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Nlpp №3-3 2020.Pdf Narxoz Law and Public Policy №3 – 2020 ОГЛАВЛЕНИЕ Некоммерческое акционерное общество «Университет Нархоз». Журнал «Narxoz Law and Public Policy». Журнал издается с 2020 г. KAZAKHSTAN AS A SEAT OF ARBITRATION: HISTORY, Периодичность издания 4 номера SHORTCOMINGS, AND PROSPECTS OF ARBITRATION в год. Журнал зарегистрирован LAW IN KAZAKHSTAN Комитетом информации A. Kussaiyn 2 Министерства информации и общественного развития ДЕЯТЕЛЬНОСТЬ КОНСТИТУЦИОННОГО СОВЕТА Республики Казахстан. РЕСПУБЛИКИ КАЗАХСТАН В СИСТЕМЕ ОБЕСПЕЧЕНИЯ Свидетельство о постановке на учет № KZ88VPY00018136 от МЕХАНИЗМОВ ЗАЩИТЫ ПРАВ И СВОБОД ЧЕЛОВЕКА И 10.12.2019 ГРАЖДАНИНА ISSN: 2707-4137 А. Ф. Сулейманов 12 Главный редактор: ВЛИЯНИЕ СМИ НА ПРАВОСОЗНАНИЕ МОЛОДЕЖИ Сулейманов А.Ф., д.ю.н. Ж. Ю. Сайлибаева 19 (Республика Казахстан) Редакционный совет: OPTIMIZATION OF CIVIL SERVANTS AND PROJECT Буянский С.Г. (Россия) MANAGEMENT IN KAZAKHSTAN Бакер Л. (США) Sh. A. Smagulova 26 Фокс У. (Великобритания) Редакционная коллегия: ГАЗОПРОВОД «САХАЛИН – ХОККАЙДО»: ПРАВОВОЕ И Подоригора Р.А. ЭКОНОМИЧЕСКОЕ ОБОСНОВАНИЕ (Республика Казахстан) В. Г. Цыплин 33 Рысмендеев Б.Д. (Республика Кыргызстан) НУЖНА ЛИ ИНТЕГРАЦИЯ? ИССЛЕДОВАНИЕ Шенин А.С. (Российская Федерация) ВОСПРИЯТИЯ ЕВРАЗИЙСКОГО ЭКОНОМИЧЕСКОГО Даутай И. (Великобритания) СОЮЗА СРЕДИ СТУДЕНТОВ РЕСПУБЛИКИ КАЗАХСТАН Жанузакова Л.Т. А. С. Шенин 41 (Республика Казахстан) Мухамеджанов Э.Б. ГЕОПОЛИТИЧЕСКОЕ ВЛИЯНИЕ РОССИИ В ЕВРАЗИИ (Республика Казахстан) И. П. Иванов 52 Шенин С.Ю. (Российская Федерация) Алиев Б.А. НОВАЯ РЕАЛЬНОСТЬ: ТРАНСФОРМАЦИЯ СЕБЯ И (Республика Азербайджан) КОМПАНИИ УЖЕ НЕ ВЫБОР, А НОВАЯ МОДЕЛЬ ЖИЗНИ О. Алферов, М. Образцова 63 Учредитель: Некоммерческое акционерное общество «Университет Нархоз» Адрес: 050035, 1-й микрорайон, д.81, Ауэзовский район, Алматы, Казахстан Email: [email protected] Телефон: +7.727.377.1949 Опубликованные материалы не всегда отражают точку зрения редакции. Ответственность за достоверность фактов и сведений в публикациях несут только авторы. При использовании материалов ссылка на журнал «Narxoz Law and Public Policy» обязательна. Тираж 300 экз. Подписано в печать в 28.09.2020 г. Формат 60x90/8. Печать офсетная. Объем п.л. 8,3. ТОО Издательство «Фортуна Полиграф». 1 Narxoz Law and Public Policy №3 – 2020 МРНТИ 10.33.91 JEL Classifi cation: K4 KAZAKHSTAN AS A SEAT OF ARBITRATION: HISTORY, SHORTCOMINGS, AND PROSPECTS OF ARBITRATION LAW IN KAZAKHSTAN A. Kussaiyn China University of Political Science and Law, Beijing, China ABSTRACT Arbitration in Kazakhstan has started to change its role in the realm of dispute resolution quite recently. Since independence, the legal framework of arbitration has been developing for 25 years introducing new concepts that attempted to comply with international standards. The new legislation introduced by the Law on Arbitration dated 8 April 2016 is signifi cantly making further steps to make arbitration one of the preferred methods of dispute resolution for local and international enterprises. The purpose of this research is to analyze the existing framework of Arbitration Law in Kazakhstan, and its shortcoming. The proposed research methodology will be based on two sources: primary and secondary sources. This study will be interpretive, and therefore most of the methods will be qualitative. The descriptive research methodology will be used since the research topic is purely legal though it has social, economic, and geopolitical importance too. Comparative research methodology includes comparing diff erent legal systems and diverging laws related to international commercial arbitration. The work is original in a way that it tries to implement international practices in international commercial arbitration compared to Kazakhstani arbitration framework. Findings. The article conduces that the Kazakhstani government has very ambitious plans to attract foreign investors by amending arbitration laws and providing investors with new options for the settlement of disputes, including the establishment of new courts and arbitration institutions. The law of arbitration seat typically governs extent of judicial intervention, procedural conduct of the arbitration, appointment and qualifi cations of arbitrators, qualifi cations and professional responsibilities of parties’ legal representatives, availability of provisional reliefs, form of an award and standards for an annulment of an award. Thus, the amendment of arbitration law framework is still an important deal. Keywords: International Arbitration, Global governance, International Private Law, Kazakhstan, International Commercial Law. I. THE HISTORY OF ARBITRATION IN regulating commercial arbitration.1 During KAZAKHSTAN the Soviet Union, and later, in independent Kazakhstan, the main problem of arbitration The history of arbitration in Kazakhstan was the ability of government prosecutors to is closely associated with the arbitration appeal an arbitration award and then annul framework of the Soviet Union. Early arbitration it [1]. This kind of state interventions easily was mostly infl uenced by the laws of the Soviet disgraced the principle of independence and Union “On Third Party Courts”. The arbitration fi nality of arbitration awards. came into existence with the creation of For the ease of reference, the history of arbitration chambers in 1993. Arbitration arbitration in Kazakhstan can be divided into chambers were independent bodies that dealt two major periods: (i) Pre-1999 Arbitration with commercial and trade disputes. At that regime in Kazakhstan; (ii) Post-2004 time, the Model Provision on the Arbitration 1 Approved by the Resolution of the Cabinet of Ministers of the Republic of Kazakhstan dated 4 May 1993 No. Court Regulation was the main legislation 356. 2 Narxoz Law and Public Policy №3 – 2020 Arbitration regime in Kazakhstan. Each period Civil Procedure of the Republic of Kazakhstan has its own features and developments that (CCP) did not contain any provisions that aff ected the fi nal structure of arbitration would enforce such orders, except foreign regime in Kazakhstan. arbitration awards.4 Since in the hierarchy of normative legal acts the Codes of the 1.1 Pre-1999 Arbitration regime in Republic of Kazakhstan stand above the Kazakhstan Laws, it was apparent that the provisions Right after Kazakhstan attained its of the aforementioned law did not have any independence after the collapse of the Soviet power. Accordingly, it was impossible to Union, it started taking an active part in global enforce domestic arbitration awards in such trade and economy. Former countries of the circumstances. Soviet Block signed Kiev Agreement of 1992 Another issue at the earlier stages of on the procedure for resolving disputes in arbitration was to what extent did a state court the CIS related to business activities2[2]. In have the right to intervene in the activities order to start creating an attractive investment of the arbitral tribunal. There were no clear regime, the Supreme Council of Kazakhstan requirements of Kazakhstani legislation on (Former Parliament) accessed Washington this issue. On the contrary, paragraph 44 Convention on the Settlement of Disputes of the Model Arbitration Court Regulation between States and Nationals of other States. provided that the state court had the right to Later in 1995, Kazakhstan ratifi es the refuse issuance of an order for the execution European Convention on International of an arbitration award if it did not comply Commercial Arbitration, and the same year, with the law.5 That provision basically allowed with certain exceptions, joins the New York state courts to review arbitration awards on Convention on Recognition and Enforcement the merits. of Foreign Arbitral Awards. It mostly recognized In the period from 1999 to 2004, the and enforces foreign awards by means of arbitration was in a downfall with the adoption reciprocity. Such measure was seemingly of the Civil Procedure Code of 1 July 1999, performed to preserve the national interests which did not include provisions on the of newly established state that was at the enforcement of arbitration awards by state initial stage of its economic development. courts. To change this fault, the Supreme The earlier laws on arbitration were Court adopted Regulatory Resolution ordering imposing a lot of caveats in various ways. the courts to make rulings on the enforcement Besides, arbitration legislation had a lot of of arbitration awards.6 Despite these steps, confl icting rules that made it diffi cult to conduct the Prosecutor General’s Offi ce and the proper arbitration proceedings. The idea of Ministry of Justice of Kazakhstan opposed to arbitration was by all odds diff erent from that the resolution [2]. One of the reasons could known in Europe or the U.S. For example, the be lack of trust towards the new concept of law ‘On the Procedure for the Settlement of dispute resolution that was independent Economic Disputes by the Arbitration Courts from state courts. After some pressure, the of the Republic of Kazakhstan’ obligated state Supreme Court was forced to suspend its courts to issue an order for the execution if regulatory amendments in enforcement of 3 the party did not fulfi ll the award. Although arbitration awards. such a provision existed in law, the Code of 2 “Kiev Convention on Settling Disputes Related to Commercial Activities: CIS Arbitration Forum – Online Journal about Dispute Resolution in Russia, Ukraine, 4 Article 425 of The Code of Civil Procedure of the Re- Kazakhstan, Belarus and the Region,” accessed
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