KAZAKHSTAN: A CASE STUDY IN STATE SUCCESSION TO INVESTMENT TREATIES

Abstract

Two arbitral cases were initiated against Kazakhstan on the basis of the 1989 Agreement between the Government of Canada and the Government of the Union of Soviet Socialist Republics for the Promotion and Reciprocal Protection of Investments. The tribunal of the first case (World Wide Minerals v. Republic of Kazakhstan) determined that Kazakhstan was a legal successor to the Canada-USSR BIT and found breaches of fair and equitable treatment. While in the second case (Gold Pool Limited Partnership v. Republic of Kazakhstan) the tribunal rejected the claimant’s argument that the Canada-USSR BIT was applicable to Kazakhstan. Since the decisions in these two cases have not been published, there is currently speculation that investors from other states besides Canada can take advantage of the Soviet Union’s treaties, even if there is no treaty in force with Kazakhstan. Thus, the aim of this paper is to show the legal framework and practice for treaty-making related to investment in Kazakhstan both pre-and post- collapse of the Soviet Union. In particular, this paper examines the relevant international treaties, diplomatic notes, intergovernmental-level statements regarding the succession to the USSR treaties, and the USSR and Kazakh Soviet Socialist Republic investment legislations. It also provides recommendations for the future development of state succession and investment treaties.