KAZAKHSTAN Law and Practice Contributed by: Sergei Vataev, Ilya Kirichenko and Yelena Dvoretskaya-Yussupova, Legit Advocates‚ Bureau
4.3 Court Intervention The Law on Arbitration does not provide for the court’s authority to intervene in the selection of arbitrators. There have been practical precedents of courts declin - ing to adjudicate disputes relating to challenging the appointment of arbitrators by an improper appointing body. Under the AIFC legislation, as described in 4.2 Default Procedures , the AIFC Court may take part in the appointing procedure, and also it may play role in case of challenge of an arbitrator. 4.4 Challenge and Removal of Arbitrators The Law on Arbitration provides that an arbitrator may be challenged if he/she fails to meet the statu - tory requirements to be an arbitrator, and if there are grounds for doubts as to the arbitrator’s impartiality and/or competence. The relevant article of the Law on Arbitration lists specific examples of such grounds. Additional grounds for challenge may also be speci - fied in the rules of an arbitration institution. Under the AIFC legislation, the challenge procedure is provided for in the IAC Rules of Arbitration and Mediation; a party may also apply to the AIFC Court to appeal the results of the challenge of an arbitrator. 4.5 Arbitrator Requirements The Law on Arbitration states that an arbitrator must be impartial and independent. It specifies the following specific grounds for chal - lenge: • if a person closely related to the arbitrator is a party to the dispute or if the arbitrator expects significant benefit or loss based on the case’s outcome; • if the arbitrator or someone closely related to him/ her is the head of a legal entity involved in the dis - pute, or of a branch or representative office of such an entity, or otherwise represents a party or other individual who might expect significant benefit or loss based on the case’s outcome; • if the arbitrator acted as an expert or otherwise predetermined his/her position in the dispute or assisted a party in preparing or presenting its case;
• if the arbitrator received or demanded remunera - tion for the case, not provided for by the law; or • if the arbitrator unreasonably failed to comply with the arbitration proceedings’ terms. The Law on Arbitration also requires the arbitrator to disclose any circumstances that could disqualify him/ her from serving as an arbitrator. Under the AIFC legislation, a candidate for the posi - tion of arbitrator must submit to the IAC a statement of availability, independence and impartiality, and must disclose any circumstances he/she is aware of that could give rise to justifiable doubts regarding his/her independence or impartiality. In Kazakhstan, an arbitral tribunal has the authority to determine its own jurisdiction (the competence-com - petence principle). This also means that if one of the parties challenges the validity or applicability of the arbitration agreement, the tribunal itself is empowered to decide on the matter. This method is explicitly provided for under the Law on Arbitration and aligns completely with international standards. National courts do not interfere at the initial stage and permit the arbitral tribunal to decide on its own jurisdiction. However, a court may later review the tribunal’s jurisdictional decision if one of the parties seeks to set aside the award. 5.2 Circumstances for Court Intervention Judicial Intervention in Jurisdictional Matters Although an arbitral tribunal is authorised to determine its own jurisdiction, national courts may intervene at a later stage – usually after an award has been issued. If a party believes that the tribunal exceeded its author - ity or lacked jurisdiction to resolve the dispute, it may apply to the court to set aside the arbitral award. In such cases, the court will assess whether the tribu - nal’s jurisdiction was correctly established. 5. Jurisdiction 5.1 Challenges to Jurisdiction
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