What would be correct interpretation of subparagraph 3) of paragraph 1 of Article 4 of Constitutional Statute? Does there need to be any specific act of the Governor or other AIFC authority in order to apply Kazakhstan law?
According to subparagraph 3) of paragraph 1 of Article 4 of the Constitutional Statute of the Republic of Kazakhstan On Astana International Financial Centre dated 7 December 2015 (the “Constitutional Statute”), the Acting of Law of the Republic of Kazakhstan applies in part to matters not governed by the Constitutional Statute and AIFC Acts. The abovementioned provision of the Constitutional Statute does not require development of a specific AIFC Act.
In addition, practical implementation of the Article 4 of the Constitutional Statute is sustained and supplemented by AIFC Regulations on AIFC Acts 2017 adopted by the Governor of the AIFC on 20 December 2017.
AIFC Regulations on AIFC Acts 2017 determine the hierarchy of the Acting Law of the AIFC, development, approval and adoption of the AIFC Acts. In particular, section 40 (Application) of AIFC Regulations on AIFC Acts 2017 determines descending levels of relevant jurisdiction to be ascertained to apply relevant law on civil or commercial matters, the rights and liabilities between Persons in any civil or commercial matter, including questions of application of the acting law of the Republic of Kazakhstan.
Will the Republic of Kazakhstan [Arbitration Law] (including requirements to obtain prior consent of a superior authority under Article 8 thereof) apply to the proceedings in the IAC?
No. The requirements of the Kazakhstan national law on arbitration do not apply to arbitrations conducted under the AIFC Arbitration Regulations 2017. See section 7 (Exemption from Legislation) of the AIFC Arbitration Regulations 2017. However, parties should note when one of the parties to an arbitration is a Kazakh state party, the provision in the Kazakh Arbitration Law [Kazakh national law on Arbitration] requiring consent to be given by the Kazakhstan authorities will still be applicable to them.
The parties to a dispute at the IAC may agree in writing which procedural rules apply to an arbitration or mediation at the IAC. Arbitration or mediation procedural rules of Kazakhstan will only apply at the IAC if the parties to the dispute agree in writing that such shall apply in their proceedings at the IAC.
Are judgments of the AIFC Court enforceable in greater Kazakhstan? And elsewhere? What about AIFC arbitral awards?
A: Yes. AIFC Court judgments are enforceable in Kazakhstan on the same terms and conditions as judgments of the Kazakhstan courts. Parties who wish to enforce an IAC arbitral award in Kazakhstan can apply to the AIFC Court for an execution order and subject to obtaining that execution order the arbitral award will be enforced in Kazakhstan on the same terms and conditions as judgments of the Kazakhstan courts.
B: Enforcement of AIFC Court judgments in the Commonwealth of Independent States (‘CIS’) can currently happen in accordance with the provisions of the Minsk Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (22 January 1993 as amended 28 March 1997), the Kishinev Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (7 October 2002), and the Kiev Agreement between the CIS Countries on the Procedure for Settlement of Disputes Associated with Commercial Activities (20 March 1992).
AIFC Court judgments are also recognized and enforced in various other countries pursuant to bi-lateral treaties ratified by the Republic of Kazakhstan (including Azerbaijan, China, Georgia, India, the Kyrgyz Republic, Lithuania, Mongolia, North Korea, Pakistan, Turkey, Turkmenistan, United Arab Emirates, Uzbekistan).
Judgments of the AIFC Court may be enforced in foreign countries on the basis of reciprocity, without requiring Government or Court agreements, including in the UK, China and the US.
IAC arbitration awards are recognized and enforced internationally in accordance with the provisions of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 1958 (‘the New York Convention’)) in 159 countries.
Can parties to a dispute arising in Kazakhstan outside the AIFC agree to litigate their case in the AIFC Court? Or to submit to arbitration in the AIFC?
Yes. Parties who have no relation to the AIFC can agree or “opt-in” to bring a case to the AIFC Court or to the IAC provided all of the parties to that case agree to do so in writing. The agreement to do so can happen at any time of the contractual relationship, whether before or after the dispute arises.
Can I choose to make my AIFC contracts subject to a law other than the Acting Law of the AIFC?
Yes, it is possible. AIFC Contract Regulations 2017 state that the Regulations govern contracts made between AIFC Participants, AIFC Bodies and AIFC Participants, and AIFC Bodies, unless otherwise expressly provided in a contract. If a party to a contract is not an AIFC Participant or AIFC Body, the Regulations do not apply to the contract unless expressly provided in the contract. Any contract governed by the Regulations is subject to the jurisdiction of the AIFC Court unless otherwise expressly provided in a contract.
Can a civil law contract, where one of the parties is a private company registered in the AIFC, specify the acting law of the Republic of Kazakhstan as the substantive law and the procedural rules of the International Arbitration Centre or the AIFC Court as the procedural law
Yes, the AIFC Court and the IAC hear and adjudicate disputes on the basis of a relevant agreement between the parties.
In adjudicating disputes, the AIFC Court is bound by the Acting Law of the AIFC, which is based on the principles, legislation and precedents of the law of England and Wales and the standards of leading global financial centres and may also take into account final judgements of the AIFC Court and the courts of other common law jurisdictions in related matters. If the substantial law of the dispute, as agreed by the parties of the dispute, is not the Acting Law of the AIFC, the law to be applied in the case will be determined by the AIFC Court. Such law may be any law, including the Acting of the Republic of Kazakhstan, as the substantial law of the dispute. The acceptance or rejection of application for adjudication of a dispute by the AIFC Court or the IAC is decided exclusively by the AIFC Court or the IAC.