KAZAKHSTAN Law and Practice Contributed by: Sergei Vataev, Ilya Kirichenko and Yelena Dvoretskaya-Yussupova, Legit Advocates‚ Bureau
satisfied and rejected. At the same time, expenses for paying the representative’s services on behalf of the party in favour of whom the arbitral award was issued, as well as other costs related to the arbitral proceedings, may be imposed on the losing party in accordance with the arbitral award, provided that the claim for reimbursement was made during the pro - ceedings and approved by the arbitral tribunal. The only exception is if the claimant withdraws the claim, in which case the costs incurred by the claimant are not reimbursed by the defendant. Under the AIFC legislation, in accordance with the IAC Rules of Arbitration and Mediation, the arbitral tribunal has full discretion to decide in its award that all or part of a party’s expenses shall be paid by the other party; there is no requirement for proportionality in splitting or allocating costs. Generally, there is no “appeal” procedure for arbitral awards in Kazakhstan; Kazakhstan law explicitly pro - hibits reviewing the merits of an arbitration award. However, a party may submit a request to an appel - late court to set aside an arbitration award, but only on procedural grounds, the specific list of which is provided in the law. In particular, to set aside an award, a party must pro - vide evidence that: • it contains a decision on a matter not covered by the arbitration agreement or its terms, or it con - tains rulings on matters outside the scope of the arbitration agreement, and because of the lack of jurisdiction of the arbitral tribunal over the dispute. If awards on matters covered by the arbitration agreement can be separated from awards on mat - ters not covered by such agreement, only the part of the award that includes rulings on matters out - side the arbitration agreement may be set aside; or 11. Review of an Award 11.1 Grounds for Appeal • one of the parties to the arbitration agreement has been declared incompetent by the court or the arbitration agreement is invalid under the law to which the parties have subjected it or, in the
absence of such indication,under the laws of the Republic of Kazakhstan; or • a party was not duly notified of the appointment of an arbitrator or of the arbitration proceedings or, for other reasons recognised by the court as valid, was unable to submit its explanations; or • the composition of the arbitration or the arbitral procedure of the proceedings was not in accord - ance with the agreement of the parties, unless such agreement is contrary to any provision of the Law on Arbitration from which the parties may not derogate, or, in the absence of such agreement, was not in accordance with the Law on Arbitration; or • there is an enforceable court judgment or arbi - tral award or a court or arbitral tribunal ruling on termination of proceedings in connection with the plaintiff’s withdrawal from the claim, issued on a dispute between the same parties, on the same subject matter and on the same grounds. The award may also be set aside by the court if the arbitral award contradicts the public policy of the Republic of Kazakhstan or if the dispute on which the arbitral award was made is not arbitrable under Kazakhstan law. An application for setting aside may be filed with the court within one month of receipt of the award. The law also states that if an application is made to set aside an arbitral award, the court has the authority to suspend proceedings allowing the tribunal to remedy the shortcomings. Such a suspension can happen upon a request by the parties to resume the arbitral process or to take other steps to address the grounds for setting aside the award. An arbitral award may be examined upon application by a party to the arbitration agreement or another per - son whose rights are affected by newly discovered circumstances. The grounds for challenging an arbi - tral award in newly discovered circumstances are also strictly defined by law. The rules concerning setting aside an award are simi - lar in the AIFC, where the issue of setting aside an arbitration award is considered by the AIFC Court. In
409 CHAMBERS.COM
Powered by FlippingBook