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First published in the 1LoD Global Benchmarking Survey & Annual Report 2019
On 1 January 2018, the Central Asian republic of Kazakhstan inaugurated Astana’s International Financial Centre (AIFC).
The establishment of the AIFC is one of the key steps of the National Plan - "100 Specific Steps to Implement the Five Institutional Reforms of the Head of State" - aimed at diversifying the economy and developing the country's financial sector and will be the first time that a common law framework has been introduced in the post-Soviet region.
The AIFC is underpinned by an ambitious objective to become the financial hub for Central Asia, the Caucasus, Eurasian Economic Union, the Middle East, and Europe. The new financial centre is positioning itself to attract US$ 40 billion of investments by 2025 and ensure about 1 per cent growth in the carbonless GDP of Kazakhstan. Kazakhstan is the largest and most oil rich country in Central Asia.
The governing law of the AIFC is based on the Constitution of Kazakhstan and has a special legal regime, consisting of the AIFC Constitutional Law “On the Astana International Financial Centre” (the Law), its own independent judicial system and jurisdiction based on English common law and standards of leading international financial centres. The official language of the AIFC is English.
Like its neighbouring financial free zone the Dubai International Financial Centre (DIFC) (whose Courts were selected to advise the Kazakhstan Central Bank on establishing the AIFC’s commercial court and arbitration centre), the AIFC has its own specific legislation to address issues arising in the context of companies, contract, implied terms, obligations, damages and remedies, employment and partnership law.
It is reported by the Prime Minister of Kazakhstan that a total of 30 general-purpose AIFC Acts and 17 financial services regulation acts were developed and subsequently adopted by the relevant bodies of the AIFC. About 50 acts constitute the legislative framework of the AIFC.
The Astana financial services authority (AFSA) was launched on 1 January 2018 as the independent regulator of the AIFC.
The AFSA is the regulator of both financial and non-financial services activities. It regulates Centre Participants1 carrying out financial and ancillary services and capital markets activities within the AIFC. The AFSA is also the regulator of companies registered by the AFSA that carry out non-financial services activities.
The AFSA CEO, Stephen Glynn, was for 13 years a member of the executive team responsible for the development of the regulatory framework of the DIFC.
The AIFC Court provides a common law court system for the first time in the region.
The AIFC Court is established as an independent legal entity in the AIFC territory pursuant to the Law. The AIFC Court is separate and independent from the courts of the Republic of Kazakhstan and consists of two tiers: (i) a Court of First Instance, which includes a specialist Small Claims Court to determine claims up to a value of US$ 150,000, and (ii) a Court of Appeal.
The Court has jurisdiction in relation to disputes arising between AIFC participants, disputes relating to business carried out in the AIFC and regulated by the laws of the AIFC and any disputes transferred to the AIFC Court by agreement of the parties. As with the Courts of the DIFC, this means that parties with no connection to the AIFC may “opt in” to the jurisdiction of the Court by agreeing to give the Court jurisdiction pre or post-dispute. The Court does not have jurisdiction in relation to any disputes that are of a criminal or administrative nature.
There are wide rights of audience. All lawyers with a professional lawyer or advocate practising certificate from anywhere in the world are eligible to register with the AIFC Court Registry to represent parties in cases before the AIFC Court.
The Chief Justice of the Court is the Rt. Hon. The Lord Woolf CH. Lord Woolf is supported by eight other judges.
The international arbitration centre (IAC) provides an alternative to court litigation and has its own panel of international arbitrators and mediators as approved by the Chairman of the IAC.
Parties may agree for the IAC to:
In October 2017, the Board of Directors of the AIFC resolved to create the Astana International Exchange (AIX), the Stock Exchange of the AIFC. It is envisaged that the AIX will play a central role in developing the region’s capital markets given Kazakhstan’s extensive program of privatisation of public state-owned companies, such as the national oil and gas company, railway operator, postal service, air carrier, mining companies and the world’s largest uranium producer. The main strategic partners of the AIX are the Shanghai Stock Exchange (which owns a 25.1 per cent stake) and NASDAQ, which provides a technical platform. The Shanghai Stock Exchange and NASDAQ are among the five largest exchanges in the world.
As of late February 2018, the AIFC Financial Services Regulatory Committee had registered 10 companies as AIFC participants, including China Development Bank. However, the Governor of the AIFC, Kairat Kelimbetov, has said that "[i]n general, it is planned that by the end of 2018, about 100 companies will be registered."
According to Mr Kelimbetov, the AIFC has raised active interest among potential investors and will act as a modern high-tech infrastructure, with a favourable jurisdiction providing all the necessary conditions for attracting both direct and portfolio foreign investments
There are 6 “major strategic directions for the development of the AIFC”:2 capital markets, asset management, private banking, FinTech, green finance and, in particular, Islamic finance.
In addition to Chinese investment through the Shanghai Stock Exchange’s 25.1 per cent stake in the AIX, it is thought that Islamic financing will play a central role in attracting funds with such financing envisaged to account for roughly one fifth of total investments. Indeed, AFSA was recently accepted as a full member of the Islamic Financial Services Board (IFSB)3 and the Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI)4. The AIFC will host the 14th World Islamic Economic Forum (WIEF) on 4 July 2018.
Around three quarters of Kazakhstan’s population of 17 million are Muslim, but development of Islamic finance has traditionally been slow due in part to regulatory hurdles. However, it was recently reported5 that the AIFC expects the government to issue Islamic bonds, or sukuk, in coming months as part of efforts to develop further Islamic finance business in the central Asian country. It was said that final legislative changes to allow the issuance of sovereign sukuk are nearly complete, alongside registration of a special purpose vehicle by the Ministry of Finance. An issuance of sovereign sukuk is planned in the first half of 2018 with a total value of up to US$ 300 million.
To support this key strategic direction, the first meeting of the Advisory Council on Islamic Finance (ACIF) under the AIFC was held on 1 March 2018. It is said that ACIF members will provide “expert opinion on AIFC legal documents in the field of Islamic finance, assist in attracting the world's leading Islamic financial institutions as well as investors gaining interest in becoming the part of AIFC and to provide consultations on the policy and strategy for the development and promotion of AIFC as a regional hub for Islamic finance.”6
In his opening remarks the Governor of the AIFC noted that the centre aims to create “favourable conditions for the development of Islamic finance in Kazakhstan.” He also emphasised that one of the main goals of the AIFC is to become a regional centre for Islamic finance within the Commonwealth of Independent States (the CIS)7 and Central Asia.
The creation of the AIFC is a significant development and laudable achievement of the Kazakhstan government. Its commitment to the principles of English common law and international standards should position and promote the AIFC as a stable, transparent and reliable international financial centre and assist with its objective to become the premier financial hub in the region.
The appointment as Chief Justice of one of the most eminent and respected English judges suggests a real commitment to the development and operation of a common law court underpinned by the highest judicial standards; such commitment will further assist in meeting this objective.
It remains to be seen what, if any, competitive advantages the AIFC will have over other international financial centres operating in the region. Observers, commentators and participants will no doubt watch with interest as to what impact the AIFC, its Courts and arbitration centre have on the business of its neighbouring international financial centres, such as those located within the DIFC and Abu Dhabi Global Market.
Institutions registered and licensed by AFSA are referred to as 'Centre Participants'.
Based in Kuala Lumpur, the IFSB is an international body that sets standards and offers guidance for Islamic banking and finance, regulatory and supervisory agencies.
The AAOIFI is a Bahrain based not-for-profit organization established to maintain and promote Shariah standards for Islamic financial institutions and participants.
Reuters, 6 March 2018
A confederation of nine member states and two associate members. Located in Eurasia (primarily in Central to North Asia) the CIS was formed during the dissolution of the Soviet Union. Members were all former Soviet Republics.
First published in the 1LoD Global Benchmarking Survey & Annual Report 2019
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