NUR-SULTAN, Kazakhstan – (BUSINESS WIRE) – On May 27, 2021, the World Bank, together with the Ministry of Justice of Kazakhstan, hosted a high-level webinar titled: “Kazakhstan’s Experience in Improving the International Business and Investment Climate – Improving the Mechanisms of dispute settlement and prevention: prevent, arbitrate and Mediat “.
The event represented the third session of webinars as part of a series of webinars hosted by the World Bank that explores Kazakhstan’s judicial reform cycle and its approach to strengthening its institutional and regulatory framework.
In his opening speech, the World Bank Country Director for Kazakhstan, Jean Francois Marteau, presented the key theme of the session – Kazakhstan’s commitment to resolving investment disputes and how its track record in this area can impact the country’s attractiveness as a forum for investment.
In his welcome speech, the Minister of Justice Marat Beketayev reaffirmed that Kazakhstan is deeply committed to following and adopting the best frameworks for dispute settlement, and that this has helped to promote and protect the rule of law in Kazakhstan for foreign and domestic investors. Minister Beketayev cited the establishment of the Astana International Financial Center as proof of the achievements. The minister added that: “the development of our institutions has been accompanied by a decrease in the number of international arbitration cases brought against Kazakhstan”, as evidenced by the latest data from the World Bank.
Professor George Bermann, Professor and Director of the Center for International Commercial and Investment Arbitration, Columbia Law School, acting as session moderator, presented the panel of speakers, made up of leading international dispute resolution experts. As he explained, the webinar focused on two competing principles that all states, including Kazakhstan, must follow: “First, the general obligation of states to respect and comply with arbitral awards and two. , the right of a State to resist the sentences to which they have a legitimate defense under the applicable treaties. “A state which properly manages this tension, further explained Professor Bermann,” will by definition have acted in a manner which is genuinely favorable to arbitration and in so doing will have made a significant contribution to the state. by right”.
The first panelist, Meg kinnear, Vice-President of the World Bank and Secretary General of the International Center for Settlement of Investment Disputes (ICSID), presented a summary of the function of ICSID and Kazakhstan’s experience in investor arbitration at ICSID and more generally. She presented substantial data and highlighted the results of the twenty-three investor-state arbitrations in which Kazakhstan has been involved since its independence in 1991. These data showed that of the 19 cases settled, 10 were won by Kazakhstan, 2 were settled before the award, 6 were lost in arbitration and 1 in enforcement challenge. Out of these 6, Kazakhstan has settled or paid the award in all cases except one – the Stati case – where Kazakhstan actively contests the execution after annulment. As Ms. Kinnear noted, these results are consistent with those of other states and are “very balanced”.
This view was supplemented by Professor Dr Kaj Hober, Professor of International Trade and Investment Law at Uppsala University, and Associate Member of 3 Verulam Buildings, Gray’s Inn London, who discussed the impact of investment disputes on the investment climate from the perspective of states and investors. Professor Hober stressed that education and training are essential, adding that the statistics look good for Kazakhstan but even with these statistics the specifics of each case must be questioned to understand the truth rather relying on broad and often incorrect generalizations.
Prof. August Reinisch, Professor of International and European Law at the University of Vienna, focusing on a specific phenomenon that has become more prominent over the past two decades – fraud and corruption in the field of investment arbitration. Professor Reinisch pointed out that fraud and corruption are difficult to prove, often on the basis of circumstantial evidence, red flags and indications.
Professor Reinisch concluded that while in the past cases of proven fraud or corruption generally led to the rejection of investor claims for lack of jurisdiction or inadmissibility, there are trends calling for more nuanced solutions, inspired by arbitration approaches. trade as well as article 34 of the United Nations Convention against Corruption.
To finish, Akerke Akhmetova, Deputy Minister of Justice of Kazakhstan, spoke about Kazakhstan’s experience and reforms aimed at improving dispute settlement and prevention mechanisms. She stressed that a lot has been done in recent years and that “the Ministry of Justice of Kazakhstan believes that the way to achieve reform and change is to promote transparency and open debate.” She then described the various initiatives and reforms undertaken by the ministry to strengthen investment dispute resolution mechanisms in three categories: legal framework reforms, institutional reforms and cultural changes. Ms Akhmetova concluded by noting that all reforms and initiatives are carried out in accordance with the fundamental principle of the rule of law, which must be respected at all times.
Waleed malik, Senior Public Sector Specialist, World Bank, made closing remarks and thanked session participants and organizers and announced that the next session in the series will take place on June 3rd 2021.
The webinar recording can be found here:
The presentations are available here: