USAID and KAZAKH INVEST held a roundtable discussion on investment legislation
With the support of the United States Agency for International Development (USAID) under the Rule of Law Program implemented by the American Bar Association/Rule of Law Initiative (ABA ROLI), at the initiative of the Investment Committee of the Ministry of Foreign Affairs of Kazakhstan and «NC «KAZAKH INVEST» JSC a round table «Judicial protection of investors» was held.
The purpose of the event was to develop a common position on the amendments to legislative acts in terms of determining the jurisdiction of investment disputes.
At the moment, due to the broad interpretation of the concept of «investment dispute», there is confusion in determining the jurisdiction: investors apply to the court in Nur-Sultan only in the presence of the investment contract, while all other investors need to prove participation in the share capital of legal entities or involvement in investment activities.
Representatives of the Supreme Court told about the positive statistics to date. Thus, more than 50% of claims of investors, coming to economic courts, were satisfied in favor of investors. This tendency was noted by the judge of the Supreme Court Dana Aitmagambetova and the Chairman of the judicial board for administrative cases of the Supreme Court of the Republic of Kazakhstan Aslan Tukiev.
The participants of the event listened with great interest to the speeches of Maidan Suleimenov, Master of Law and Lawyer of New York Bar Association Yaroslav Krivoy.
Both speakers gave extensive information about the foreign practice of determination of investment disputes and gave recommendations for further changes in the legislation.
Daniyar Toigonbayev and Aigul Kenzhebayeva, representatives of the law firm «Dentons», which has the most extensive practice in the resolution and support of investment disputes, presented their recommendations regarding the jurisdiction of these disputes. In particular, they stated that the optimal scheme is to elaborate on the single criterion of jurisdiction and this criterion is the availability of contractual relations with the State.
The participants of the round table were welcomed by Larisa Jumagalieva, the Deputy Chairman of the Committee on Investments of the Ministry of Foreign Affairs of the Republic of Kazakhstan.
In particular, she noted that at the meetings with foreign investors they noted that the rule of law is today, perhaps, the most decisive factor in choosing the country for investment. Kazakhstan has concluded 48 bilateral agreements on encouragement and mutual protection of investments and is currently working on the conclusion of similar investment agreements with more than 25 countries. «An integral part of each agreement is norming on the settlement of disputes between investors and the host state. Virtually every agreement concluded provides for the right of the investor to apply, along with international arbitration institutions, to the national courts of the defendant. At the same time, it is essential that the national courts have jurisdiction over such a dispute. In this regard, it is extremely important to improve both the quality of administration of justice in such disputes and the correct procedural aspects of their consideration. The investor, being confident in the objective, impartial, professional consideration of his case, will prefer our national courts to other courts which are notorious for their expensive and time-consuming consideration of investment disputes», - emphasized the Deputy Chairman of the Committee on Investments.
According to Alida Tuyebekova, Director of Service Support Department of «NC «KAZAKH INVEST» JSC, «support and assistance to investors are assigned to KAZAKH INVEST at the legislative level and are implemented through the Institute of one window for investors and the Institute of Investment Ombudsman assigned to the company. Following Article 317 of the Entrepreneurship Code, authorized body on investments for the organization of Investment Ombudsman activity, and with the help of KAZAKH INVEST's office consider problematic questions of investors to solve them in pre-trial and out-of-court order».
Alida Tuebekova noted that she believes that for a special jurisdiction of investment disputes should be one criterion and this criterion is an agreement or contract with the state.
At the end of the event, the participants agreed that such discussions will help develop a common position on the issues at hand and will also serve as another positive signal for investors about the readiness of Kazakhstan to continuously improve its investment climate.
After active discussion, the participants mostly supported the opinion that the only and clear criterion for the jurisdiction of investment disputes should be a contract or an agreement with the state.
For reference:
USAID is the world's leading international development agency and a catalyst for development results.
ABA ROLI works with partners in 60 countries to build sustainable institutions and societies that promote justice, economic opportunity, and human dignity.
