News and Insights
13 June 2024
Overview
The Law of the Republic of Tajikistan on Personal Data Protection (the Law on DP) has been in force since 2018 but has yet to be tested in practice, as there is no case law on this legislation. The Law on DP differentiates between the collection and processing of personal data:
- Collection: An action directed at obtaining personal data.
- Processing: Includes recording, systematizing, storing, changing, supplementing, extracting, using, distributing, anonymizing, blocking, and destroying personal data.
Controllers and Processors
Controllers (referred to as data holders) and processors can be either private or public entities. The legal grounds for collecting and processing personal data are as follows:
- Private Controllers and Processors: Must obtain the data subject's consent.
- Public Controllers and Processors: Can also collect and process data with the data subject's consent. However, if these are State organs exercising State power, they can do so without consent in two cases:
- When processing personal data in the course of exercising State functions.
- When protecting the constitutional rights and freedoms of other individuals.
Other legal grounds such as binding corporate rules or standard data protection clauses are not foreseen by the Law on DP.
Principles of Data Collection and Processing
- Collection and processing must align strictly with the purposes for which personal data was collected.
- Personal data can be retained until the purposes of collection and processing are fulfilled.
- Data subjects must be notified about the collection and processing of their personal data, have access to it, and have the right to rectify mistakes.
Biometric Data
Biometric personal data (data on physiological and biological peculiarities of individuals) can be collected and processed only upon receiving written consent, except when State organs process biometric data for purposes such as crime detection and investigation.
Access to Personal Data
There are two legal regimes for accessing personal data:
- Publicly Accessible Personal Data: Can be included in publicly accessible databases through the data subject's consent or without consent by State organs. Once consent is given for public use, it cannot be revoked.
- Personal Data of Limited Access: The competent State organ defines the minimum publicly accessible data, which includes the name, additional name of the subject, email address (without the data subject's name), place of work, and job position.
Transborder Flow of Personal Data
Transborder flow of personal data is allowed upon the data subject’s consent or when the foreign State’s data protection regime provides adequate protection of data subjects. The Law on DP does not specify what constitutes ‘adequate protection’ or the procedure for evaluating such regimes.
Data Handling Requirements
- Personal data must be separated from other information, particularly by recording it on media.
- Specific storage locations and a list of persons authorized to collect, process, or access personal data must be determined.
- Databases must exclude the combination of fields that exceed the purposes of their collection.
Safety Measures
Controllers and processors, as well as third parties, must:
- Establish measures to ensure the safety of personal data and prevent unauthorized access.
- Determine the list of persons responsible for implementing these measures.
Database Contents
Databases containing personal data must include:
- Purpose of data collection and processing.
- Name and address of the controller and processor.
- Surname, first name, and address of the data subject.
- Source of obtaining personal data.
- Time of processing personal data.
- List of actions to be performed with personal data.
- A field for data subjects to check their consent for data collection and processing.
Controllers and processors must take measures to destroy personal data once the purpose of its collection and processing is achieved. Data subjects must have the opportunity to familiarize themselves with their personal data without violating the rights and interests of other data subjects.
Reporting Requirements
If data subjects request a report on their personal information retained by the controllers and processors, the latter must provide such a report within three working days.
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27 May 2024
Public-Private Partnership in the Republic of Tajikistan
Introduction
The Republic of Tajikistan adopted the Law "On Public-Private Partnership" No. 907 on December 28, 2012. This law regulates collaborations between public authorities and private sector entities in infrastructure and social services projects.
Definition and Purpose of PPP
Public-Private Partnership (PPP) is defined as cooperation between the state and private companies to implement projects in various sectors like transport, energy, health, and education. The aim of these projects is to meet public needs, which is a primary responsibility of the state.
Scope of Regulation
The PPP Law governs the preparation and implementation of PPP projects, establishing the legal framework for creating, executing, and terminating PPP contracts. However, it does not apply to:
- Procurement of goods, services, and works (regulated by the Law on State Procurement).
- Privatization of state property and enterprises (regulated by the Law on Privatization).
- Subsoil usage rights (regulated by the Laws on Subsoil and Concessions).
- Credit projects funded by international financial institutions and foreign governments (regulated by the rules of these institutions).
Transparency and Equal Treatment
The PPP Law ensures transparency and equal treatment throughout the project lifecycle, detailing procedures for project initiation, approval, private partner selection, project implementation stages, and post-implementation relations.
Competent Authorities
- Government of Tajikistan: Defines the authorized state body on PPP, establishes the PPP Council, approves its composition and regulations, and lists infrastructure facilities and social services exempt from the PPP Law.
- PPP Council: Reviews and approves project proposals, pre-selection reports, and draft agreements, and oversees the activities of the authorized body.
- Authorized State Body: The State Committee on Investment and State Property Management (Goskominvest) implements state policy on PPPs, assists in project proposal preparation, and provides recommendations. Goskominvest also manages tender documents, PPP agreement standards, and supports the PPP Council's operations through the Centre for Implementation of Public-Private Partnership Projects.
Objects of a PPP The government determines the infrastructure facilities and social services exempt from the PPP Law, which include military, scientific, production, social institutions, and infrastructure critical for state functioning and citizen security.
Parties Involved
- Public Partner: Central or local authorities with the power to initiate projects and enter agreements with private partners.
- Private Partner: Individual entrepreneurs or legal entities, including consortia with technical and financial expertise, and foreign legal entities.
Main Obligations
- Private Partner: Constructs facilities, carries out activities, or provides services at their own expense as per the agreement.
- Public Partner: Grants rights to the private partner for owning and using the PPP facility and assists in obtaining necessary licenses and permits.
Private Partner Selection
Private partners are typically selected through a tender process, though non-tender selection is possible with PPP Board consent under specific conditions such as urgent need, short project duration with low initial investment, national defense or public safety matters, or lack of tender responses.
Term and Payment
The law sets no restrictions on PPP Agreement duration, with a minimum term of three years for social service projects. Payment methods and procedures are outlined in the PPP Agreement, which can include budgetary funds or consumer payments post-implementation.
State Obligations and Risk Distribution
The PPP Law addresses remedies for non-performance and compensation for increased costs or reduced income due to changes in law or public authority actions. Risk distribution is determined contractually, with mechanisms for the private partner to secure assets and revise agreements under significant economic or legislative changes.
Post-Agreement Asset Resolution
The PPP Agreement specifies asset transfer procedures upon termination, including assets to be returned, purchased by the public partner, or disposed of by the private partner. It also covers compensation for transferred assets, technology transfer, and staff training.
Termination of the PPP Agreement
The agreement can be terminated by mutual consent or due to uncontrollable circumstances. Additional grounds for termination by the private partner include the public partner's failure to fulfill obligations, inability to revise the agreement, or actions that increase costs or decrease revenues.
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15 April 2024
Two years ago we wrote in our article (https://aaa.tj/articles/cryptocurrency-and-tajikistan-last-and-least-or-the-majority) that on the scale of global crypto adoption and regulation Tajikistan was among the last and the least if compared to its closer or immediate neighbors. Our legal analysis at the time showed, at the same time, that, strictly speaking, crypto was neither legally banned nor legally restricted in Tajikistan.
In this update we take a snapshot of what happened since then. The update was prompted by the Presidential Decree No 798 of 27 March 2024, which approved a Regulations of the Agency for Innovation and Digital Technologies and the Special Regime Rules in the sphere of Innovation and Digital Assets. The Decree’s main focus was to open the door for pilot project involving digital transformation and innovation.
Regulation and Recognition
While the new regulations touch upon, and actually operate with, the term “crypto assets”, they still do not define it. Similarly, crypto mining remains to be undefined to date, too. The same applies to the definition of the “blockchain” altough on a few occasions reference was made to the "technology of a ditributed ledger".
This is in contrast to some of neighboring jurisdictions, where, attempts have been taken to define some of the terms a few yers eralier (Kazakhstan, Kyrgyzstan and Uzbekistan).
At the same time, the Agency for Innovation and Digital Technologies is now entrusted with regulation of, including proposing new legislation for, the “circulation of digital assets including crypto-assets”. This is the first time that Tajik law calls crypto by its name using the word "crypto". On this basis, we have now a legal recognition of the possibility for the existence of crypto-assets in Tajikistan, although, as mentioned previously, this and related terms are not defined and this is likely to come soon.
Restrictions
While the Decree No 798, recognizes the legal possibility for the existence of the crypto assets in Tajikistan, it introduces certain restrictions.
Thus, the Decree aims to promote digital assets transformation by allowing for special regulatory regimes for companies which introduce innovation and digitization during testing their project ideas (pilot projects). It is in this context of this special regimes that the Decree makes it clear that any such projects promoting the use of crypto assets as the medium of payment will be prohibited. In other words, it is prohibited (a) to pay with crypto; and (b) to receive crypto as a remuneration for any service or good. Such tight interpretation still leaves issues of mining and other use of crypto in Tajikistan unanswered and unregulated, at least for the time being.
It is not utterly clear if the intention was to exclude any crypto-related projects from the ambit of the special regime or to prohibit them altogether. Given that the Agency for Innovation and Digital Technologies was granted power to regulate the crypto assets domain, crypto as such is not ultimately outlawed and the government, perhaps, prefers to retain its monopoly over such potential projects.
What is crypto in legal terms?
Because cryptocurrency has in it a refence to the word “currency”, it is often called the currency. However, legally speaking, in Tajik law, it is not. There are two key terms with which Tajik law operates in this regard: “national currency” and “currency”. The former is Tajikistan Somoni, a legal tender in Tajikistan. The latter is defined as “national currency of a foreign state”. It now becomes obvious that crypto currency is not the currency in Tajikistan. Now, with the adoption of the Decree No 798, Tajikistan calls the crypto currency a “crypto asset”, the term which better reflects the nature of crypto.
Is crypto asset a digital money? As described previously, the message of the Decree No 798 essentially is that using crypto as a medium of exchange is prohibited in Tajikistan. So, crypto cannot be a legal tender, at least it cannot be contemplated as a payment medium within the framework of the projects which the government allows to be promoted.
If you wish to go deeper into the subject as is currently applied to Tajikistan, please refer here https://aaa.tj/articles/cryptocurrency-and-tajikistan-last-and-least-or-the-majority.
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03 April 2024
We are advising International Finance Corporation and European Bank for Reconstruction and Development in connection with several loans to local credit institutions and business expansion totaling to 70 million USD. The main focus is boosting financial literacy and fostering financial inclusion among the women and youth, and the expansion of production in the food industry.
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19 March 2024
AAA Law Offices is advising China Development Bank on its loan transactions with Tajikistan State Savings Bank (Amonatbonk). The transaction consists of 100 Million RMB Loan and 20 Million USD Loan to support the development of small and mid-sized enterprises and agricultural projects in Tajikistan. Signed at the end of last year, the transactions are expected to close soon after all conditons on the part of the borrower are satisfied.
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