The Rt. Hon. The Lord Woolf CH. Vision of the AIFC Court

The Rt. Hon.

The Lord WOOLF CH

Vision of the AIFC Court

The vision of the AIFC Court is to become the leading court for the resolution of commercial disputes in the AIFC and the Eurasia region achieving a one-stop shop for dispute resolution. It will promote and make the Republic of Kazakhstan and the AIFC preferred destinations for doing business.

It will enable parties, irrespective of their geographic location by way of agreement in their contracts or separate agreements to give exclusive jurisdiction to the AIFC Court.

The AIFC Court will complement the jurisdiction of the domestic courts with their civil law system.Having an English-speaking common law court as well as the existing civil law jurisdiction of the Republic of Kazakhstan domestic courts will build confidence in investors.

As we know, the language of the AIFC Court, in accordance with the Constitutional Statute 'On the AIFC' 2015, will be English. It is staffed by international judges who are skilled in resolving disputes involving commercial issues. The judges and I are very privileged to serve the Republic of Kazakhstan to further the rule of law.

It will be the task of the judges to uphold the same judicial standards and legal principles that have been applied and developed over a great many years by the commercial courts and the High Court of England and Wales (“EWHC"). The judges appointed to the AIFC Court are well aware of the practices of the EWHC. They will be able to promote the same standards in the AIFC Court.

The process for selecting judges of the AIFC Court was agreed between myself and the AIFC Governor. This was my most challenging and important task in establishing the Court because they had to be judges of the highest calibre as they are the key to ensuring the quality of justice in the AIFC Court. The litigants will not resort to a court willingly unless they have confidence in the judiciary. Accordingly, this excellent quality would undoubtedly be expected by the President of Kazakhstan.

In England and Wales, statutory requirements for judges are demanding and vary depending on the level of the court to which the judge is to be appointed.

In Nur-Sultan a candidate to become Chief Justice of the AIFC Court or one of the other categories of senior judges of the AIFC Court must be not less than forty years of age at the time of appointment. At the time of appointment, they must have significant knowledge of the common law and experience as a lawyer or judge in a common law system; be of good character; and able to speak and write fluently in the English language. (1) A candidate for the Small Claims Court (“SCC") must be not less than thirty years of age at the time of appointment; possess significant common law knowledge and experience as a qualified lawyer or judge in a common law system; be of good character; and be able to fluently speak and write in the English language. (2) In addition, it is preferable to have experience of commercial and financial litigation. There are no restrictions on residency and alternative employment under the AIFC Court Regulations 2017.

Naturally because they were to apply English law, the candidates we primarily considered had been members of the English judiciary and eminent in their field. As a result, the judicial bench comprises distinguished English court judges famous for their reputation of incorruptibility, experience, and impartiality. However, in time to come, the judges will increasingly come from the Republic of Kazakhstan.

High Standard Dispute Resolution

The principal factors parties may consider when choosing a court are: (3)

-judicial expertise – understanding, familiarity and experience with the nature of dispute and industry, all of which can save time and costs for parties;

-time efficiency – speedy dispute resolution decreases litigation costs;

-fairness – fair, transparent and impartial process of dispute resolution;

-litigation costs – lawyers' fees, travel, translation and other costs;

-finality – if a judgment/award is still open to appeal, this can increase the time and costs required in order to obtain a final resolution of the dispute;

-enforcement – a lengthy enforcement process can prolong uncertainty and engender additional costs; and

-familiarity – familiar procedural rules or processes allow parties to better prepare and present their cases effectively.

In this respect, the judges of the AIFC Court have considerable experience in resolving complex commercial and civil disputes; a judicial bench which specialises in the main areas of business such as finance, construction, trade, insurance, IP, energy, subsoil and contract.

The SCC provides a fast-track procedure for lower value cases with only one appeal available to the Court of First Instance (“CFI").

The AIFC Court judgements and orders are enforced in the Republic of Kazakhstan in the same way as national court judgements and orders and in the main key market players internationally; the AIFC Court rules are based on the principles of English procedure and familiar to international lawyers.

The AIFC law is based on English law principles and standards of leading international financial centres. It offers the following advantages:

-certainty and ability to foresee how a dispute is likely to be resolved;

-the foundation of the AIFC law is English common law; and

-natural capacity of the AIFC Court judges to apply and interpret the AIFC law.

The parties may also choose foreign laws as a governing law of a contract but should be aware of the risks associated with the possibility of different interpretations of foreign laws which may lead to lengthy and costly proceedings.

While the governing law determines substantive law, a well drafted jurisdiction clause can govern procedural matters. For instance, should parties choose the AIFC Court then procedures would be governed by the AIFC Court Rules. This brings me to elaborate the advantages that the AIFC Court Rules provide for litigants.

In my final report 'Access to Justice', (4) published in 1996, I identified a number of principles which the civil justice system should meet in order to ensure access to justice. These principles now apply to the AIFC Court. They provide that the justice system should:

(a) be just in the results it delivers;

(b) be fair in the way it treats litigants;

(c) offer appropriate procedures at a reasonable cost;

(d) deal with cases with reasonable speed;

(e) be understandable to those who use it;

(f) be responsive to the needs of those who use it;

(g) provide as much certainty as the nature of the particular case allows; and

(h) be effective, adequately resourced and organised.

The following principles are provided in the AIFC Court Rules 2018:

(a) the encouragement of the parties to settle their dispute by adopting alternatives to litigation where this is possible. For instance, in the SCC, parties before trial may request a consultation, for the purpose of resolving a dispute by agreement; (5)

(b) litigation is more co-operative. For instance, upon application of the party, the AIFC Court may make on order for production of documents before proceedings have started; (6)

(c) procedures are not complex; (7)

(d) the timescale of litigation is fixed and certain. All cases will progress to trial in accordance with a timetable set and monitored by the AIFC Court; (8)

(e) litigation is less costly, predictable and proportionate to the value and complexity of individual cases; (9)

(f) parties of limited financial means will be able to conduct litigation on a more equal footing. Litigants who are not legally represented will be able to get more help from advice services and from the AIFC Court;

(g) the structure of the AIFC Court and the deployment of its judges is designed to meet the needs of litigants. Less complex and small claims are adjudicated by the SCC. Heavier claims are considered by experienced and specialised judges (10) of the CFI. This ensures work is dealt with effectively; and

(h)the AIFC Court is responsive to the needs of litigants. (11)

Perspectives and the International Mission of the AIFC Court

Senators visited the AIFC Court and International Arbitration Centre.

Nur-Sultan, 16 of April, 2019

The AIFC Court only started its journey in 2018. It has clearly set as its goal to become the leading court for the resolution of civil and commercial disputes in the AIFC and the Eurasia region.

It will be assisted by developing its international connections, the implementation of innovation and the dissemination of knowledge and experience.

This is supported by the quality of its judges, who are known internationally for their impartiality, experience, excellence, and fairness, and the quality of administration the AIFC Court will deliver. Justice will be not only be done, but will also be seen to be done. (12)

Another feature of the AIFC Court is the development of a modern case management system known as 'e-Justice'. This will ensure expeditious and effective dispute resolution.

As a part of this process the AIFC Court will continue to establish and maintain cooperation with other judicial authorities, courts, and organisations. The AIFC Court has already signed memoranda of cooperation with the Supreme Court of the Republic of Kazakhstan, Ministry of Justice, General Prosecutor Office, and the Republican Chamber of Private Enforcement Officers, aimed at implementation of joint initiatives focused on promotion of the rule of law and efficient enforcement of the AIFC Court decisions.

The AIFC Court is actively cooperating with leading national universities such as KAZGUU and KIMEP. An example of this was the moot court competition in 2018 among young future lawyers with participation of the following AIFC Court judges: The Rt. Hon. Sir Robin Jacob, The Rt. Hon. Sir Stephen Richards, and a visiting judge to the AIFC Court, The Rt. Hon. The Lord Mance, who is a former Deputy President of the UK Supreme Court. (13)

An AIFC Court Users' Committee was also established in 2018 to ensure the AIFC Court will be able to respond to user needs. Close relations with the Kazakh Bar Association have been maintained.

The importance of international relations and international recognition is also appreciated and so the AIFC Court participates on the Standing International Forum of Commercial Courts ('SIFoCC') group and has participated in two international events in London in 2017 and in New York in 2018.

The AIFC Court will also take advantage of the Republic of Kazakhstan's involvement in the One Belt One Road ('OBOR') initiative.

The AIFC Court delivered its first education program in 2018 and will continue to expand that program in future years in compliance with the AIFC Court Regulations 2017.

The AIFC Court will also continue to work with the IAC to promote alternative dispute resolution and it will encourage pro bono work to increase access to justice to parties whom might otherwise not be able to pursue dispute resolution.

REFERENCES:

  • 1.The AIFC Court Regulations 2017, Article 12(6).
  • 2.The AIFC Court Regulations 2017, Article 12(7).
  • 3.Eva Lein, Robert McCorquodale, Lawrence McNamara, Hayk Kupelyants, José del Rio, 'Factors Influencing International Litigants' Decisions to Bring Commercial Claims to the London Based Courts', 2015, UK Ministry of Justice Analytical Series.
  • 4.The Rt. Hon. the Lord Woolf of Barnes, Master of the Rolls, 'Access to Justice – Final Report', July 1996.
  • 5.The AIFC Court Rules 2018, R.28.17.
  • 6.The AIFC Court Rules 2018, R.17.28.
  • 7.The overriding objective of the AIFC Court (See the AIFC Court Regulations 2017, Article 8, and see the AIFC Court Rules 2018, Rule 1.6), is to ensure that cases are dealt with expeditiously and effectively by using no more resources than necessary. To pursue this objective, the AIFC Court, in accordance with the AIFC Court Rules 2018, Rule 1.8, may waive any procedural requirement.
  • 8.In accordance with the AIFC Court Rules 2018, Rule 16.18, the claimant shall prepare and seek the agreement of all other parties to a draft trial timetable and shall file a copy of a draft trial timetable at least two days before the date fixed for the Pre-Trial Review. Any differences of view with any other party as to the timetable shall be clearly identified.
  • 9.In accordance with the AIFC Court Rules 2018, Rule 1.6(4), the overriding objective of the AIFC Court is to deal with cases in ways which are proportionate to a) the amount of money involved; b) the importance of the case; c) the complexity of the issues, and d) the financial position of each party. In this regard, the AIFC Court issued the Practice Direction No. 1: AIFC Court Fees, fixing fees depending on the claim value and complexity.
  • 10.The AIFC Court judges have considerable experience and expertise in dealing with commercial and civil disputes in the areas such as construction, sub-soil, commercial fraud, insurance and reinsurance, professional negligence commercial trusts, banking, financial services, competition law, regulatory law, IP, contract law.
  • 11.From the outset, the AIFC Court established the Court Users Committee, the members of which include representatives from international and domestic law firms.
  • 12. R v Sussex Justices, ex parte McCarthy [1924] 1 KB 256.

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ABOUT THE AUTHOR. Chief Justice of the AIFC Court The Rt. Hon. The Lord Woolf CH is the Head of the Judiciary of the AIFC Court. He is one of the most influential judges in recent British legal history and a global figure on the common law, courts and dispute resolution, and legal education.

Created at : 13.06.2019, 11:50, Updated at : 13.06.2019, 11:50