In our earlier analysis, “Clash of jurisdictions – AIFC Court recognises an ICC award despite opposing Russian anti-arbitration injunction”, we discussed the AIFC Court’s 15 May 2026 decision in National Joint Stock Company “Naftogaz of Ukraine” JSC v Gazprom PJSC, Case No. AIFC-C/CFI/2026/0002.
The case was remarkable not only because of the size of the award — more than USD 1.4 billion — but also because the AIFC Court recognised and ordered enforcement of a Swiss-seated ICC award despite the geopolitical sensitivity of the dispute and parallel Russian anti-enforcement measures.
Only twelve days later, however, the AIFC Court reached the opposite jurisdictional conclusion in Posco Co. Ltd. v Republican State Enterprise “National Centre for Complex Processing of Mineral Raw Materials of the Republic of Kazakhstan”, Case No. AIFC-C/CFI/2025/0066. In that case, Justice Sir Rupert Jackson held that the AIFC Court had no jurisdiction to entertain an application for recognition and enforcement of a foreign ICC award seated in Zurich, unless the case fell within the jurisdictional heads of Article 13 of the AIFC Constitutional Statute.
The two decisions now sit uneasily beside each other. They concern the same basic question: can the AIFC Court recognise and enforce foreign arbitral awards that were not rendered under the auspices of the AIFC International Arbitration Centre and where the parties have not otherwise agreed to AIFC Court jurisdiction?
The Naftogaz decision: a broad pro-enforcement approach
In Naftogaz v Gazprom, Justice Andrew Spink KC granted Naftogaz’s without-notice application for recognition and enforcement of an ICC award dated 16 June 2025. The award had been rendered in ICC Case No. 27245/GL/DTI by a tribunal seated in Switzerland. The AIFC Court ordered that the award be recognised and enforced and that Gazprom pay, among other sums, USD 1,134,843,398 in principal, substantial interest, and arbitration costs.
The jurisdictional question was expressly addressed. Justice Spink noted that Article 14(4) of the AIFC Constitutional Statute appeared, in the English version on the AIFC website, to refer only to awards of arbitration courts “in the Republic of Kazakhstan”. Naftogaz argued that this translation was wrong and that the correct translation was broader: recognition and enforcement of arbitral awards “in the territory of the Centre” should be carried out in accordance with Kazakh law.
The Court did not finally resolve the translation issue. Instead, it relied principally on Article 40(3) of the AIFC Court Regulations and Article 45(1) of the AIFC Arbitration Regulations. The latter provides that an arbitral award, “irrespective of the state or jurisdiction in which it was made”, shall be recognised as binding in the AIFC and may be enforced upon written application to the AIFC Court. On that basis, the Court concluded that it had jurisdiction to make the order sought.
The Naftogaz order was procedurally important because it was made without notice. Justice Spink expressly emphasised that his reasons were preliminary and that Gazprom could apply to set the order aside within 14 days of service. The order also stayed enforcement until the expiry of that period or, if an application was made, until that application had been finally disposed of.
The political reaction: Kazakhstan’s Ministry of Justice rejects “transit” enforcement
Following the Naftogaz decision, Kazakhstan’s Minister of Justice, Yerlan Sarsembayev, publicly stated that the AIFC Court’s decision would not be enforced in Kazakhstan. Kazinform reported on 25 May 2026 that the Minister said the decision recognising the arbitral award in the Gazprom–Naftogaz dispute “will not be enforced on the territory of Kazakhstan”.
Several outlets reported the same statement by reference to an interview with Zakon.kz. According to those reports, the Minister stated that Kazakhstan would not become a “transit venue” for enforcing decisions lacking a legal nexus with Kazakhstan, and that the country’s legal mechanisms do not provide for adjudication of disputes falling outside its jurisdiction.
The Minister’s comments are significant because they foreshadow the reasoning later adopted in Posco: Gazprom was not an AIFC participant, the underlying transaction was not concluded in the AIFC, the dispute was not governed by AIFC law, and the parties had not agreed to refer recognition and enforcement to the AIFC Court.
The Posco decision: Article 13 as the jurisdictional limit
In Posco v National Centre, the claimant sought recognition and enforcement of a different ICC award, also seated in Zurich. The award arose out of a 2013 loan agreement under which Posco had lent USD 25 million to a Kazakh state-owned enterprise. The ICC tribunal issued its final award on 28 October 2022, ordering repayment of the principal, interest and costs.
Before turning to the AIFC Court, Posco had attempted to enforce the award before the Almaty Specialised Interdistrict Economic Court. Those attempts were returned or rejected on procedural grounds, including issues relating to certified translations and proof that the debtor had received the award. Posco therefore commenced proceedings before the AIFC Court.
Unlike Naftogaz, Posco faced an adversarial hearing. The defendant appeared, filed objections, and argued that the AIFC Court lacked jurisdiction. Justice Sir Rupert Jackson accepted that argument.
The Court held that Article 13(4) of the AIFC Constitutional Statute did not confer jurisdiction: the defendant was not an AIFC participant, the dispute did not relate to activities conducted in the AIFC and governed by AIFC law, and the parties had not agreed to submit the matter to the AIFC Court.
Justice Jackson accepted the broader translation of Article 14(4) relied upon in earlier cases, but held that the provision did not create a free-standing worldwide jurisdiction to recognise and enforce foreign arbitral awards. In his view, Article 14 concerns the AIFC International Arbitration Centre, and Article 14(4) must be read in that context. It could not silently expand the Court’s jurisdiction beyond the exhaustive heads in Article 13.
The Court also rejected reliance on Articles 45–47 of the AIFC Arbitration Regulations and Article 40 of the AIFC Court Regulations. Those instruments are subordinate legislation and could not, in Justice Jackson’s view, enlarge the jurisdiction conferred by the Constitutional Statute. The Court therefore dismissed Posco’s claim.
Similarities between the two cases
The structural similarities are striking.
Both cases concerned foreign ICC awards seated in Zurich, Switzerland. Both claimants sought recognition and enforcement before the AIFC Court rather than relying exclusively on the ordinary Kazakh courts. Both cases turned on the relationship between the AIFC Constitutional Statute, the AIFC Court Regulations, and the AIFC Arbitration Regulations. Both required the Court to address the difficult wording of Article 14(4) and its interaction with Article 13.
Both cases also raised a broader policy question: whether the AIFC Court can operate as an additional enforcement forum for foreign arbitral awards in Kazakhstan, or whether foreign-award enforcement remains primarily a matter for the ordinary Kazakh courts under the Civil Procedure Code and the New York Convention.
Differences between the two cases
The key difference is procedural. Naftogaz was decided without notice. Gazprom did not appear, and the Court itself stressed that its reasoning was preliminary. By contrast, Posco was fully argued at an oral hearing, with both parties represented. This allowed the jurisdictional objection to be tested in adversarial proceedings.
The second difference lies in the Court’s treatment of the hierarchy of norms. In Naftogaz, the Court treated Article 40(3) of the AIFC Court Regulations and Article 45(1) of the AIFC Arbitration Regulations as sufficient to establish jurisdiction. In Posco, the Court held that those provisions could not confer jurisdiction if the Constitutional Statute did not do so.
The third difference is the role of prior case law. In Naftogaz, earlier AIFC decisions such as Roads Department v Todini and Pacific Trade House v Altai Polymetals were treated as supporting a pro-enforcement approach. In Posco, Justice Jackson expressly held that those earlier cases, together with Naftogaz, were wrongly decided on jurisdiction because the point had not been fully argued.
Finally, the factual context differs. Naftogaz concerned a politically sensitive Ukrainian-Russian energy dispute and was followed almost immediately by public comments from Kazakhstan’s Ministry of Justice. Posco concerned a commercial loan dispute involving a Korean claimant and a Kazakh state-owned enterprise, with prior failed attempts to enforce before the Almaty court.
What happens next procedurally?
The Naftogaz order expressly gives Gazprom liberty to apply to set aside the recognition and enforcement order within 14 days of service. Until that period expires, or until any set-aside application is finally disposed of, enforcement under the order is stayed.
If Gazprom applies to set aside the order, the AIFC Court of First Instance would have to reconsider the matter inter partes. In light of Posco, Gazprom would have a powerful jurisdictional argument: that the AIFC Court lacks jurisdiction unless the case falls within Article 13(4) of the Constitutional Statute. If the Court follows Justice Jackson’s reasoning, the Naftogaz order may be vulnerable. If it follows Justice Spink’s reasoning, the conflict will remain.
In Posco, the claim has been dismissed. Posco’s route is therefore an application for permission to appeal. Under the AIFC Court Rules, an application for permission to appeal must generally be filed within the period directed by the lower court or, if no period is directed, within 21 days of the decision.
A unified decision can be expected only if the issue reaches the AIFC Court of Appeal, or if the Chief Justice or another Court of First Instance judge later resolves the conflict in a fully reasoned decision. At present, the two cases are not formally the same proceeding, and there is no indication that they have been consolidated. However, because both decisions turn on the same jurisdictional point, an appeal in Posco and any set-aside application or appeal in Naftogaz would naturally invite appellate clarification.
Outlook: an institutional question for the AIFC Court
The conflict between Naftogaz and Posco is more than a technical disagreement about statutory interpretation. It concerns the institutional role of the AIFC Court within Kazakhstan’s legal order.
A broad approach would make the AIFC Court an attractive common-law-style forum for recognition and enforcement of foreign arbitral awards, including awards with no substantive connection to the AIFC. A narrow approach confines the Court to the jurisdictional gateways in Article 13 and leaves foreign-award enforcement to the ordinary Kazakh courts unless the parties have agreed to AIFC Court jurisdiction or the dispute otherwise falls within the AIFC framework.
For now, practitioners should treat the issue as unsettled. The Naftogaz decision remains important, but its procedural posture makes it fragile. The Posco judgment is more fully reasoned on jurisdiction, but it is also a first-instance decision. Until the AIFC Court of Appeal gives authoritative guidance, parties seeking enforcement of foreign arbitral awards in Kazakhstan will need to assess carefully whether the AIFC Court is available at all — and whether the ordinary Kazakh courts may be the safer route.