Thus, in most of the rules of the leading arbitration institutions, the burden of proof of case circumstances (securing written and other evidence, involving witnesses, conducting expert examinations) lies on the parties themselves.[2] The tribunal, in its turn, has the right to oblige the parties to the process only to provide evidence, due to its limited competence arising from the arbitration agreement (clause) between the parties.[3]At the same time, the arbitral tribunal also has a duty to deal with the dispute fairly, with equal, impartial and independent treatment of the parties. Hence, the question arises: “What action should be taken by a party to the dispute if the evidence that the party wants to use is held by a third party who is not willing to provide it voluntarily?”.

Due to the impossibility of arbitrators to summon third parties (especially foreign nationals) to court and request evidence from them directly, they are forced to seek assistance from courts of general jurisdiction.[4] At the same time, it should be taken into account that the courts, in their turn, are not directly obliged to issue relevant procedural documents at the request of arbitral tribunal, which greatly complicates the request for evidence.

The “Astana” International Financial Centre (hereinafter “AIFC”) has an International Arbitration Centre (hereinafter “IAC”), which partially mitigates the disadvantage mentioned above. In particular, an arbitral tribunal or a party who has obtained the approval of the arbitral tribunal[5] may apply to the AIFC Court for assistance in obtaining evidence.

The AIFC Court may execute the request to obtain evidence within its jurisdiction and in accordance with the rules on obtaining evidence.[6] At the same time, the AIFC court shall have the power to take all necessary or expedient measures for the proper consideration of the dispute, including, but not limited to, requiring the presence of a person to provide evidence or the production of items by a person, records, documents or materials in electronic or other form in its possession or control.[7]

Thus, the IAC has the ability to request evidence and secure a an appearance of the witness before the tribunal via the AIFC Court. However, what is the distinct advantage of the IAC over other arbitral institutions that are also entitled to make such requests?

The main advantage of IAC requests to the AIFC Court is the greater possibilities for cross-border reclamation. In particular, the AIFC court orders have the same legal force as the AIFC court decisions,[8]and enforcement thereof in the Republic of Kazakhstan is carried out in the same manner and under the same conditions as enforcement of judicial acts of general jurisdiction courts of the Republic of Kazakhstan. Consequently, it can be assumed that judicial acts of the AIFC court are equal to judicial acts of the courts of general jurisdiction of the Republic of Kazakhstan.[9]

Kazakhstan is a party to numerous multilateral and bilateral international treaties on legal assistance, such as the Minsk Convention[10], the Kishinev Convention[11], the Agreement on the Procedure for the Settlement of Disputes Related to Economic Activities, the Treaties of the Republic of Kazakhstan with the People's Republic of China, the United Arab Emirates, India, Georgia, Central Asian countries and other states.[12]

Therefore, we believe that the effect of multilateral and bilateral treaties with the participation of the Republic of Kazakhstan on legal assistance extends to the procedural documents of the AIFC Court. Thus, the interaction between the IAC and the AIFC Court greatly simplifies the request for evidence and third party appearances as compared to other arbitration institutions in the region, significantly simplifying arbitration proceedings for parties as well as the tribunal.