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DECISION OF ECONOMIC COURT OF COMMONWEALTH OF INDEPENDENT STATES

of December 14, 1994 No. 03/94

About inadequate accomplishment by the Government of the Republic of Kazakhstan Agreements of February 9, 1992

Board of Economic Court of the Commonwealth of Independent States as a part of the chairman - the judge Abdrakhmanov S. S., members of board - Bereziya A. E. judges., Kerimbayeva A. Sh., Kleandrova M. I., Simonyana G. V. in case of Fighting S.V.'s secretary,

having considered in open session case on the statement of the Government of the Republic of Belarus on inadequate accomplishment by the Government of the Republic of Kazakhstan of the Agreement of the February 9, 1992 concluded between the Government of the Republic of Kazakhstan and the Government of the Republic of Belarus

having heard the judge-speaker Simonyan G. V., the representative of the Government of the Republic of Belarus Bobkov V. A., specialist in the field of international law Fisenko I. V., witnesses and having estimated case papers in total,

established:

The government of the Republic of Belarus appealed to Economic Court of the Commonwealth with the statement that the Government of the Republic of Belarus and the Government of the Republic of Kazakhstan signed on November 20, 1991 the Agreement on the principles of trade and economic cooperation. In development of this Agreement between Gorizont production association and corporation of the Kazakh electrotechnical and machine-building enterprises ("KEMPO") the Agreement of February 9, 1992 approved by the vice-chairman of Council of Ministers of the Republic of Belarus Kostikovy N. N. and deputy prime minister of the Republic of Kazakhstan Baykenovy K. K. Ispolnitelyami of the Agreement is signed were determined from the Republic of Belarus ON "Horizon", from the Republic of Kazakhstan KEMPO corporation and Ala Tau production association.

According to the Agreement of February 9, 1992 between ON "Horizon" and KEMPO corporation the agreement N 70/40-477, according to which ON "Horizon" was signed delivered to the Republic of Kazakhstan 4464 sets of television blocks and details for total amount 483, of 1 million Russian rubles, the KEMPO corporation, in turn, delivered to the Republic of Belarus 204 tons of polystyrene on the amount 138, 2 million Russian rubles and paid 20 million Russian rubles for part of the delivered products. However since August 1, 1993 the KEMPO corporation stopped accomplishment of the obligations and payment for the delivered products made short therefore there was debt on the amount 386, 4 million Russian rubles.

Due to the specified circumstance the Government of the Republic of Belarus asks Economic Court to take measures to accomplishment by the Government of the Republic of Kazakhstan of the intergovernmental agreement of February 9, 1992.

In court session the representative of the Government of the Republic of Belarus supported the requirements stated in the application of the Government.

The government of the Republic of Kazakhstan of the representative for participation in judicial session did not direct and did not submit the documents requested by Court. At the same time in the written messages Government of the Republic of Kazakhstan does not dispute the fact of improper execution by KEMPO corporation of the agreement obligations of February 9, 1992, but specifies that this dispute can be solved in all-civil procedure without appeal to Economic Court of the Commonwealth.

Court, being guided by Item 8.24 of Regulations of Economic Court, recognized that absence of the representative of the Government of the Republic of Kazakhstan does not interfere with consideration of the case, and available Vessels documents are essentially sufficient for decision of the declared requirements.

The court considers that requirements of the Government of the Republic of Belarus about default on obligations, accepted by the Government of the Republic of Kazakhstan according to Item 2.2 of the Agreement of February 9, 1992, are reasonable on the following bases.

According to part two of article 32 of the Charter of the Commonwealth of Independent States and Item 3 of the Regulations on Economic Court of the Commonwealth the dispute resolution, the economic obligations arising in case of execution according to interstate, intergovernmental agreements belongs to maintaining Economic Court. According to Court, the Agreement of February 9, 1992 is the intergovernmental agreement of economic nature and is signed with the purpose of realization of provisions of the intergovernmental agreement of November 20, 1991 about the principles of trade and economic cooperation and intention of the Republic of Kazakhstan to organize own production of TVs of the Horizon brand, the consideration of the directions of cooperation fixed in the intergovernmental Protocol between the Industry ministry of Kazakhstan and the State committee of the Republic of Belarus on the industry and cross-industry productions of December 6, 1991 N 18-4/55.

The court notes that agreement parties of February 9, 1992 are the Government of the Republic of Belarus and the Government of the Republic of Kazakhstan. According to Item 1.3 of the specified Agreement the Government of the Republic of Belarus assumed liability to provide delivery to the Republic of Kazakhstan in 1992 of 30 thousand sets of television blocks and details, and the Government of the Republic of Kazakhstan according to Item 2.2 of the Agreement - to provide supply to the Republic of Belarus of different materials, including polystyrene in number of 3 thousand tons. Besides, the Governments undertook to provide implementation of the Agreement by the conclusion of contracts between the companies and the organizations of the republics that was reflected in the last Section of the Agreement. ON "Horizon" and KEMPO corporation in pursuance of the Agreement of February 9, 1992 signed on February 19, 1992 the agreement N 70/40-477, in which provided all essential conditions of deliveries of products and materials.

The court considered the departures taking place in case of agreement signature of February 9, 1992 from regular form of the intergovernmental agreement, the adopted procedure of signing, and recognized absence in Item 2.2 of instructions on terms of accomplishment by the Government of the Republic of Kazakhstan of the assumed liabilities that features of form inherent in this Agreement do not affect its essence and, therefore, do not influence its legal reality and obligation. This conclusion of Court is confirmed also by opinion of the specialist.

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