Valikhan Shaikenov

Acted as an arbitrator in an ad hoc arbitration under the UNCITRAL Arbitration Rules, seated in Geneva, involving a dispute between a UK and a Spanish companies regarding the supply of radars and related services for a large-scale project in Iraq. The dispute centered on the interpretation of contractual obligations related to the delivery and legalization of critical customs documentation for the radars. The arbitration involved complex claims, counterclaims, and the termination of a contract, with issues of contractual performance, legal document compliance, and compensation for delays and damages.

Acted as an arbitrator in a dispute seated in London under the 2020 LCIA Rules between a major Brazilian agricultural cooperative and one of the world’s largest exporters of potash fertilizers from Belarus. The dispute arose from a cross-border supply under two contracts governed by English law. Two arbitration proceedings under the LCIA Rules were consolidated into one. The case was further complicated by the application of sanctions.

Appointed as an arbitrator in a dispute seated in Washington, D.C., under UNCITRAL ad hoc rules, arising from a consultancy contract with a development bank for providing technical and administrative assistance in the waste management sector in Somalia. The contract was governed by New York law.

Acted as an arbitrator in a dispute seated in London under the 2020 LCIA Rules between a Swiss seller and an Uzbek buyer, arising from an English law-governed contract for the international supply of bitumen.

Represented a major Azerbaijani construction company (contractor) in an international commercial arbitration in Stockholm under the SCC Rules against the Republic of Kazakhstan (employer) concerning a contract for the reconstruction of a large road project financed by the EBRD. The contract is based on the FIDIC model rules. The dispute involved various issues, including force majeure related to the COVID-19 pandemic, challenging the engineer’s decision, employer’s fault in construction delays, and other contested matters.

Represented as a co-counsel a large European contractor in a Stockholm-seated arbitration under the SCC rules the employer concerning a contract for a large road reconstruction financed by the EBRD. The contract was based on the FIDIC Red Book Conditions. The dispute arose concerning non-payment of amounts certified by the engineer under the contract. The main issues in dispute were concerned with the contract price escalation provisions, specifically, the base value for a material to apply the formulae prescribed by those provisions.

Represented a top ten largest Kazakhstan bank in a London-seated evidence-heavy commercial arbitration under the UNCITRAL Rules in a professional negligence dispute with the bank’s former consultants, which arose under the Kazakh, English, and the US laws, and was based on allegedly futile promises given by the consultants.

Representing a major mining company in an international commercial arbitration under the AIFC Rules involving a complex dispute with extensive evidence and numerous counterclaims. The dispute concerns the quality of supplied equipment and requires multiple complex technical expert examinations to establish the causal link between the defective equipment and fires in the mines, which potentially causes multimillion-dollar damage to our client.

Represented a major Kazakh telecommunications company in an international commercial arbitration under CIETAC Rules, seated in Beijing. The dispute arose from a sales contract for LiDAR equipment for the construction of a toll road. The case involved complex legal issues concerning the interpretation of Hong Kong and PRC law, particularly with regard to the contract’s purpose, delivery timelines, and the choice of governing law.

Advised subsoil users in an international commercial arbitration related to claims by the Republic of Kazakhstan amounting to billions of US dollars. The dispute involved the qualification of legal relations under a Production Sharing Agreement (PSA) for the development of a major oil and gas field and included complex issues of applying Kazakh law and international practice. We developed a defense strategy based on the qualification of the inherently complex nature of the disputed relations, as well as a detailed analysis of the work program and the parties’ obligations.

Provided expert support to a consortium of foreign investors exploring an oil and gas field in Kazakhstan concerning an ongoing pricing dispute under a gas sale and purchase agreement related to a supply of gas from a major field in Kazakhstan. The dispute was triggered by the significant increase of the trunk gas pipeline transportation tariff imposed by the Kazakhstan government, which, in turn, dramatically affected the price for gas supplied under the agreement.

Provided expert to a European group of construction companies concerning issues under a contract to execute a project known as Western Europe-Western China International Transit Corridor. The contract was based on the FIDIC Pink Book Conditions, and the main issues were concerned with: (1) the contract consequences triggered by sudden depreciation of the Kazakhstan currency (Tenge); (2) the contract price escalation provisions and the employer’s refusal to pay additional escalation amounts due to the absence of approved budget; (3) legal qualification of the engineer’s instruction on changing the amount of the performance guarantee and subsequent refusal of the employer to confirm such a change. We have also advised the client on the validity and effectiveness of the arbitration clause in view of the fact that the Particular Conditions did not contain a clear choice of arbitration rules, arbitral institute, and seat of arbitration.

Prepared an expert opinion in an arbitration proceeding under the AIFC Rules, arising from complex legal relations involving an intermediary in the supply of unique and expensive drilling equipment manufactured by a Scottish company to a Kazakh geological exploration company. The dispute concerns the qualification of the relationship arising from two seemingly unrelated supply contracts, which included a buyback clause for unused equipment, as a commission agreement. The case is further complicated by the application of sanctions regulations.

Provided expert support in connection with a Dubai-seated arbitration to global multidisciplinary management, engineering, and development consultancy on a series of disputable matters related to construction under a FIDIC-based contract (Yellow Book) of a major mixed-use development located in Astana, Kazakhstan. The controversial issues involved intricate questions of contract law, construction, licensing, project management, and engineering-related regulation.

Provided expert support in connection with a London-seated arbitration to a US mining company on questions of subsoil use and securities regulation laws. The dispute arose out of share issuance allegedly made without required permissions from Kazakhstan authorities. Our detailed analysis and perspective arguments to support the client’s position allowed the leading counsel to secure a favorable settlement agreement.

Provided expert support in connection with a Paris-seated arbitration to an Austrian plant engineering group of companies concerning various contentious matters under a FIDIC-contract (Yellow Book) for the design, manufacture, supply, and installation of the electromechanical equipment for a hydropower plant in Kazakhstan operated by a Kazakh entity owned by the Republic of Kazakhstan. We advised the client concerning design liability issues under Kazakh law. Specifically, our analysis concerned whether the client was to be treated as a designer in the capacity of a Kazakh licensed designer or as a designer of rough draft/ sketch of design documentation which did not fall under the Kazakh statutory licensing requirements. Our legal opinion proved helpful during the arbitral hearings, according to the client.

Provided pre-arbitration advice to a notable European stakeholder in the international energy industry with a regional focus on the North Sea, North Africa, and Southeast Asia concerning an agreement on exploration of an oil and gas field in the Russian Federation. Specifically, the complex analysis concerned whether the terms of contract had a binding effect and constituted obligations as a matter of Kazakh law for our client to invest hundreds of millions of dollars into the project. Our analysis offered a fundamentally new perspective of the contract’s nature, and its practical consequences compared to the initial assessment of the client, potentially saving the client over half a billion US dollars.

Acted as an investor-appointed expert witness in Aktau Petrol Ticaret AS v. Republic of Kazakhstan (ICSID Case No. ARB/15/8). The scope of questions encompassed complicated issues of the Kazakh procedural and substantive law, as well as enforcement proceedings in the context of alleged denial of justice and judicial expropriation (“by executive action” – namely the action of court bailiffs). In its final award, the tribunal agreed with the investor-appointed experts on every disputable question of Kazakh law and decided the case in favor of the investor.

Provided continued expert advice to investor’s counsel on various issues of Kazakh law, including the interpretation of controversial provisions of the 1994 Foreign Investments Law of the Republic of Kazakhstan, in support of the underlying Ruby Roz Agricol LLP v. Kazakhstan UNCITRAL investment arbitration and the ensuing set aside proceedings before the English courts.

Provided comprehensive legal advice to two major Turkish construction companies regarding a potential investment arbitration worth ten of millions of dollars, arising from a construction dispute under a FIDIC-based contract with the Republic of Kazakhstan. The case was heard in commercial arbitration in Paris under ICC Rules and in Kazakh courts.

Prepared several expert opinions on Kazakh law for the Supreme Court of the State of New York in a case involving the alleged wrongful transfer and misappropriation of assets worth over USD 100 million, which reportedly caused significant losses to the plaintiffs. The key issue concerned a series of transactions between 2002 and 2004, during which the company’s valuable assets were allegedly transferred to another party, leading to the company’s bankruptcy. It was claimed that these actions were part of a scheme aimed at benefiting the defendants. The expert opinions addressed issues of the statute of limitations under Kazakh law and various remedies available under Kazakh law. Additionally, the opinions clarified differences between Kazakh legal concepts and common law and equity concepts (such as constructive trust, unjust enrichment, and other remedies). The US court agreed with our findings and dismissed the claim.

Acted as a claimant-appointed expert in the English court in Rosdale Pte Limited v Degevol UK Limited (Comm). The dispute concerned recovering Kazakh mining assets that had been allegedly misappropriated by the companies’ former directors and controllers. The case was settled shortly after submitting the claimant’s expert witness statement.

Provided expert support to the counsel of VakifBank, the second-largest bank of Turkey, on complicated questions of cross-border restructuring within JSC BTA Bank & Anor v Tyrkiye Vakiflar Bankasi TAO [2018] EWHC 835 (Comm) (17 April 2018). The advice concerned the legal effect of the restructuring in the UK, Turkey (through recognition), and Kazakhstan. Among other legal questions, the advice involved intricate issues of private international law, including those related to altering parties’ rights to a contract initially governed by English law through a restructuring procedure governed by Kazakh law. The expert advice contributed to the client challenging the English court’s jurisdiction. The English High Court of Justice rendered the judgment on satisfying the client’s application.

Acted as a defendant-appointed expert in Anara Esim Frank vs. Robert Harrison Frank, as executor of the estate of Norman Daniel Frank II Family Trust heard by the 430th District Court, Hidalgo County, Texas, USA (Case No. C-2416-13-J). The affidavit of expert opinion concerned the complicated questions of the Kazakh family and inheritance laws and the choice-of-law issues. The parties settled the dispute.

Provided expert support in preparation for the commencement of court proceedings in New Zealand on recovery of debt arising from breach of profit-sharing obligations under a Simple Partnership Agreement. The extensive expert advice concerned various substantive and procedural law aspects of the contentious matter, involving the analysis of a prior Kazakhstan law judgment on the subject, summary judgment perspective in New Zealand, and other alternative strategies. The advice allowed the leading counsel to develop an optimal case strategy for defending the client’s interest.

Issuing expert opinion for the Constitutional Court of the Republic of Kazakhstan on the unconstitutionality of Article 11-1 of the 2011 Law “On State Regulation of Production and Turnover of Certain Types of Petroleum Products” in view of the amendments introduced in December 2022. The opinion considered both the substance of the new disputable regulations and the procedural compliance in adopting the amendments.

Represented a consortium of major international banks and investment funds, including Deutsche Bank, Merrill Lynch, Goldman Sachs, and others, in Kazakh courts in a four-year litigation concerning a debt restructuring dispute worth hundreds of millions of dollars. The case involved complex issues related to the restructuring of a major financial institution’s debt and was ultimately settled.

Represented a major Kazakh developer in a dispute arising from two construction contracts for the development of two schools with a total value of USD 30 million against the employer. The dispute concerned the causes and consequences of delays in the commissioning of the projects, the employer’s fault, the contractor’s liability, defense against the enforcement of bank guarantees, and other contentious issues. The dispute was resolved through a settlement agreement.

Successfully represented a consortium of major Italian and Kazakh construction contractors in a unique dispute before the AIFC Court (Astana International Financial Centre Court) regarding a FIDIC-based construction contract against the national road management operator (employer). The dispute concerned the conversion of a Dispute Board decision into an arbitral award, making the decision final and binding without the possibility of further appeal. The AIFC Court judge, Lord Mance (former Deputy President of the UK Supreme Court), granted our application to consolidate two proceedings involving counterclaims and resolved the dispute in favor of our clients for around USD 10 million.

Acted as an independent expert before the AIFC Court in a case involving a USD 5 million claim for breach of a Separation and Release of Claims Agreement. The key issue was the application of Article 297 of the Kazakh Civil Code concerning the reduction of contractual penalties. Judge Sir Rupert Jackson (retired Court of Appeal judge of England and Wales) agreed with our expert opinion on all contested issues, and the court partially ruled in favor of the claimant. Our 40-page report became the foundation for the interpretation of Article 297 in the AIFC Court, setting a precedent for future application of similar provisions.

Upond the request of a Swiss investor, issued an expert opinion in a Kazakh court proceeding concerning the invalidation of an auction protocol for the sale of an oil refinery complex in the Turkistan region. The dispute involved errors in the asset valuation and challenges to the sale agreement concluded with the auction winner. We prepared an expert opinion on key issues of Kazakh law, including the legal qualification of transactions conducted within the bankruptcy procedure.

Advised international development banks (EBRD, EDB, and IsDB) on various aspects of the development and financing of the US$750 million Big Almaty Ring Motor Road (BAKAD). The BAKAD project is one of the Kazakhstan government’s most significant non-oil infrastructure public-private partnership projects financed by the private sector.

Advised a foreign investor on controversial Kazakh and choiceof-law law issues arising from the construction of the trunk and flow pipelines under an EPC contract at a large Kazakhstan oil and gas field.

Assisted a large Swiss oil service company with drafting a contract on construction of facilities at a major Kazakhstan’s oil and gas field and adjusting FIDIC-based contract terms (Red Book) to the Kazakhstan local requirements.

Advised a Korean construction company on controversial issues related to constructing and commissioning a gas-filling compressor station.

Advised major Korean construction companies and banks on developing and financing the Apple Town residential complex in Almaty. The project is a huge elite multifunctional complex located on 27 hectares.

Advised the Russian Federation, as a leading transactional counsel on Kazakh law, in connection with the acquisition from the Sultanate of Oman of participation interests in the Caspian Pipeline Consortium (CPC), the most important oil transportation route in the Caspian – Black Sea Region.

Advised Atomredmetzoloto JSC, one of the world’s largest uranium mining companies, in connection with the acquisition of the group of companies in the nuclear energy industry (Akbastau JSC and Karatau LLP).

Advised a foreign investor on the issues relating to a company incorporation and participation in a Kazakhstan-Russian intergovernmental agreement.

Advised a large media holding company in an intragroup transaction to change the Kazakhstan business owner.

Legal support in the Kazakhstan portion of a global business pision project for a major US-based transnational IT company.

Provided ongoing advice to the ExxonMobil group of companies concerning their projects in Kazakhstan.

Provided extensive and ongoing expert advice to Chevron and Tengizchevroil (a joint venture between Chevron, ExxonMobil, KazMunayGas and LukArco) on subsoil use and environmental law, foreign investments, export of crude oil, corporate, and tax law issues.

Advised EuroChem Mineral and Chemical Company, the largest manufacturer of mineral fertilizers in Russia, on subsoil use and corporate law issues.

Advised several major foreign banks on a broad range of issues pertaining to the derivative transactions regulation and issued legal opinions concerning the enforceability of certain provisions of the ISDA Master Agreement and ISDA Credit Support Annex and different aspects of applying netting, set off, and other procedures.

Represented a large UK bank in the rehabilitation procedure of one of the largest Kazakhstan agricultural organizations, to secure the lender’s rights under the credit facility and hedging transactions.

Advised a large Australian bank on a gold trading transaction with the National Bank of Kazakhstan.

Advised one of the world’s largest international payment systems on a broad range of issues pertaining to its activities involving services to local financial institutions.

Advised Banque Cantonale de Genève (BCGE) in connection with its projects in Kazakhstan.

Advised Deutsche Bank on matters related to debt securities issuance and placement.