Интернаука - Интернаука №16 (часть3) 2020

ABSTRACT

Since recent times, the “Astana International Finance center” (hereinafter - “AIFC”) began to operate in the Republic of Kazakhstan, the legal status of which is determined by the Constitutional Law of the Republic of Kazakhstan dated December 7, 2015 No. 438-V “on the AIFC” [2].

The court of the center is one of the bodies of this center, which is independent in its activities and is not part of the judicial system of the Republic of Kazakhstan.

The judges, procedures, practices and standards at the AIFC Court will be familiar to businesses currently operating in major financial centers around the world.

The purpose of the article is to give a clear definition of AIFC, to identify pros and cons of AIFC and make an analysis of the case of AIFC, which is on public access.

АННОТАЦИЯ

С недавних пор в Республике Казахстан (далее – РК) начал действовать «Международный финансовый

центр Астана» (далее - МФЦА), правовой статус которого определяется Конституционным законом РК о

МФЦА от 7 декабря 2015 года №. 438-V [2].

Суд МФЦА является одним из органов этого центра, который независим в своей деятельности и не является

частью судебной системы РК.

Судьи, процедуры, практика и стандарты Суда МФЦА будут знакомы предприятиям, которые в настоящее

время работают в крупных финансовых центрах по всему миру.

Цель данной статьи - дать четкое определение МФЦА, выявить плюсы и минусы МФЦА и проанализиро-

вать первое судебное решение Суда МФЦА, который находится в открытом доступе.

Keywords: Astana International Finance center, judicial decisions, court of first instance, court of appeal, petty litigation, case law, “opt-int” jurisdiction.

Ключевые слова: Международный финансовый центр «Астана», судебные решения, суд первой инстан-

ции, апелляционный суд, суд мелких тяжб, прецедентное право, юрисдикция «opt-int».

The court of the center consists of two instances:

a framework set by the legislature when it enacts stat-the court of first instance and the court of appeal.

utes, the law is made by decisions of judges. The com-

The court of the Center does not carry out criminal

mon law is thus that part of the law which it is within and administrative proceedings and has exclusive juris-the province of the courts themselves to establish. It is diction in respect of:

unwritten in the sense that it is not in a statute, but it is 1) consideration and resolution of disputes arising

made accessible and transparent in law reports and in between the participants of the center, the authorities of

textbooks which analyse the effect of the decisions with

the center and / or their foreign employees;

a view to identifying the principles which underlie

2) consideration and resolution of disputes relating

them.

to any operation carried out in the Center and subject to

In 2019, in the small claims court, the first AIFC

the law of the Center;

court decision appeared publicly (CASE No.: AIFC-C /

3) consideration and resolution of disputes referred

SCC / 2019/0001) [4].

to the court of the Center by agreement of the parties.

The case was between Aurora AG Limited (herein-

The main aim of the AIFC Court was to be the lead-

after – “Claimant”) and Star Asian Mining Company

ing court in resolving civil and commercial disputes in (hereinafter – “Defendant”).

the AIFC and the Eurasian region.

It is initially worth noting that in paragraph 11.5 of

The hallmark of a common law system is the im-

the Treaty, mentioned in the text of the AIFC court de-

portance accorded to the decisions of judges and, in cision, it was written that the “All disputes and disa-particular appellate judges, as sources of law. So, within

greements that may arise between the Parties will be 54

Журнал «Интернаука»

№ 16 (145), часть 3, 2020 г.

resolved through negotiations. Unresolved disputes will

with the AIFC court, which provides services for the be resolved in the “Astana International Financial Cen-resolution of world-class commercial disputes for busiter Court” [4].

ness in the Eurasian region and for it outside.

The subject of the petty litigation, considered under

As the Defendant has not engaged with these pro-

English law, was the debt of Star Asian Mining Compa-

ceedings to date, no conflict of evidence arises. The ny LLP to Aurora AG Limited for performing geophys-Claimant has submitted everything on which it intends ical work in the East Kazakhstan region in 2018.

to rely and has requested a determination without a

The Claimant claims sums due under a contract

hearing. A hearing is therefore likely only to delay the (“the Contract”) entered into between the parties on 17

claim. In the circumstances, the court have decided this

July 2018 [5]. By the terms of the Contract, the Claim-

claim without a hearing in accordance with ACR 28.39

ant was engaged to carry out ground-based geophysical

[3].

works for the Defendant in East Kazakhstan. The

Thus, the court ruled that the plaintiff, within the Claimant’s position is that it carried out the works but

framework of the contract, has the right to claim in rela-

has not been paid by the Defendant.

tion to the full amount of the contract, including the According to subparagraphs 4 and 3 of paragraph

“penalty”.

13 of Article 13 of the Constitutional Law of the Repub-

In connection with the foregoing, here we can see

lic of Kazakhstan on the AIFC No. 438-V dated De-

that AIFC's first court decision was executed efficiently

cember 7, 2015 (as amended and supplemented), “the

in record time.

AIFC Court has jurisdiction over disputes referred to the

Subsequently, the Сourt delivered its first decision

AIFC Court by agreement of the parties”. This Court

in April 2019.

therefore has jurisdiction over this claim [1].

By the way, the dispute was considered in the

Consequently, the Court had jurisdiction to consider

framework of writ proceedings through electronic ex-

this claim.

change of documents. In other words, neither the judge

The sum claimed by the Claimant is equivalent to

nor the participants had to meet to resolve the dispute.

approximately USD 110,000. This claim is therefore

Christopher Campbell-Holt (Court registrar) notes that

appropriate for determination in the Small Claims Court

the first court decision became symbolic.

pursuant to the AIFC Court Rules (hereinafter –

Summing up, it is worth noting that this is the first

“ACR”), Rule 28.2(1) [3].

dispute to be considered in the AIFC court, based on The lawsuit was filed under the “opt int” jurisdic-English law, where cases of international level judges tion, which can be chosen by any parties from any coun-are considered. The court began working in January

try, subject to the written consent of all parties to re-2018 and was created as part of the implementation of solve the dispute in the AIFC court. The Small Claims the Nation Plan "100 concrete steps."

Court is a subdivision of the court of first instance in the The AIFC Court has introduced electronic filing of

AIFC Court, which hears and makes decisions and deci-

applications and an expedited review of small litiga-

sions on disputes, the amount of the claim in which does

tions. Now the whole process can be tracked on the In-

not exceed 150 thousand US dollars, or 300 thousand

ternet.

US dollars with the consent of the parties to consider the

Since 2018, for the first time in the Eurasian space,

claim in small litigation court.

the AIFC Court and the International Arbitration Center

The AIFC court considered the dispute as part of a

(IAC) have been created in Kazakhstan, which created

writ by electronic document exchange without court

an attractive legal environment for investors and busi-fees in accordance with international standards.

ness development.

Based on the documents presented by the plaintiff,

By the way, the AIFC has a certain number of con-

the AIFC court represented by Tom Montagu-Smith

tracts that stipulate that if there are disputes between the decided Defendant to pay 44.8 million tenge to Claim-companies, they will resolve them on the site of the Ka-

ant for the services provided, including interest.

zakhstan financial center. According to the latest data, The AIFC court delivered its first judgment 14

we are talking about more than 1000 contracts for 2019

months after the start of its operations. One of the first alone.

in the world among similar commercial vessels. The

Because of the AIFC court was born recently, we