IAC

23 August 2024 00:00:00

THE RULE OF LAW IN THE MODERN INTERNATIONAL CONTEXT FOR SUSTAINABLE DEVELOPMENT AND SOCIETY: THE CONSTITUTIONAL COURT OF THE REPUBLIC OF KAZAKHSTAN AND THE AIFC COURT

Speech by Mr. Christopher Campbell-Holt,
Registrar and Chief Executive, AIFC Court & IAC

Dear Chairman Azimova, distinguished Judges of the Constitutional Court, distinguished speakers, and guests:

I am delighted to speak at this conference this morning. All of us at the AIFC Court and IAC at the Astana International Financial Centre greatly value our cooperation with the Constitutional Court. Please accept my warmest wishes as we all celebrate the upcoming Constitution Day in Kazakhstan.

All societies require an efficient and effective system of government and law that adheres to the rule of law. The rule of law provides a framework within which nations can cooperate to address global challenges. It ensures that international agreements and standards are adhered to, fostering a predictable and stable global environment conducive to sustainable development.

We all know that the UN Sustainable Development Goals have recognised the rule of law as integral to achieving sustainability, particularly Goal 16, which calls for peace, justice, and strong institutions. By adhering to and promoting the rule of law, nations create environments where sustainable economic growth, social progress, and environmental protection are attainable. The rule of law ensures that decisions affecting development are made transparently and inclusively, considering the rights and interests of all stakeholders. Citizens have more confidence in their governments, engage more positively in economic activities, and participate in civic life. This trust is critical for the stability and resilience of societies.

We often refer to the term "the rule of law," but what does the term actually mean?

The rule of law requires application of particular values. The late Lord Bingham, who was a very distinguished English judge, in his book published in 2010, The Rule of Law, articulated eight principles of the rule of law that provide a comprehensive framework. These principles are as follows:

1. The law must be accessible, clear, and predictable.
2. Questions of legal right and liability should be resolved by the application of the law and not by discretion.
3. The laws of the land should apply equally to all, save to the extent that objective differences justify differentiation.
4. Ministers and public officers at all levels must exercise the powers conferred on them reasonably, in good faith, for the purpose for which the powers were conferred, and without exceeding the limits of such powers.
5. The law must afford adequate protection of fundamental human rights.
6. Means must be provided for resolving, without prohibitive cost or inordinate delay, civil disputes which the parties themselves are unable to resolve.
7. Adjudicative procedures provided by the state should be fair.
8. The state must comply with its obligations in international law as well as in national law.

These principles encapsulate the essence of the rule of law and serve as a useful guide for establishing and maintaining a just and sustainable society. They emphasise the importance of clarity, fairness, equality, and accountability in the application of the law.

The Constitution of the Republic of Kazakhstan contains all of the rule of law values which I have just identified. This includes, for example, the rights of individuals, the rights to life and freedoms, including human rights, equality before the law, the right to judicial protection, independence of the judiciary, and compliance with international law.

The Civil Procedure Code of the Republic of Kazakhstan contains principles that adhere to the rule of law. Some brief examples: accessibility of the law. Articles 1 and 14 provide that the law must be accessible, clear, and predictable. Another example is the resolution of legal rights and liabilities by law, not discretion — Articles 6, 7 and 13 provide that courts must comply strictly with the Constitution, laws, and other regulatory acts, ensuring that decisions are based on established legal principles rather than discretion. Article 13 provides that justice in civil cases is based on the principle of equality, ensuring no discrimination based on social status, gender, race, or other factors. Article 15 further provides that courts shall treat all parties equally and with respect.

The Constitutional Court of the Republic of Kazakhstan safeguards the Kazakhstan Constitution and plays a critical role in interpreting and upholding the Constitution, ensuring that all laws and government actions comply with constitutional principles. It protects human rights by reviewing legislation and government actions. It ensures that citizens' fundamental rights and freedoms are protected. Here, may I congratulate the Court, and in particular the Court's Chairman, Chairman Azimova, for the work done to produce and publish the Kazakhstan Constitution in Braille to further enhance access to constitutional rights for Kazakh society.

Checks and balances and judicial review: the Court has the authority to review and invalidate laws or actions by the executive or legislature that are deemed unconstitutional. This provides a critical check on the powers of government, promoting legal certainty. By its decisions, the Court clarifies constitutional provisions, providing legal certainty and stability in the interpretation of Kazakh laws. The Court operates independently of the executive and legislature, ensuring that its decisions are impartial.

Drawing a brief comparison with the AIFC Court, the AIFC Court was established in 2018 pursuant to the AIFC Constitutional Statute, which was enacted by the Parliament of the Republic of Kazakhstan in 2015. The Court was established to specialise in international commercial disputes and to provide world class justice that would assist with attracting international investment to Kazakhstan. The Court has resolved more than 3,000 cases collectively with the International Arbitration Centre, based at the Astana International Financial Centre in Astana, Kazakhstan. Article 13 of the Constitutional Statute requires the Court to be independent. The Constitutional Statute defines the purpose of the Court: to protect the rights, freedoms, and legal interests of the parties to ensure that AIFC law (which is modelled on the common law of England and Wales) is implemented.

The Court has its own court of final appeal. Its decisions are final and cannot be appealed by any other institution or authority. The Court's rules, practices, and procedures adhere to the highest international standards of the rule of law through an overriding objective, which states at Rule 1.6 that the Court must deal with cases justly. Dealing with cases justly means, as far as practicable, ensuring that the system of justice is accessible and fair, ensuring that the parties are on an equal footing, ensuring that cases are dealt with expeditiously, using only the resources that are strictly necessary, and dealing with cases in a way that is proportionate to the amount of money involved, the importance of the case, the complexity of the issues, and the financial position of each party, while making appropriate use of digital technology.

All of these factors, together with: the judicial expertise of the international judges at the Court, led by the Right Honourable the Lord Burnett of Maldon, who was recently appointed as Chief Justice of the AIFC Court by His Excellence, the President of the Republic of Kazakhstan, Kassym-Jomart K. Tokayev, having recently retired from the appointment of Lord Chief Justice of England and Wales; the transparency of the Court’s proceedings, the efficiency of its proceedings, the enforceability of its judgments, all its outreach work including promotional work and training, and its regional influence and status, strongly promoting the rule of law, have all contributed to global corporations recognising the Court as a deal-breaker in their final decisions to invest in Kazakhstan.

I firmly believe that Kazakhstan, and in particular its relatively new institutions, which include the Constitutional Court of the Republic of Kazakhstan and the AIFC Court, have significantly enhanced application of the rule of law. This will support sustainable development for the wider Kazakh society and will continue to enhance Kazakhstan's overall standing in the world.

References:

The AIFC Court is an independent legal entity. It has its own procedural rules modelled on English common law procedures and leading international practice. The AIFC Court is separate and independent from the courts of the Republic of Kazakhstan. It consists of two tiers: a Court of First Instance, which includes a specialist division known as the Small Claims Court; and a Court of Appeal.  It has exclusive jurisdiction over disputes arising out of the activities and operations of the AIFC and jurisdiction in the case of other disputes in which all parties agree in writing to give the AIFC Court jurisdiction. It does not have jurisdiction in relation to disputes that are of a criminal or administrative nature. It applies the most up to date and efficient case management practices. https://court.aifc.kz/

The International Arbitration Centre (IAC) is an independent legal entity. It has its own procedural rules modelled on best international practice. It has its own panel of leading international arbitrators and mediators having many years of arbitration and mediation experience in commercial law, including oil and gas, trade, construction, energy, financial services, banking, Islamic finance, insurance, and intellectual property. IAC arbitration awards are recognised and enforceable in Kazakhstan and internationally. https://iac.aifc.kz/

The Astana International Financial Centre (AIFC) is an independent jurisdiction that started operations in 2018. In accordance with the Development Strategy until 2025, the key focus of the AIFC is to consolidate as a universal platform connecting the countries of the EAEU, Central Asia and the Caucasus. www.aifc.kz