KAZAKHSTAN Law and Practice Contributed by: Sergei Vataev, Ilya Kirichenko and Yelena Dvoretskaya-Yussupova, Legit Advocates’ Bureau
As a general rule, Kazakhstan courts recognise and enforce valid arbitration agreements. Where court proceedings are commenced in respect of a dispute covered by a valid arbitration agreement, the court will generally decline to consider the dispute on the merits, provided that the respondent raises a timely objection. The court may nevertheless proceed with the case where the arbitration agreement is found to be invalid, incapable of being performed or otherwise unenforceable. The same general principles apply to foreign arbitra - tion agreements, subject to the applicable internation - al treaties and the relevant provisions of Kazakhstan law. 3.4 Validity Kazakhstan law recognises the doctrine of separabil - ity of the arbitration agreement. Accordingly, an arbi - tration clause is treated as an agreement independent from the underlying contract in which it is contained. As a result, the invalidity, termination or non-perfor - mance of the underlying contract does not, by itself, render the arbitration agreement invalid or unenforce - able. The arbitration agreement remains effective unless grounds specifically affecting its validity exist. The same principle is reflected in the AIFC Arbitration Regulations. The parties are generally free to determine the number of arbitrators and the procedure for their appointment, subject to the mandatory provisions of the applicable arbitration law and institutional rules. Under the Law on Arbitration, arbitrators must meet certain statutory qualifications. In particular, an arbi - trator must be at least 30 years old, have a univer - sity degree and have at least five years’ professional experience. The chairperson of the tribunal or a sole arbitrator must also hold a law degree. Certain cat - egories of persons, including judges, civil servants 4. The Arbitral Tribunal 4.1 Limits on Selection
and individuals with an unspent criminal conviction, are not eligible to act as arbitrators. By contrast, the AIFC Arbitration Regulations do not prescribe statutory qualification requirements for arbi - trators, leaving the parties broad autonomy in select - ing arbitrators of their choice. 4.2 Default Procedures Where the parties’ agreed procedure for appointing arbitrators fails, the default appointment mechanism depends on the applicable arbitration regime. Under the Law on Arbitration, the arbitrator is appoint - ed by the head of the relevant permanent arbitral insti - tution or, in ad hoc proceedings, by the Arbitration Chamber of Kazakhstan. The Law on Arbitration does not contain specific default rules for the appointment of arbitrators in multiparty arbitrations. Under the AIFC Arbitration Regulations, where the parties have not agreed on an appointment proce - dure or where that procedure fails, the AIFC Court may make the necessary appointments. Where the IAC administers the arbitration, the appointment pro - cedure is governed by the applicable IAC Arbitration Rules. 4.3 Court Intervention Court intervention in the appointment of arbitrators is limited under Kazakhstan law. For arbitrations governed by the Law on Arbitra - tion, the courts generally do not participate in the appointment of arbitrators. Where the parties’ agreed appointment procedure fails, the appointment is made by the competent appointing authority provided for by the Law on Arbitration rather than by the state courts. A different approach applies under the AIFC Arbitra - tion Regulations. Where the conditions prescribed by the Regulations are met, the AIFC Court may exer - cise functions relating to the appointment of arbitra - tors. The AIFC Court also performs other supervisory functions expressly conferred by the AIFC Arbitration Regulations, including matters relating to challenges to arbitrators.
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