KAZAKHSTAN Law and Practice Contributed by: Sergei Vataev, Ilya Kirichenko and Yelena Dvoretskaya-Yussupova, Legit Advocates’ Bureau
and apply directly to the state courts solely to obtain a prior determination of jurisdiction. A different procedure applies under the AIFC Arbitra - tion Regulations, under which the AIFC Court may review certain jurisdictional rulings of the arbitral tri - bunal where expressly authorised by the Regulations. 5.4 Standard of Judicial Review for Jurisdiction/Admissibility Where Kazakhstan courts are called upon to deter - mine questions of an arbitral tribunal’s jurisdiction, they undertake an independent assessment of the jurisdictional issues falling within the scope of judicial review provided by law. The tribunal’s conclusions on jurisdiction do not bind the courts. By contrast, questions relating solely to the admissi - bility of claims, including compliance with procedural preconditions to arbitration, are generally regarded as matters falling within the procedural authority of the arbitral tribunal, unless the applicable law expressly provides otherwise. The same general distinction is reflected in proceed - ings before the AIFC Court under the AIFC Arbitration Regulations. 5.5 Breach of Arbitration Agreement Kazakhstan courts do not favour initiating court pro - ceedings in breach of a valid arbitration agreement. If a party submits a claim to a court despite the exist - ence of such an agreement, the opposing party must raise an objection. When the arbitration agreement applies to the dispute, the court will terminate the proceedings. However, if the other party fails to raise an objection, it is deemed to have consented to the court’s jurisdiction. In practice, courts are typically hesitant to consider disputes covered by an arbitration agreement. This is in keeping with a broader policy of endorsing arbitra - tion and other types of alternative dispute resolution. 5.6 Jurisdiction Over Third Parties Generally, arbitral tribunals in Kazakhstan may not assume jurisdiction over individuals or entities that
have not explicitly consented to arbitration, ie, those that are not parties to the arbitration agreement. In exceptional cases, a tribunal may extend the pro - ceedings to third parties if they do not object to par - ticipating or have explicitly consented, for example by signing a written agreement to that effect. If a tribunal determines that the participation of a third party is permissible, there are no restrictions based on the nationality or jurisdiction of that party. The key requirement is either express consent or a legal con - nection to the arbitration agreement. Unless otherwise agreed by the parties, an arbitral tribunal may grant interim measures that it consid - ers appropriate in relation to the subject matter of the dispute. The Law on Arbitration does not provide an exhaus - tive list of interim measures. Depending on the cir - cumstances of the case, interim relief may include orders preserving assets, maintaining the status quo, preserving evidence or preventing conduct that may prejudice the arbitral proceedings or the enforcement of a future award. 6. Preliminary and Interim Relief 6.1 Types of Relief The AIFC Arbitration Regulations adopt a similar approach and confer broad powers on arbitral tribu - nals to order interim measures, subject to the appli - cable legal requirements. 6.2 Role of Courts Kazakhstan courts may grant interim measures in support of arbitration before or during arbitral pro - ceedings. An application for interim relief to a state court does not affect the validity of the arbitration agreement and is not regarded as incompatible with the agreement to arbitrate. The powers of the courts to grant interim measures exist alongside those of the arbitral tribunal. Accord - ingly, a party may seek interim relief from a competent court irrespective of whether the arbitral tribunal has
493 CHAMBERS.COM
Powered by FlippingBook