KAZAKHSTAN Law and Practice Contributed by: Sergei Vataev, Ilya Kirichenko and Yelena Dvoretskaya-Yussupova, Legit Advocates’ Bureau
5. Jurisdiction 5.1 Challenges to Jurisdiction
4.4 Challenge and Removal of Arbitrators The Law on Arbitration provides a procedure for chal - lenging an arbitrator when circumstances give rise to justifiable doubts about the arbitrator’s independence or impartiality, or when the arbitrator does not satisfy the statutory qualification requirements. The applica - ble institutional rules may provide additional grounds for challenge. Unless otherwise agreed by the parties, a challenge is initially determined in accordance with the procedure outlined in the applicable arbitration rules. Where the challenge is unsuccessful, the arbitration may pro - ceed, subject to any subsequent judicial review avail - able under the applicable law. Under the AIFC Arbitration Regulations and the IAC Arbitration Rules, parties may challenge an arbitrator in accordance with the applicable rules. Decisions on challenges may, in the circumstances prescribed by the AIFC Arbitration Regulations, be reviewed by the AIFC Court. 4.5 Arbitrator Requirements The fundamental requirements applicable to arbitra - tors under Kazakhstan law are independence, impar - tiality and the disclosure of any circumstances that may give rise to justifiable doubts as to either. The Law on Arbitration requires a prospective arbi - trator to disclose, without delay, any circumstances that may affect his or her independence or impartiality. Such circumstances may constitute grounds for chal - lenge if they give rise to justifiable doubts as to the arbitrator’s ability to act independently and impartially. The AIFC Arbitration Regulations and the IAC Arbitra - tion Rules adopt the same general principles. Pro - spective arbitrators are required to disclose any cir - cumstances that may give rise to justifiable doubts regarding their independence or impartiality through - out the arbitration proceedings.
Kazakhstan law recognises the principle of compe - tence-competence. An arbitral tribunal may rule on its own jurisdiction, including objections concerning the existence, validity or scope of the arbitration agree - ment. As a general rule, jurisdictional objections are deter - mined by the arbitral tribunal in the first instance. The courts do not ordinarily intervene before the tribunal has ruled on its jurisdiction, except where such inter - vention is expressly provided for by law. The same principle applies under the AIFC Arbitration Regulations. 5.2 Circumstances for Court Intervention Kazakhstan courts may intervene in questions relating to an arbitral tribunal’s jurisdiction only in the circum - stances expressly provided for by law. As a general rule, jurisdictional objections are deter - mined by the arbitral tribunal in the first instance. Court intervention is generally limited to subsequent judicial review in proceedings concerning the setting aside, recognition or enforcement of an arbitral award, where jurisdiction forms one of the statutory grounds for review. Under the AIFC Arbitration Regulations, the AIFC Court may also determine applications relating to jurisdiction where such powers are expressly con - ferred by the Regulations, including reviewing certain jurisdictional rulings of the arbitral tribunal. 5.3 Timing of Challenge Under the Law on Arbitration, jurisdictional objections are ordinarily determined by the arbitral tribunal before a court may review them. A party may seek judicial review of jurisdiction only in the circumstances provided for by law, generally after the arbitral tribunal has ruled on its jurisdiction or fol - lowing the issuance of the award, depending on the applicable procedural mechanism. Kazakhstan law does not permit parties to bypass the arbitral tribunal
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