KAZAKHSTAN Law and Practice Contributed by: Sergei Vataev, Ilya Kirichenko and Yelena Dvoretskaya-Yussupova, Legit Advocates‚ Bureau
3.4 Validity Kazakhstan law honours the principle of autonomy and separability of the arbitration agreement, as out - lined in both the general Law on Arbitration and the specific AIFC Arbitration Regulations 2017. Even if an otherwise invalid agreement includes an arbitra - tion clause, this clause should be regarded as valid for resolving disputes through arbitration.
The Law on Arbitration states that disputes arising from personal non-property-related civil law relation - ships are not arbitrable. Disputes relating to bank - ruptcy also cannot be settled through arbitration. The Law on Arbitration prohibits the inclusion of arbitra - tion clauses in standard, non-negotiable contracts and loan agreements between a commercial entity and an individual; it also bans arbitration of disputes between banks and lending organisations on the one hand and clients who are individuals on the other as well as between governmental, quasi-governmental or monopolistic entities. Additionally, there are restrictions on including an arbi - tration clause (for domestic arbitration) in agreements with governmental, quasi-governmental or govern - ment-owned entities (holding 50% or more shares) without prior special permission from the relevant authority. Notably, these restrictions do not apply to agreements with foreign parties. The AIFC Arbitration Regulations 2017 do not include any provisions that limit arbitrability. The general Law on Arbitration does not apply to arbitrations conduct - ed under these Regulations, and its restrictions are not relevant when determining arbitrability within the AIFC. 3.3 National Courts’ Approach The national courts are guided by the provisions of the Civil Procedure Code and the Law on Arbitration, and if the arbitration agreement is governed by Kazakh - stan law, they will examine the arbitration agreement against the limitations and restrictions of the Law on Arbitration. The general approach of the courts is that if a contract, on the basis of which a dispute has arisen, contains an arbitration clause, then the courts usually refer the parties to the relevant arbitration institution, respect - ing the arbitration clause. Sometimes, this approach can be seen as “overly pro- arbitration” when the courts decline to hear the case and instead send the parties to the arbitration institu - tion, even if the arbitration clause is void, invalid or not enforceable.
4. The Arbitral Tribunal 4.1 Limits on Selection
Kazakhstan’s general legislation sets certain statutory qualification requirements for arbitrators: a minimum age of 30 years, a university degree, at least five years of professional experience, and a law degree for the tribunal chairperson or sole arbitrator. It also imposes restrictions: active judges, civil servants, members of legislatures, servicemen and servicewomen, and individuals with a criminal record are disqualified from serving as arbitrators. Additional requirements may be set out in the rules of an arbitral institution. Some arbitral institutions in Kazakhstan restrict the choice of arbitrators to their lists of arbitrators; however, this practice is gradually declining. The AIFC Arbitration Regulations 2017 do not restrict the parties from selecting arbitrators. 4.2 Default Procedures The Law on Arbitration states that if the method cho - sen for selecting arbitrators fails, an arbitrator must be appointed by the head of a permanent arbitration institution or, in the case of ad hoc arbitration, by the Arbitration Chamber of Kazakhstan (a self-governing union of Kazakhstan’s arbitration institutions). Under the AIFC legislation, if the parties choose to apply the IAC Rules of Arbitration and Mediation, then the IAC Chairperson has the right to appoint an arbitrator if the parties fail to select one. If the par - ties do not agree on the procedure for selection at all (including by reference to the Rules of Arbitration), then under the AIFC Arbitration Regulations 2017, an arbitrator can be appointed by the AIFC Court.
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