Q&A: Kazakhstan Supreme Court Justice Discusses Investment Disputes

The American Bar Association Rule of Law Initiative (ABA ROLI) is working with the Supreme Court and the Union of Judges of the Republic of Kazakhstan (the national association of judges), to improve the investment climate of the country by providing the judicial system with international experience on investment dispute resolution. The new Civil Procedure Code (CPC), which has been in effect since Jan. 1, 2016, creates a special Investment Board under the Supreme Court to preside over major investment disputes.

Madiyar Balken is a justice of the Investment Judicial Panel of the Supreme Court of the Republic of Kazakhstan. In 1996, Balken graduated from the Law School of International Kazakh-Turkish University, then went on to receive his postgraduate degree from the Research Centre of Private Law of Kazakh State Law Academy in Almaty and a Ph.D. in legal sciences. During his legal career, Balken has served as a professor at the Academy of Jurisprudence, “Adilet” Higher School of Law, and also practiced private law. In 2005, Balken was appointed as a judge and continued to work in different courts across Kazakhstan until 2015, when he was elected as a justice of the Supreme Court of the Republic of Kazakhstan. Balken is a member of the Central Council of the Union of Judges of the Republic of Kazakhstan and in 2015, he was elected as regional vice president of the International Association for Court Administration. ABA ROLI recently interviewed Balkan and has translated his answers from Russian.

ABA ROLI: What is your perception of working with ABA ROLI?    

    
Balken: Kazakhstan’s judicial community has favorably accepted ABA ROLI’s project. … As part of its development process, (investment dispute resolution methods) are even more important as Kazakhstan strives for active integration with the international community. The country’s authorities set a goal for fostering an industrial and innovation-driven economy in Kazakhstan, developing high-tech manufacturing industries and financial markets that attract investments and foreign capital. To achieve this goal and promote economic and social reforms, Kazakhstan adopted the “100 Concrete Steps — Modern State for All” National Plan in 2015. According to the plan, in order to strengthen the rule of law principles in-country and improve the investment climate, specialized judicial panels on resolution of investment disputes were created in Astana, Kazakhstan’s capital. 

ABA ROLI: What is special about the investment disputes? What are the difficulties in resolving investment disputes?

Balken: Kazakhstan created a national system for resolution of disputes between investors and state authorities. Investment disputes are resolved in courts of high jurisdiction, mainly in courts of appeal and cassation. This allows developing deeper judicial specialization in investment law issues. In addition, Astana City Court and the Supreme Court are the two only courts in the country that consider investment dispute (cases). This approach was adopted to raise the quality of judicial protection of the investors’ rights in Kazakhstan and improve the investment climate in the country.

ABA ROLI: What does cooperation with ABA ROLI on investment dispute components bring to the Kazakhstan judicial community?

Balken: International experience is key in Kazakhstan’s efforts to further develop its national system for investment dispute resolution and improve protection of investors’ rights, therefore Kazakhstani judges and lawyers are interested in gaining international best practices first hand. In February 2017, the Supreme Court in cooperation with ABA ROLI, conducted a roundtable dedicated to problematic issues of investment disputes with the participation of state agencies, business sector representatives and international experts including: Chevron Corporation, Asian Journal of Innovation and Policy, ArcelorMittal, Baker McKenzie, Dentons, Arnold & Porter Kaye Scholer LLP, etc.

ABA ROLI: What current areas of international cooperation are supporting Kazakhstani Courts and your work related to the consideration of investment dispute cases?

Balken: I hope that we continue our effective partnership with ABA (ROLI) and other colleagues from the international community. I am a proponent of active expansion of international cooperation with both legal and business communities in foreign countries, including the U.S. In 2018, the Astana International Financial Center (AIFC) will start operating. This ambitious project aims at creating a new financial market within the Eurasian territory that would work under the norms of common law. Through the project, investors will enjoy maximum preferences. Currently, Kazakhstan is working on creating autonomic legal system based on common law. Files management system in AIFC will be conducted in English (and) an independent court and arbitration center will be created.

The creation of the International Council under the Supreme Court of Kazakhstan in 2016 was one of the development steps towards closer international cooperation. This advisory body was created in order to introduce international practices and standards to the Kazakhstani legal system and support adjudication of cases. International experts from the U.S., the U.K., Germany and Korea, as well as the most respected national academics and practitioners became members of the International Council. The International Council under the Supreme Court of Kazakhstan developed a number of recommendations on:

• Interaction between national and international courts and arbitrations
• Development of Alternative Dispute Resolution (ADR)
• Judicial education based on international experience
• Disputes related to protection of intellectual rights and
• Development of IT technologies in court.

Currently, the International Council's future agenda includes such topics as investment disputes resolution, criminal penalty, development of legal representation (presentation of client’s interests in the court), role of investigating judges and precedent law.

ABA ROLI: During the ABA ROLI study tour you attended, what experience was gained and what partnerships were formed?

Balken: In March 2017, (a group of judges, including myself) traveled to Washington, D.C. to (gain) international experience in investment dispute resolution. During the visit, we enjoyed the professional and personal interaction with our colleagues from ABA (ROLI), as well as representatives (from other) organizations including: the U.S. Department of State, the Federal Judicial Center, the U.S. Agency for International Development, the International Centre for Settlement of Investment Disputes and the International Finance Corporation of the World Bank and Arnold & Porter Kaye Scholer LLP. The Kazakhstani delegation also visited the U.S. Supreme Court and the U.S. District Court for D.C. becoming familiar with judicial practice, court administration and issues related to investment disputes resolution. On behalf of my colleagues and (myself), I would like to express (my) gratitude to (ABA ROLI) and (our) other American colleagues for the warm welcome that we received throughout our visit and the informative meetings that we attended in the U.S.  

To learn more about our work in Kazakhstan, please contact the ABA Rule of Law Initiative at [email protected].