A New Commercial Court for Nur-Sultan
It gives me great pleasure to be with you today at Kazguu University. I am very conscious of the generous hospitality the university has extended to the AIFC Court and its Judges led by your Rector, Talgat Narikbayev and Provost Dr. Miras Daulenov. You have also recognised the contribution made to the University by the AIFC Court’s & International Arbitration Centre’s Registrar and Chief Executive, Christopher Campbell-Holt, by conferring on him an honorary professorship. In addition, you have provided excellent opportunities for our English judges to give talks to members of the University. The talks have been social occasions very much enjoyed both by the audience and the judges.
The encouraging warmth of our reception has been of the greatest importance in assisting us to achieve the objective of the Court and IAC. This objective was admirably described by the Governor of the AIFC, Dr Karat Kelimbetov, as being to provide “a trustworthy, transparent and fair forum for resolving cases efficiently” which would meet the expectations of the international business community.
That judges should not ignore the social dimension of their work was brought home to me about 60 years ago when I was still a young barrister (or advocate) appearing in the criminal courts in England. I was defending a client at Abingdon Quarter Sessions. The building in which the Sessions were held was historic. Between my client in the dock and the judge were 2 pillars which were needed to support the ceiling. As a result, both the defendant and the judge had to peer round the pillars in order to see each other. My client was a particularly unfortunate villain who had committed many crimes of limited gravity, but he undoubtedly deserved a substantial sentence of imprisonment. The judge, in accord with his usual practice, after telling the defendant the sentence which he would have to serve (which was about one-tenth of what he deserved) concluded his remarks by saying, “I hope I never see you again”. He then corrected himself adding the words that I have never forgotten, “except socially of course”.
When creating a new commercial court and IAC the task of meeting the expectations of the business community is of particular importance. Put briefly, the expense involved in creating a special court for the business community is inevitably considerable. It can only be justified if its presence can be expected to be welcomed by the business community. It should be expected that its presence will act as a catalyst for attracting new businesses to be established. In this case, not only in Nur-Sultan but throughout Central Asia and beyond where at present there is no comparable dispute resolution centre.
However, there are earlier models of commercial courts already established in other jurisdictions which could help determine what should be provided in Nur-Sultan. There were already primarily commercial courts in Dubai, Qatar, Abu Dhabi, Hong Kong and Singapore. Each of these courts was carefully considered before deciding upon the model which should be adopted for Nur-Sultan. Like the system of justice chosen for the AIFC they are all substantially based on the English common law system of justice designed to operate in accord with the rule of law. Justice should be independent, incorrupt and not only done, but seen to be done.
The need for independence is part of the explanation why it was decided that the judges of the new court, at least initially, should be retired senior English judges. This meant that the judges were also likely to be highly experienced in trying the types of cases it is hoped the Court will attract. There is also the advantage of a tradition of incorruptibility. No English judge in living memory has been found to have accepted a bribe and this fine tradition follows from the fact that most judges were drawn from among the sole practitioners who are members of an independent English bar. The judges are also experienced of sitting initially as single judges which in a common law system involves them exercising a considerable degree of discretion.
We are now in the age of artificial intelligence and one distinguished academic has suggested that the time is fast approaching when we can dispense with human judges and train machines to perform the judges’ task in their stead. While I am prepared to accept that one day we may have driverless cars I am not prepared to contemplate JUDGLESS COURTS. Let me explain why by reference to the case in which I was involved personally as the judge which I suggest could never be tried by a machine, the Diane Blood case1.
This case I suggest vividly demonstrate that the issues that are involved in deciding cases are very unlikely to be capable of being decided by even the most humane machine. This is true not only of the trial but of the procedural issues that have to be resolved before trial. In devising or reforming a legal system it is all too easy to underestimate the importance of the court having the appropriate powers. However, it is also too easy to make what should be a matter of common sense an unnecessarily complex process which can get in the way of providing justice.
So it is of considerable importance that the rules of procedure should avoid this risk by being as few and as broad as possible. In drafting the rules for the new Court, I wanted them to be also as sparse and as short as possible.
Let me illustrate what I mean by drawing attention to the broad approach adopted by the new Court’s procedural rules by setting the scene with the extent of its mission and jurisdiction. The mission of the AIFC Court (and IAC) is to become the leading court and dispute resolution centre for the resolution of civil and commercial disputes in the AIFC and the Eurasia region achieving a one-stop shop for litigation, arbitration and mediation. While promoting and making Kazakhstan and the AIFC the preferred destinations for doing business.
The AIFC Court will complement the jurisdiction of the domestic courts with their civil law system. But even parties with no connection with the AIFC can opt into its jurisdiction. So, it will enable parties irrespective of their geographic location by way of agreement in their contracts or separate agreements to give exclusive jurisdiction over their disputes to the AIFC Court.
The Procedural Rules of the AIFC Court clearly set out its overriding objective:
“1) The overriding objective of the Court and its Judges is to deal with cases justly.
(2) Dealing with cases justly includes, so far as practicable:
(a) ensuring that the system of justice is accessible and fair;
(b) ensuring the parties are on an equal footing;
(c) ensuring that litigation takes place expeditiously and effectively, using no more resources than is necessary;
(d) dealing with cases in ways that are proportionate to the amount of money involved, the importance of the case, the complexity of the issues, facts and arguments, and the financial position of each party; and
(e) making appropriate use of information technology.
There are other more specific rules, but they are doing no more than amplifying or illustrating the general rules that I have specifically quoted. They give the Court’s judges the wide discretion they need to do justice in the individual case. That they will do this in practice I do not doubt. The judges are amongst the most experienced and distinguished judges from the common law world. They have global reputations for absolute independence, impartiality, integrity and incorruptibility. They will ensure the Court meets the expectations of the international business community by ensuring provision of predictable legal protection in a timely manner.
The fact that changes were made to the Constitution of Kazakhstan to enable the Court and the IAC to be established has underlined the integrity of these novel institutions of Kazakhstan. This is also demonstrated by the close relationship that has been developed between the judiciary of the Supreme Court and AIFC Court.
Although the AIFC Court and the IAC have now been established, there is bound to be a lapse of time before a caseload could be expected to be created. The time lapse has enabled the IT systems which are required for the successful operation of the Court and IAC to be fully installed after being carefully tested.
During the interim period while the Judges are not required to spend the majority of their time deciding cases, good use has been made of their experience to promote the education of students and other young lawyers. Their enthusiasm for the lectures and mock trials involving the judges has been inspiring. It can be justifiably claimed that the introduction of these two specialist bodies has been a demonstration of importance of the rule of law.
The fact that the Court has extremely wide rights of audience so that all lawyers with a professional or advocacy practice certificate from anywhere around the world are able to register with the AIFC Court will expose Kazakhstan students and lawyers to developments in many other jurisdictions.
I have no doubt that with the passage of time the Court and IAC will become testimony to the total commitment of the Republic of Kazakhstan and its legal institutions to the rule of law. They will be its standard bearer.
A speech by The Right Honorable The Lord Woolf Order of the Companions Honour
at M. Narikbayev KazGUU University on 17 September 2019 in Nur-Sultan, Kazakhstan.