RESOLUTION OF THE CONSTITUTIONAL COUNCIL OF THE REPUBLIC OF KAZAKHSTAN

of October 17, 1997 No. 18/1

About the appeal of the Almaty city court about recognition unconstitutional Item 6 of the Standard regulations on reference tribunal for the resolution of economic disputes approved by the resolution of the Cabinet of Ministers of the Republic of Kazakhstan of May 4, 1993 N 356, of Item 2 of Article 77 and Item 2 of article 96 of the Law of the Republic of Kazakhstan "About procedure for permission of economic disputes Arbitration Courts of the Republic of Kazakhstan"

The constitutional Council of the Republic of Kazakhstan in structure: Chairman Kim Yu. A. and members of the Constitutional Council: Akuyeva N. I., Mamonova V. V., Sabikenov S. N., Temirbulatov S. G., Shopin V. D., having considered in open session according to Article 25 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan" established the appeal of the Almaty city court about compliance of the Constitution of the Republic of Kazakhstan of Item 6 of the Standard regulations on reference tribunal for the resolution of economic disputes approved by the resolution of the Cabinet of Ministers of the Republic of Kazakhstan of May 4, 1993 N 356, of Item 2 of Article 77 and Item 2 of article 96 of the Law of the Republic of Kazakhstan "About procedure for permission of economic disputes Arbitration Courts of the Republic of Kazakhstan":

The Almaty city court with idea of recognition unconstitutional Item 6 of the Standard regulations on reference tribunal for the resolution of economic disputes approved by the resolution of the Cabinet of Ministers of the Republic of Kazakhstan of May 4, 1993 N 356, of Item 2 of Article 77 and Item 2 of article 96 of the Law of the Republic of Kazakhstan "About procedure for permission of economic disputes Arbitration Courts of the Republic of Kazakhstan" addressed to the Constitutional Council of the Republic of Kazakhstan.

Hearing of the case on the claim of the Main corporation on development and development of the province Hainan to Kazvneshkontrakt Foreign trade company about collection of 197061 US dollars in board on economic cases of the Almaty city court during which it became clear that according to article 8 of the contract N94/2 of 20.10.94 signed between the parties, disputes and disagreements which the parties cannot settle by negotiations will be permitted by arbitration in Chamber of Commerce and Industry of the Republic of Kazakhstan formed the basis to the appeal to the Constitutional Council of the Republic of Kazakhstan.

Based on the specified clause, otvetchikvneshnetorgovy "Kazvneshkontrakt" declared the petition for suit abatement based on Item 2 of article 96 of the Law of the Republic of Kazakhstan "Procedure for permission of economic disputes Arbitration Courts of the Republic of Kazakhstan" as according to Item 6 of the Standard regulations on reference tribunal for resolution of economic disputes availability of the agreement of the parties that disputes which already arose or will arise in the future between the parties, will be submitted the reference tribunal included in the agreement or the contract deprives of their right of the appeal to the relevant Arbitration Court (Art. 77 of item 2 of the Law "About Procedure for Permission of Economic Disputes Arbitration Courts of the Republic of Kazakhstan").

The claimant's representative during hearing of the case explained that he does not agree with consideration of this dispute in arbitration under Chamber of Commerce and Industry, insists on the dispute resolution in essence in board on economic cases of the Almaty city court.

The similar situation arose on the case on the claim of Tumar Limited liability partnership which is in production to Vityaz Limited liability company about collection of 5609735 tenges.

Having examined representation and other materials of the address, having studied the relevant standards of the Constitution of the Republic of Kazakhstan, the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council does not find the bases for adoption of the appeal of the Almaty city court to production.

By article 78 of the Constitution of the Republic of Kazakhstan it is established: if the court sees that the law or other regulatory legal act which is subject to application infringes at the rights and freedoms of man and citizen affirmed by the Constitution, it shall suspend proceeedings and address to the Constitutional Council with idea of recognition of this act unconstitutional.

The representation of the Almaty city court putting question of recognition unconstitutional Item 6 of the Standard regulations on reference tribunal, Item 2 of Article 77 and Item 2 of article 96 of the Law "About Procedure for Permission of Economic Disputes Arbitration Courts of the Republic of Kazakhstan" infringing the rights of legal entities goes beyond the fixed articles 78 of the Constitution of powers of courts and competence of the Constitutional Council which according to Item 2 of article 72 of the Constitution of the Republic of Kazakhstan and the subitem 1) of item 4 of the Presidential decree of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan", considers appeals of courts in cases, stipulated in Clause 78 Constitutions.

Besides, the Almaty city court does not fulfill requirements of the subitems 3) and 8) Item 2 of article 22 of the Decree "About the Constitutional Council of the Republic of Kazakhstan" establishing form and content of the appeal to the Constitutional Council.

Based on stated and being guided by Articles 25, 31-33 Presidential decrees of the Republic of Kazakhstan, the valid constitutional law, "About the Constitutional Council of the Republic of Kazakhstan", the Constitutional Council decides:

1. In acceptance to production of the appeal of the Almaty city court about recognition unconstitutional Item 6 of the Standard regulations on reference tribunal for the resolution of economic disputes approved by the resolution of the Cabinet of Ministers of the Republic of Kazakhstan of May 4, 1993 N 356, of Item 2 of Article 77 and Item 2 of article 96 of the Law of the Republic of Kazakhstan "About procedure for permission of economic disputes Arbitration Courts of the Republic of Kazakhstan" to refuse because the subject of the address does not enter competence of the Constitutional Council of the Republic of Kazakhstan.

2. Return the address to the Almaty city court.

3. According to Item 3 of article 74 of the Constitution of the Republic of Kazakhstan the resolution is not subject to appeal.

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