KAZAKHSTAN Law and Practice Contributed by: Sergei Vataev, Ilya Kirichenko and Yelena Dvoretskaya-Yussupova, Legit Advocates‚ Bureau
agreement; and (2) if there is a standing court decision or arbitration award (or a court decision or an arbitra - tion tribunal ruling to terminate the proceedings due to the party’s withdrawal), on the same subject, on the same grounds, between the same parties. We note that since international arbitral awards are enforced based on the 1958 New York Convention, courts cannot apply these additional grounds speci - fied in domestic legislation. However, not all courts have sufficient experience in handling international awards and treaties, and enforcement practices dif - fer by location. Under the AIFC legislation, the procedure for issu - ance of an execution writ for an IAC award is simpler: a mere application to the IAC Registrar, who is at the same time the Registrar of the AIFC Court and the enforcement judge, suffices. The grounds for refusal of issuance of the execution writ under the AIFC legislation are exactly the same as those listed in Article V of the 1958 New York Con - vention. 12.3 Approach of the Courts Even though Kazakhstan undertook the obligation to abide by the rules of the 1958 New York Convention, enforcement of international arbitral awards faces dif - ficulties. A notable problem in enforcing an interna - tional arbitral award is the practical impossibility of enforcing an award against the assets of a company located outside Kazakhstan. Under a poorly worded provision of the Civil Procedure Code, an application for enforcement may be filed with the court at the seat of arbitration, at the location of the award debtor, or, if the location of the debtor is unknown, at the loca - tion of the debtor’s assets. The last of these provi - sions is interpreted by the court in such a way that enforcement against the assets of the debtor may only be sought if the debtor’s address is unknown to the award creditor, a situation which is virtually impossible in international arbitration. Courts almost uniformly reject applications for the enforcement of awards at the location of assets, stat - ing that because the debtor’s address is known, filing at the location of the assets is not permitted, and they
generally refuse to recognise their jurisdiction over the enforcement proceedings and the debtor’s assets. This interpretation of law essentially undermines the purpose of the 1958 New York Convention and grants immunity to those arbitral award debtors that are not domiciled in Kazakhstan, even if most of their assets are located there. Discussions about grounds for refusal to enforce, such as “public policy”, occur periodically. Various government bodies and officials have tried to define the concept of public policy more clearly or to com - pile an exhaustive list of considerations. There have also been instances where courts or prosecutors have attempted to apply the public policy principle in cases of alleged non-compliance with law, effectively try - ing to revise an award on its merits; however, such attempts now happen less often. 13. Miscellaneous 13.1 Class Action or Group Arbitration The legislation of Kazakhstan does not include specif - ic provisions on class or group arbitration. Arbitration in Kazakhstan is generally seen as a form of alterna - tive dispute resolution between particular parties that have entered into an arbitration agreement. However, group arbitration might be feasible in prac - tice, provided that: • all parties agree to the joint proceedings; • the parties have entered into similar or compatible arbitration agreements; and • the applicable arbitration rules do not prohibit con - solidation or joint proceedings. In such cases, the dispute may be resolved within a single arbitral process, subject to the approval of the tribunal or the arbitral institution involved. 13.2 Ethical Codes Arbitrators acting in Kazakhstan must adhere to the ethical standards outlined in the Law on Arbitration, including the core principles of impartiality, inde - pendence, confidentiality and integrity. They are also
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