” retroactively, possibly through an ad hoc international treaty. Such a move would further entrench the problematic practice of implementing large infrastructure projects through tailor-made international agreements rather than within the transparent and universally applicable framework of national laws.

This approach undermines the whole legal system of Kazakhstan, in particular the principles of legal consistency, transparency, and fairness. By creating a patchwork of ad hoc legal regimes for individual projects through ad hoc international treaties, Kazakhstan already fragmented its legal system, leading to multiple and inconsistent legal orders with varying tax and regulatory regimes. This not only confuses foreign investors and domestic officials but also erodes trust in the country’s investment climate. The lack of a unified and predictable legal framework discourages reputable investors who prioritize transparency and equal opportunity, while favoring those who may benefit from opaque and discretionary arrangements. Such practices leads to perceptions of favoritism, cronyism, or even corruption, further damaging Kazakhstan’s reputation as a reliable destination for investment.

To address these concerns, Kazakhstan must abandon the use of undefined and legally unsupported procedures and legal instruments and ensure that all major infrastructure projects, including the construction of the nuclear power plant, are conducted within the framework of transparent and universally applicable national laws, such as the PPP Law. This would not only help restore confidence in Kazakhstan’s national legal system but also mitigate the significant political risks associated with the selection of a contractor for a nuclear power project. In the current geopolitical climate, where partnerships with entities like Rosatom may be viewed as politically sensitive or even unacceptable by Western counterparts, a transparent and legally grounded tender process is essential to ensure that the selection is based on technical and economic merits rather than geopolitical considerations.

Shaimerden Chikanayev currently on a study sabbatical until 2026, not an employee of GRATA International.