NORMATIVE RESOLUTION OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN

of November 2, 2023 No. 3

About some questions of application by courts of the arbitral legislation

For the purpose of ensuring uniformity of court practice in case of application of the arbitral legislation by courts, the plenary session of the Supreme Court of the Republic of Kazakhstan decides to make the following explanations.

1. The arbitration is alternative method of permission of civil disputes.

The right of the parties to submit civil dispute to arbitration stipulated in Item of 1 article 13 of the Constitution of the Republic of Kazakhstan (further the Constitution), Item 1 of Article 9 of the Civil code of the Republic of Kazakhstan (further group of companies).

Features of arbitration proceeding are respect for the principles of autonomy of will of the parties, legality, independence, competitiveness and equality of participants, justice, confidentiality, autonomy of the arbitral agreement (article 5 of the Law of the Republic of Kazakhstan of April 8, 2016 No. 488-V "About arbitration" (further the Arbitration act).

2. Legal regulation of arbitration proceeding differs from legal regulation of the procedure of hearing of cases in courts.

When implementing arbitration proceeding arbitrators are guided by the Constitution, international treaties, consent to which is expressed by the Republic of Kazakhstan, and also other international obligations of the Republic of Kazakhstan, the Arbitration act, the arbitral agreement, the regulations of arbitration.

In case of application of the right arbitrators are guided by subitem regulations 2) of Article 5, Article 44 of the Arbitration act.

The rules of arbitration proceeding which are not determined by regulations of permanent arbitration, and also provisions of the Arbitration act and not approved by the parties are determined by arbitrators.

The arbitration is not a part of the system of courts, the determined Constitution therefore by consideration of disputes of regulation of the Code of civil procedure of the Republic of Kazakhstan (further GPK) do not extend the action to the procedure of arbitration proceeding if other is not provided by GPK.

It must be kept in mind that the GPK is subject to application by arbitration in cases:

competence differentiations (in the presence of the arbitration clause the court has no right to consider dispute if other is not provided by the law);

appeals to competent court for rendering assistance in provision of interim measures and receipt of proofs;

cancellations of arbitral decisions;

recognition and forced execution of arbitral decisions.

3. Consideration of petitions for cancellation of arbitral decisions is performed by courts in this connection the legal basis by their consideration is constituted the Constitution, by regulations of international treaties, consent to which is expressed by the Republic of Kazakhstan, and also other international obligations of Respubliki, Group, GPK, the Arbitration act, other laws and regulatory legal acts.

In case of consideration of the applications about forced execution of the arbitral decisions passed by arbitration of the Republic of Kazakhstan, courts are guided by the Constitution, regulations of international treaties, consent to which is expressed by the Republic of Kazakhstan, and also other international obligations of the Republic, GPK, the Arbitration act, the Law of the Republic of Kazakhstan of April 2, 2010 to No. 261-IV "About enforcement proceeding and the status of legal executives" (further the Law on enforcement proceeding) and other regulatory legal acts.

In case of consideration of the applications about forced execution of arbitral decisions of foreign arbitration regulations of international treaties, consent to which is expressed by the Republic of Kazakhstan, and also other international obligations of the Republic, GPK and other regulatory legal acts, are applied.

4. International treaties, consent to which is expressed by the Republic of Kazakhstan, including are:

The convention on recognition and carrying out of foreign arbitral decisions (New York, on June 10, 1958, become effective for the Republic of Kazakhstan on February 18, 1996) (further - the New York Convention);

The European convention on the foreign trade arbitration (Geneva, on April 21, 1961 which the Republic of Kazakhstan joined on November 20, 1995) (further - the European convention);

The Washington convention on procedure for permission of investment disputes between the states and foreign persons (Washington, on March 18, 1965, become effective for the Republic of Kazakhstan on October 21, 2000) (further - the Washington convention).

The New York Convention is applied to recognition and carrying out of the arbitral decisions passed in the territory of the state of other than that state where recognition and carrying out of such decisions, on disputes in which both physical, and legal entities can be the parties is asked. It is applied also to arbitral decisions which are not considered as internal decisions in that state where recognition and carrying out (Item 1 of Article 1 of the New York Convention) is asked them.

The European convention is applied to arbitral agreements of both physical, and legal entities who at the time of the conclusion of such agreement have the permanent residence or respectively the location in the different Finishing speaking states, about permission according to the procedure of arbitration of the disputes arising when implementing transactions on foreign trade and also to the arbitral procedures and decisions based on such arbitral agreements (Item 1 of article I of the European convention).

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