APPROVED
by the minutes of the General Meeting
of Karagandinskiy Arbitrazhniy Sud LLP (Karaganda Arbitration Court LLP)
of « _____» ______ 2017
Place of stamp
RULES
of the permanent Karaganda Arbitration Court
CONTENT:
General provisions
Article 1. Competence of the Karaganda Arbitration Court
Article 2. Basic concepts used in these Regulations
Article 3. Principles of arbitration
Article 4. Agreement on the transfer of the dispute for settlement in the Arbitration (Arbitration Agreement)
Article 5. Waiver of the right to invoke these Regulations
Article 6. Language of arbitration
Article 7. Term of proceedings
Article 8. The order of the documents submission
Article 9. Sending and delivery of the documents
Article 10. Calculation of terms. Custody of the arbitration cases
Article 11. The structure of the Arbitration. Seat of Arbitration
Article 12. Confidentiality
Arbitration proceedings
Article 13. Registration of a statement of claim
Article 14. Content of a statement of claim
Article 15. Documents attached to a statement of claim
Article 16. Cost of a claim
Article 17. Costs of the arbitration proceedings
Article 18. Return of a statement of claim
Article 19. Suspension of a statement of claim
Article 20. Initiation of proceedings on the case
Article 21. Submission of a counterclaim and offsetting of the counterclaims
Article 22. Arbitrator
Article 23. Composition of the arbitration tribunal
Article 24. Notification of the Parties about the court session
Article 25. Provisional measures and evidence obtaining
Article 26. Failure to submit documents or failure to appear by the party
Article 27. Receipt of the written communications by the Parties
Article 28. Rights of the Parties
Article 29. Maintenance of order
Article 30. Disqualification of an Arbitrator, Expert and Translator
Article 31. Termination of powers of an Arbitrator
Article 32. Changes to the composition of the Arbitration
Article 33. Witnesses
Article 34. Appointment and execution of an examination
Article 35. Postponement and suspension of an arbitration proceedings
Article 36. Settlement agreement and mediation settlement of a dispute
Article 37. Termination of the arbitration proceedings
Arbitrament
Article 38. Form and content of the arbitrament
Article 39. Correction and explanation of the arbitrament.
Additional arbitrament.
Article 40. Revision of the arbitrament under newly discovered circumstances
Article 41. Execution of the arbitrament
GENERAL PROVISIONS
Article 1. Competence of the Karaganda Arbitration Court
1.1. The Karaganda Arbitration Court (hereinafter referred to as the Arbitration) is an independent, permanent arbitration settling internal and international disputes arising from civil law relations, involving legal entities and (or) individuals, in accordance with the Constitution of the Republic of Kazakhstan, the Arbitration Law of the Republic of Kazakhstan, Civil and Civil Procedure Codes of the Republic of Kazakhstan, given Regulations, and other norms of the current legislation of the Republic of Kazakhstan, as well as the international treaties ratified by the Republic of Kazakhstan. .
1.2 The applicable law is the legislation of the Republic of Kazakhstan. At the same time, the Arbitration Court considers disputes according to the norms of the international law, as well as the law of any state (by agreement of the Parties).
1.3 The order of organization of activities and settlement of disputes in the Arbitration is determined by these Regulations.
1.4 Disputes involving the interests of minors, persons recognized in the manner required by the law as legally incapable or partly incapable, on rehabilitation and bankruptcy, between natural monopoly entities and their consumers, between state bodies, and subjects of the quasi-public sector are not the subject to the general jurisdiction of the Arbitration.
1.5 Arbitration is not entitled to consider disputes arising from personal non-property relations that are not related to property ones.
1.6 The arbitration is not entitled to consider disputes between individuals and (or) legal persons of the Republic of Kazakhstan on the one hand and the state bodies, state enterprises, as well as legal entities, fifty or more percent of the voting shares (shares of participation in the authorized capital) of which directly or indirectly belong to the state, on the other – in the absence of the consent of the authorized body of the relevant industry (in respect of the republican property) or local executive body (in respect of the communal property).
1.7 The state bodies, the state enterprises, as well as the legal entities, fifty and more percent of voting shares (shares of participation in the authorized capital) of which are directly or indirectly owned by the state, intending to enter into an arbitration agreement, should sent a request for consent regarding the conclusion of such an agreement with an indication of the projected amounts of expenditures on arbitration proceedings to an authorized body of the relevant industry (in respect of the republican property) or a local executive body (in respect of the communal property). The authorized body of the relevant industry or the local executive body is obliged to consider the request within fifteen calendar days and send a written notice of consent or a reasoned refusal to give consent. While considering the request, the authorized body of the relevant industry or the local executive body should take into account economic security and the interests of the state.
Article 2. Basic terms used in these Regulations
Article 2.1 The following terms are used in these Regulations:
1) an arbitration agreement – a written agreement of the Parties on the transfer of a dispute that arises or may arise from a civil law relationship to the arbitration for consideration;
2) a court of arbitration – a permanent court of arbitration established in accordance with the current legislation of the Republic of Kazakhstan;
3) an arbitration – the process of considering a dispute in a court of arbitration and making the decision by an arbitrator;
4) the Parties to the arbitration – the plaintiff and the defendant, between which an arbitration agreement is concluded;
5) an arbitrator is an individual elected by the Parties or appointed in accordance with this Law and (or) the Regulations of the Karaganda Arbitration Court to settle the dispute in accordance with the provisions of the Arbitration Law;
6) an arbitrament – a decision made by the arbitration court;
7) the rules of the Karaganda Arbitration Court – the procedure for organizing the activities of a permanent arbitration court and the rules of arbitration;
8) the business practice – the rules of conduct that have developed and are widely used in the field of civil law contracts, which do not contradict the applicable law, regardless of whether they are fixed in any document.
Article 3. Principles of arbitration proceedings.
3.1 The arbitration proceedings in the Karaganda Arbitration Court are carried out in accordance with the following principles:
1) autonomy of the will of the Parties, meaning that the Parties, by prior agreement, have the right to resolve issues of the order and conditions of the implementation of arbitration proceedings on a dispute that has arisen or may arise by themselves;
2) legality, meaning that the arbitrator and arbitration courts while making decisions are guided only by the norms of the Constitution, laws and regulations, and the international treaties ratified by the Republic of Kazakhstan;
3) independence, meaning that the arbitrator and arbitration courts are independent, make decisions in conditions excluding any impact on them while making the decision on the disputes submitted to them;
4) competitiveness and equality of the Parties, meaning that the Parties of arbitration have the same amount of rights and bear the same amount of responsibilities, choose their position, ways and means of its defend singly and independently of arbitration court, other bodies and persons;
5) fairness, meaning that while making decisions on the disputes submitted to them, the arbitrator and the arbitration court and the Parties to the arbitration must act with good faith, observing the established requirements, the moral principles of society and the rules of business ethics;
6) confidentiality, meaning that the arbitrator(s) is (are) not entitled to disclose information that has become known in the course of arbitration without the consent of the Parties or their successors and can not be questioned as witnesses about information that has become known to them during the arbitration, except the cases when the law provides for the duty of a citizen to inform the relevant body.
Article 4. Agreement on the transfer of the dispute for settlement to the Arbitration (Arbitration Agreement)
4.1 The agreement on the transfer of a dispute to the Arbitration is a written agreement of the Parties to the agreement/contract on the transfer of the dispute, that has arisen or may arise, to the Arbitration for consideration, which may be concluded in the form of an arbitration clause in the agreement or contract, or by exchanging letters, telegrams, telephone messages, faxes, electronic documents or other documents that determine the subjects and the content of their will.
4.2. Conclusion by the Parties of an agreement on the transfer of a dispute to the Arbitration means the consent of the Parties to these Regulations, its amendments and changes effective at the time of filing of the statement of claim.
4.3 The arbitration agreement shall contain:
- a) the intention of the Parties to transfer the dispute to the Arbitration;
- b) an indication of the matter to be considered by the Arbitration;
- d) the consent of the authorized body of the relevant industry or the local executive body in the case provided for by clause 10 of Article 4 of these Regulations
4.4 Additional conditions of the arbitration agreement may be determined by the agreement of the Parties.
4.5. Agreement of the Parties on the transfer of a dispute that is pending in a court of general jurisdiction to Arbitration may be concluded before the adoption of a dispute resolution by the said court.
4.6. The agreement on the transfer of the dispute to the Arbitration is considered concluded if the plaintiff has filed a statement of claim to the Arbitration, and the defendant has submitted a response to the claim, in which there is no objection to the consideration of the dispute in the Arbitration.
4.7 In case when of one of the Parties to the contract (which is the subject of the dispute) abates the right of claim to the third party, the agreement on arbitration proceedings (arbitration clause) remains valid and is considered concluded between new participants of the contractual obligations.
4.8. The arbitrator (the Arbitration) singly solves the issue of whether or not he (it) has the authority (jurisdiction) to consider the dispute transferred to it, including the cases where one of the Parties objects to the arbitration proceedings, stating the invalidity of the arbitration clause in the agreement/contract.
Article 5. Waiver of the right to invoke these Regulations
5.1 Any Party is considered as waived its right to object if it knows that any provision of the Law or the requirement of an arbitration agreement (arbitration clause) has not been observed, and, nevertheless, continues to participate in the arbitration without objecting within 5 (five) days from the moment of revealing such a violation.
Article 6. Language of arbitration
6.1 The Parties may, at their discretion, agree on the language or languages that will be used in the course of the arbitration. In the absence of such an agreement, the language of the arbitration shall be determined by the ruling of the Arbitration, depending on the language in which the arbitration claim is filed, or in the language of the arbitration agreement.
6.2 If in the preparation for the consideration of the case in the Arbitration, it has been found out that the plaintiff does not know the language in which his representative had filed the statement of claim, then upon a written request of the plaintiff, the Arbitration issues a ruling on changing the language of the arbitration. The persons participating in the case who do not speak the language in which the arbitration is conducted shall be guaranteed the right to familiarize themselves with the case materials, participate in arbitration proceedings through an interpreter, and have the right to speak in the Arbitration in their native language. In this case, the Party shall ensure the participation of an interpreter in the arbitration proceedings by its own. The Party submitting the documents and other materials not in the language of the arbitration proceedings shall ensure their translation.
Article 7. Term of proceedings
7.1 Preparation of cases for arbitration should be made not later than ten calendar days from the date of acceptance of the application. As exception, in cases of special complexity, this period may be extended to one month according to the reasoned ruling of the Arbitration.
7.2 The Arbitration undertakes all measures to ensure that the time limit for the proceedings does not exceed two months from the date of the completion of the preparation of the case for arbitration. The specified term can be extended by the Arbitration on the basis of the complexity of the case.
7.3 If the Arbitrator unreasonably delays the arbitration, the Parties have the right to apply for his challenge and the appointment of a new Arbitrator.
Article 8. The order of the documents submission
- All documents relating to the initiation and implementation of arbitration proceedings must be submitted by the Parties in such a number of copies that each party and the Arbitration have got one copy.
- Documents, as a rule, are presented in the original. If a copy of a document is provided, the arbitration tribunal may, if necessary, request the submission of the original.
- Documents, with the exception of written evidence, are presented in the language of the arbitration. The Arbitration Tribunal may, at its discretion or at the request of one of the Parties, require the other party to translate into Kazakh or Russian language the documents submitted by it or provide such translation at its expense.
Article 9. Sending and delivery of the documents. Custody of the arbitration cases.
9.1. The Arbitration sends or gives to the Parties all documents on the case.
9.2. Documents are sent to the addresses specified by the Parties. The Parties are obliged to notify the Arbitration Court about changes in the previously mentioned addresses immediately.
9.3. Claims, reviews of statements of claim, notices, arbitraments, and rulings are sent by the registered mail with a notice of delivery, or are delivered in a different fixed way, including handing over or handing personally against receipt.
9.4. If the Parties have not agreed otherwise:
1) any written communication is considered received if it is delivered to a Party personally or to a business belonging to a Party, at its permanent place of residence or postal address. When such information can not be defined by reasonable inquiry, a written communication is deemed received if it is sent at the last known location of the place of business, place of residence or postal address of the Party by registered mail or by any other means providing for the registration of an attempt to deliver this message;
2) the message is considered received on the day of such delivery.
9.5 After the decision is made or the dispute is closed, the case is transferred to the Arbitration for storage.
Article 10. Calculation of terms.
10.1 For the purposes of calculating the time limits under these Regulations, the term starts from the day following the receipt of a notice, notification, communication or offer. If the last day of the term falls on an official holiday or a non-working day in the place of residence or at the location of the addressee’s business, the term is extended to the nearest working day. Official holidays or non-working days taking place during the term are not excluded when calculating it.
Article 11. The structure of the Arbitration
11.1 The Arbitration consists of the Chairman and the Arbitrators in accordance with the Register of Arbitrators.
11.2 The Chairman of the Arbitration performs the following functions:
1) accepts the representatives of the legal entities and individuals willing to obtain the information on the activities of the Arbitration;
2) certifies the copies of the decisions made by the Arbitrators;
3) considers the cases as an Arbitrator;
4) appoints an Arbitrator from the Register of Arbitrators;
5) carries out other actions related to the activities of the Arbitration.
11.3 In the absence of the Chairman of the Arbitration, his functions are performed by the Arbitrator from the Register of the Arbitrators according to the instructions of the Chairman.
11.4. Location of the Arbitration and the venue of the meetings is the city of Karaganda.
11.5. If desired, the Parties may specify a different venue for the meetings. In this case, all additional expenses incurred in connection with running the hearing outside the city of Karaganda are assigned to the disputing Parties. Arbitration may require the Parties to provide a preliminary guarantee of reimbursement of these expenses. In case the Parties fail to comply with such a requirement of the Arbitration Court, the arbitration shall be conducted in the city of Karaganda.
Article 12. Confidentiality
12.1 The Arbitration Chairman, the Arbitrators, the Parties and invited persons participating in the proceedings are obliged to respect the confidentiality of information on the dispute being resolved.
12.2 The persons not involved in the process may be present at the meeting only with the consent of the Parties.
ARBITRATION PROCEEDINGS
Article 13. Registration of a statement of claim
13.1 A statement of claim is registered in the Arbitration by the Arbitration Secretary and within 3 working days is transferred to the Arbitrator appointed by the Chairman of the Arbitration to reviewing and preparation for the arbitration proceedings.
13.2 A claim may be brought jointly by several plaintiffs or to several defendants (complicity in the case). A copy of the statement of claim is forwarded to the defendant. Each of the plaintiffs or defendants appears in the case on their own or assigns, on the basis of a power of attorney, the conduct of the case to one of the accomplices.
Article 14. Content of a statement of claim
14.1 A statement of claim shall be submitted to the Arbitration in writing.
14.2 The statement of claim must contain:
1) the name of the Arbitration;
2) the date of submission of the statement of claim;
3) the names of the Parties, their postal addresses and bank details;
4) justification of the application to Arbitration;
5) claims of the plaintiff;
6) the circumstances on which the plaintiff bases his claims;
7) the evidence supporting the grounds of the claim;
8) the price of the claim if the claim is to be assessed;
9) the calculation of the collected or disputed amount, settlement of the penalty.
14.3 The statement of claim must be signed by the plaintiff or his representative with the attachment of the original power of attorney or other document certifying the representative’s authority.
Article 15. Documents attached to the statement of claim
15.1 The statement of claim is accompanied by:
1) a document confirming the payment of the arbitration fee; (original);
2) a document confirming the sending of copies of the statement of claim to the defendant or his representative, as well as to the third Parties;
3) a power of attorney or other certified document proving the authority of the representative;
4) the documents and other materials confirming the circumstances on which the plaintiff bases his claims;
5) the petitions of the plaintiff for postponement, installment, exemption from payment of expenses of arbitration, including fees, or reduction of their amount, on securing the claim, demanding evidence and other petitions, if they are not stated in the statement of claim.
6) the copies of the charter, certificate or reference about the state registration (re-registration), decision on
the appointment of the executive body, if the claim is filed by a legal entity;
7) a document containing an agreement on the transfer of the dispute to the arbitration.
15.2 During the proceedings, the Parties, at the request of the Arbitrator/Arbitration, submit to the review and/or study the originals of the documents, attached to the statement of claim in the photocopies.
15.3 Unless otherwise is agreed by the Parties, copies of all documents, materials and information that are provided to the Arbitration by one of the Parties shall be transferred to the other Party be the Arbitration within seven calendar days from the date of their receipt by the Arbitration. Expert opinions shall be submitted to the Arbitration by the Parties for review before the beginning of the current stage of the arbitration. The order of transfer of copies of the documents, materials and information is determined taking into account the requirements established by the Articles 9.2-9.4 and the Article 27 of these Regulations.
Article 16. Cost of a claim
16.1 The cost of a claim is defined:
1) in the claims for recovery of sums of money – the recovered amount;
2) in the claims for reclamation of property – the value of the claimed property;
3) in the claims for enforcement of pledge – the value of the subject of pledge;
4) in claims for impugned action or inaction – the amount determined on the basis of available data on the property interests of the plaintiff, depending on the impugned action or inaction;
16.2 In claims consisting of the several claims, the amount of each claim must be determined separately, and the price of the claim is determined by the total sum of all claims. If the plaintiff has not defined or incorrectly defined the price of the claim, the Arbitration may, on its own initiative, define the value of the claim on the basis of the available data. For each contract (agreement), the claim is presented separately.
Article 17. Costs of the arbitration proceedings
17.1. For each claim filed, the plaintiff must pay an arbitration fee that includes administrative expenses and arbitrators’ fees. The document confirming the payment of the arbitration fee is attached to the statement of claim in the original.
17.2. The Chairman of the Arbitration Court has the right, by the petition of the plaintiff attached to the statement of claim, to release him from paying arbitration fee, reduce the amount of the arbitration fee, or grant a deferral or installment payment of the arbitration fee if there are good reasons (disability of the 1st-2nd groups, participation in military operations, incurable disease, the presence of at least five dependent minor children, etc.). Under the motivated petition of the claimant, which is a legal entity, the Chairman of the Arbitration Court has the right to reduce the amount of the arbitration fee, or to grant a deferral or installment payment.
17.3. The amount of the arbitration fee, the procedure of its payment and distribution, as well as the procedure for covering other expenses of the arbitration proceedings is established by the Appendix No.1 to these Regulations, which is its integral part.
Article 18. Return of a statement of claim
18.1. Arbitrator\Arbitration within 5 working days from the date of registration of the statement of claim returns the statement of claim, if:
1) there is no arbitration agreement between the Parties;
2) the claim was submitted to the Arbitration Court, which is not provided for in the arbitration agreement;
3) the matter of the claim is beyond the scope of the arbitration agreement;
4) interests of the third Parties that are not the Parties to the arbitration agreement are affected;
5) the statement of claim was signed by a person who does not have the authority to sign it;
6) the plaintiff submitted an application for the return of the statement of claim;
7) there is a dispute between the same Parties, on the same subject and on the same grounds in the proceedings of the same or another arbitration.
18.2. When the claim is returned, the Arbitrator/Arbitration issues a reasoned ruling.
18.3. The return of the application does not prevent the plaintiff from re-applying to the proper Arbitration with the same claim to the defendant, on the same subject and on the same grounds, in compliance with the requirements established by the legislative acts of the Republic of Kazakhstan, the Arbitration Regulations or the Parties’ agreement.
Article 19. Suspension of a statement of claim
19.1. In case of inconsistency of the statement of claim and the documents attached to it to the requirements of the Regulations, the appointed Arbitrator, within 5 working days from the date of registration of the statement of claim, issues a ruling on suspension of the claim indicating the deficiencies and setting a time limit for their elimination. The ruling on suspension of the statement of claim is sent or handed to the plaintiff in compliance with the requirements of Article 9 of the given Regulations.
The deadline for the elimination of deficiencies, as a rule, should not exceed 15 (fifteen) days from the date of receipt of the said proposal by the Claimant. Until the above shortcomings are eliminated, the case remains suspended.
19.2 In cases where the plaintiff, despite the proposal to eliminate the deficiencies of the statement of claim, does not eliminate them and insists on the proceedings, the arbitration decides on the case or the ruling to terminate the proceedings;
19.3. If the plaintiff fulfills the requirements listed in the ruling within a specified period, the Arbitration will issue a ruling on initiating proceedings in the case. In this case, the statement of claim is considered filed on the day of its re-entering the Arbitration.
Article 20. Initiation of the proceedings on the case. Beginning of the Arbitration proceedings. Rules of Arbitration proceedings.
20.1. If the plaintiff complies with all the requirements set forth in the Rules for the filing of the statement of claim, the Arbitrator, having accepted the statement of claim, within 10 (ten) working days from the moment of its registration, or readmission of the statement of claim after elimination of its deficiencies, makes a ruling on initiating the arbitration proceedings in accordance with the Regulations, in which he notifies the Parties of the date, time and place of preparation for the arbitration proceedings, as well as of the appointed arbitrator (unless otherwise is agreed by the Parties). At the same time the Arbitration invites the Defendant to submit a written re-call (objection) to the statement of claim and evidence in support of its re-call (objection) within a period not later than fifteen calendar days from the date of receipt of the ruling.
20.2 Failure to provide re-call (objection) by the defendant can not be an obstacle to the consideration of the dispute.
20.3. Arbitration proceedings in the permanent Karaganda Arbitration Court are carried out without an oral hearing, on the basis of documents and evidence submitted by the Parties, as well as additional materials and evidence claimed by the Arbitration. If the Parties provide otherwise in the arbitration agreement (arbitration clause) or the request of any of the Parties to hold an oral hearing of the case is made, the Arbitration shall conduct an oral hearing starting from the stage of the arbitration for which such an application was made.
20.4 Rules of the Arbitration Proceedings are developed and approved by the Chairman of the Arbitration,
in accordance with the requirements of the Law of the Republic of Kazakhstan “About Arbitration”, and are an integral part of these Regulations. (Appendix No. ___)
Article 21. Submission of a counterclaim and offsetting of the counterclaims
21.1. The defendant has the right to present a counterclaim on the claimant, provided that there is a reciprocal relationship between the counterclaim and the plaintiff’s claims, and provided that the filing of the counterclaim and its consideration in the Arbitration Court are provided for in the Arbitration clause (arbitration agreement).
21.2. A counterclaim may be brought in during the arbitration proceedings pending a decision on the merits by the Arbitration.
21.3. The same rules apply to the presentation of a counterclaim as to the filing of the original claim; in particular, the counterclaim must satisfy the requirements of articles 13-17 of the Regulations. The issue of acceptance for proceedings, suspension, and the return of a counterclaim is decided by the Arbitration. The filing of a counterclaim in the course of arbitration does not entail changes in the composition of the Arbitration.
21.4. Arbitration has the right to recognize it inappropriate to take a counterclaim and refuse to accept it by the means of return. In this case, the claim can be submitted to the Arbitration in the usual manner.
Article 22. Arbitrator
22.1 An individual who is directly or indirectly not interested in the outcome of the case, who is independent of the Parties and of their affiliated persons, who possesses the necessary knowledge, has a higher education and has at least five years of experience in the profession, has reached the age of thirty five and has given consent to perform the duties of an arbitrator, may be appointed to as an Arbitrator of the Arbitration.
22.2. The arbitrator, who resolves the dispute solely, must have a higher legal education and the work experience in the legal profession not less than five years.
In the case of collegial dispute resolution, the Chairman of the Arbitral Tribunal shall have the higher legal education.
22.3. The arbitrator cannot be a person:
1) elected or appointed by the judge in accordance with the procedure established by the law of the Republic of Kazakhstan;
2) recognized by the court in the manner established by the legislation of the Republic of Kazakhstan, as incapable or partly incapacitated;
3) who has an persistent or outstanding conviction, or a person who is charged with a criminal offense;
4) being a civil servant, a deputy of the Parliament of the Republic of Kazakhstan, a deputy of a maslikhat who carries out his activity on a permanent or exempt basis, paid for at the expense of the state budget, and a serviceman.
Article 23. Composition of the arbitration tribunal
23.1 In a permanent Arbitration, in accordance with the Article 14, paragraph 3 of the Law of the Republic of Kazakhstan of 08.04.16. “About arbitration”, the Arbitration Tribunal shall be formed in accordance with the procedure set forth in these Regulations by appointing the Arbitrators by an order of the Director of Karaganda Arbitration Court LLP (Karagandinskiy Arbitrazhniy Sud LLP) on the basis of the request of the Arbitration Chairman, with submission of the recommendation to the Arbitration Chamber of the RoK.
23.2. The permanent Karaganda Arbitration Court (Arbitration) maintains the Register of Arbitrators. The information on the permanent Arbitration, including its legal address and the Regulations, as well as the Register of Arbitrators are posted on the Internet resource of Karaganda Arbitration Court LLP (Karagandinskiy Arbitrazhniy Sud LLP) at www.kasud.kz. If there is a written consent of the Parties to the dispute, information on Arbitration decisions may be posted on the Internet resource of Karaganda Arbitration Court LLP (Karagandinskiy Arbitrazhniy Sud LLP) at www.kasud.kz.
23.3. All disputes in the Arbitration are dealt with solely by the Arbitrator appointed by the Chairman of the Arbitration.
23.4 The Parties have the right to make a written request for collegial consideration of the dispute. At this, the Parties confirm their consent in writing and undertake an increase of the Arbitration fee related to the payment of the fees of the additional Arbitrators involved. In the case of collegial consideration of the dispute at the request of the Parties, the composition of the panel should be odd. If the Parties have filed an application to consider the dispute collegially, the Arbitration Tribunal shall be formed by the Chairman of the Arbitration. At this, each of the Parties has the right to independently determine the candidature of the Arbitrator, from among the members of the Register. The Board of the Arbitrators determined by the Parties is headed by the Chairman of the Arbitration.
23.5. In case of the review of the dispute due to the newly discovered circumstances, the dispute is considered by the panel of three Arbitrators appointed by the Chairman of the Arbitration.
Article 24. Notification of the Parties about the commence of the arbitration proceedings
24.1 The Arbitrator, upon completion of the preparation of the case for arbitration, provides the Parties with a notification of the venue, date and time of the arbitration proceedings. The notification is sent in writing, by postal service, by registered mail without notice, or in the form of an electronic message by cellular communication, by a telephone message to the fixed telephone number. Notifications sent to addresses and telephone numbers indicated by the Parties, are considered received by the Parties from the moment of dispatch, and the Parties are considered duly notified. In case of changing the address or phone, the Party is obliged to notify the other Party about this, and together the Parties are obliged to make appropriate changes to the agreement/contract and the relevant arbitration clause (arbitration agreement) before the dispute arises or to notify the Arbitration in the form of an addendum to the statement of claim.
24.2. The responsibility for ensuring the proper operation of the telephone to ensure the reception of the message of the Arbitrator, as well as the actual presence at the address of the registered letter delivery and the timely appearance at the post office for its receipt, if the delivery of the registered letter by the postman occurred in the temporary absence of the Party, lies on the Party to which the notification is addressed.
24.3 Not making, late entry into the agreement/contract (to the arbitration clause or agreement) of the changes that occurred in the details of the Parties, failure to provide conditions for receiving mail and e-mail, deprives the Party of the right to refer to the failure to get the notification from the Arbitrator/Arbitration, as the basis for improper notification at further movement of the arbitration.
Article 25. Provisional measures and evidence obtaining.
25.1 Unless otherwise is agreed by the Parties, the Arbitration may, at the request of either Party, order such measures to secure a claim in respect of a dispute that it (the Arbitration) deems necessary, and it issues corresponding ruling. On the basis of this ruling, the Party during the arbitration proceedings has the right to apply to the court with a request for securing the claim. The court’s undertaking of measures to secure the claim is not incompatible with the arbitration agreement (clause).
25.2 An application for securing the claim being considered in the Arbitration is submitted by the Party to the court at the place where the Arbitration proceedings are conducted or at the location of the property for which interim measures can be taken.
25.3 The ruling on the cancellation of interim measures is canceled by the court that made the ruling on the taking of interim measures at the request of one of the Parties. The arbitrament on refusal in satisfaction of claims is the ground for the court to cancel interim measures.
25.4 The Arbitration or the Party to the dispute may, with the consent of the Arbitration, apply to the court for assistance in obtaining evidence. This appeal is considered by the court in accordance with the requirements of the Civil Procedural Code of the Republic of Kazakhstan.
Article 26. Failure to submit documents or failure to appear by the Party
26.1 Failure to submit the documents and other materials, including failure to attend an Arbitration session by one of the Parties or their representatives duly notified of the time and place of the Arbitration meeting, are not an obstacle to arbitration and making the decision of the Arbitration on the basis of factual materials and evidence, if the reason for non-submission of documents and other materials or non-appearance at the arbitration meeting was considered disrespectful by the Arbitration.
26.2 Failure by the defendant to object to the claim can not be considered as recognition of the plaintiff’s claims.
Article 27. Receipt of written communications by the Parties
27.1. If the Parties have not agreed otherwise:
1) any written communication is deemed received if it is delivered to the addressee personally, at his permanent residence or postal address, when such can not be established by reasonable inquiry, a written communication is deemed received if sent to the last known location by registered mail with notification of its delivery, a telephone message or a telegram, a text message on the subscriber number of the cellular communication or electronic address, as well as using other means of communication, providing fixing of this message;
2) a written communication is considered received on the day of such delivery.
Article 28. The rights of the Parties
28.1. Parties involved in arbitration proceedings are entitled to:
1) get acquainted with the case materials and make copies of these materials;
2) present evidence;
3) to submit requests, challenge to the Arbitrators;
4) ask questions to participants in the process, give oral and written explanations;
5) present their arguments on all issues arising during the process;
6) to object to the requests and arguments of the other Party;
7) to get acquainted with the minutes of the Arbitration session and to submit written comments on it;
8) send petition to the court to enforce the arbitrament in accordance with the legislative acts of the Republic of Kazakhstan;
9) in the cases provided for in this Law, file an application for the cancellation of the award;
10) to finish the case with a settlement of claim or agreement on the settlement of a dispute (conflict) in the order of mediation.
Article 29. Maintenance of order
29.1 The dispute in Arbitration is considered in private session. The Parties are obliged to observe the procedure established in the meeting and obey unquestioningly the orders of the chair of the Arbitration.
Article 30. Disqualification of an Arbitrator, Expert and Translator
30.1. Each of the Parties has the right to declare the challenge of the Arbitrator if there are circumstances that raise reasonable doubts about their impartiality or independence, in particular if it can be assumed that he is personally, directly or indirectly, interested in the outcome of the case.
30.2 The written application of the Party for challenge, containing its motives, must be submitted no later than five (5) calendar days after the Party was informed about the formation of the Arbitration Tribunal, or after the Party has found out about the circumstances that may serve as grounds for challenge. A petition for challenge made later than the deadline is considered only if the reason for the delay in the petition for challenge is recognized as valid.
30.3. The issue of the Arbitrator’s challenge is resolved solely by the Arbitrator or by the Chairman of the Arbitration in the composition of three Arbitrators determined by the Chairman of the Arbitration.
30.4. The Arbitrator may also declare self-rejection on his own initiative.
30.5. For the same reasons and in the same manner as specified in paragraph 30.2 of this article, experts and interpreters participating in the proceedings may be challenged. In this case, the issue of challenge is decided by the Chairman of the Arbitration.
Article 31. Termination of powers of an Arbitrator
31.1. If the Arbitrator turns out to be legally or actually incapable to perform his duties due to illness, in connection with the death or refusal of his powers to consider the dispute or for other reasons does not perform these functions without undue delay, his powers may be terminated by the Chairman of the Arbitration.
31.2. The powers of the Arbitrator are also terminated in cases provided for in Article 30 of these Regulations.
31.3. The powers of the Arbitrator are terminated upon the making of a decision on a particular case. If it is necessary to correct or interpret the Decision, to issue an additional Decision, to perform other procedural actions, the Arbitrator’s powers are renewed and then are terminated after he’d performed the necessary procedural actions.
Article 32. Changes to the composition of the Arbitration
32.1. If the Arbitrator has been challenged or can not participate in arbitration proceedings for other reasons, another Arbitrator is appointed by the Chairman of the Arbitration in accordance with the rules that were applied when appointing the Arbitrator being replaced.
32.2. Appointed by the way of replacement, the Arbitrator has the right to schedule the repeat hearings on the case.
Article 33. Witnesses
33.1 The Parties have the right to invite witnesses to the Arbitration session, notifying the Arbitration Tribunal in advance. The interested Party ensures the attendance of witnesses in the meeting by itself.
Article 34. Appointment and execution of an examination
34.1. Arbitration with the suspension of the arbitration proceedings on its own initiative or at the request of any of the Parties may appoint an expert examination to clarify the issues arising in the resolution of the dispute that require special knowledge and require any of the Parties to provide the information, documents, other materials, items and property for the expert examination.
34.2. The nomination of an expert or the experts, as well as the questions that they must answer to, is determined by the Arbitration. The expert testimony must be submitted in writing.
34.3. If the Parties object to the initiative of the Arbitration to carry out the examination, evade participation in the examination or obstruct its conduct (they do not appear for examination, do not provide experts with the information, materials and the opportunity to subject them to the necessary investigation), the Arbitration has the right to recognize the fact for the clarification of which the examination was appointed, proven or disproved, and to issue an appropriate ruling.
34.4. At the request of any Party or at the discretion of the Arbitration, an expert, after submitting an expert testimony, shall participate in the Arbitration session at which the Parties and the Arbitration are given the opportunity to ask questions to the expert related to the expert examination and to the expert testimony submitted .
Article 35. Postponement and suspension of an arbitration proceedings
35.1 If necessary, at the request of the Parties or on the initiative of the Arbitration, the arbitration proceedings may be postponed or suspended. A ruling is made on the adjournment of the hearing of the case or on the suspension of the arbitration proceedings.
Article 36. Settlement agreement and mediation settlement of a dispute
36.1. If the Parties settle the dispute during arbitration proceedings, including by way of mediation, in compliance with the legislation of the Republic of Kazakhstan on mediation, the Arbitration terminates the proceedings and, at the request of the Parties, fix this settlement in the form of an arbitrament on agreed terms.
36.2. The arbitrament on agreed terms must be made in accordance with the provisions of the Article 45 of the Law of the Republic of Kazakhstan “About Arbitration”. Such a decision shall be enforceable in the same way as an arbitrament rendered on the merits of the dispute.
Article 37. Termination of the arbitration proceedings
37.1 The arbitration proceedings are terminated in the following cases:
1) the plaintiff refuses his claim and the refusal is accepted by the Arbitration, unless the defendant does not object to the termination of the arbitration proceedings in connection with his legitimate interest in resolving the dispute on the merits;
2) the dispute submitted to the Arbitration for consideration is not within its competence;
3) there is a decision of a court of general jurisdiction or an arbitrament entered into legal force and accepted for the dispute between the same Parties, on the same subject and on the same grounds;
4) the Parties have come to an agreement on termination of the arbitration proceedings;
5) a legal entity that is a party to the arbitration proceedings is liquidated;
6) the death of an individual who is a party to the arbitration proceedings, or he was declared dead or recognized as missing.
ARBITRAMENT
Article 38. Form and content of the arbitrament
38.1. The arbitrament is written and signed by the Arbitrators (sole arbitrator).
38.2 The Arbitrator/Arbitration has the right to disclose to the Parties, in oral proceedings, the resolution part of the decision. The arbitrament in full is made within a period not later than 10 (ten) working days after which the original of the arbitrament is handed to/sent to the Parties.
38.2 If the arbitration proceedings were carried out collegially, in the absence of the signature of any of Arbitrators’ the reason for his absence is indicated. An arbitrament may not be signed by the Arbitrator having a dissenting opinion, which in writing must be attached to the arbitrament.
38.3. The arbitrament shall specify:
1) the date of making the decision;
2) the place of arbitration, determined in accordance with Article 22 of the Law “About Arbitration”
3) the composition of the arbitration;
4) the justification of the competence of arbitration;
5) the name of the Parties to the dispute, the names and initials, the positions of their representatives, indicating the authorities;
6) the claims of the plaintiff and the defendant’s objection;
7) the essence of the dispute;
8) the circumstances of the case found out by the Arbitration, the evidence on which the findings of the Arbitration on these circumstances are based, the regulatory legal acts that governed the Arbitration in making the decision;
9) the conclusions of the Arbitration on satisfaction or refusal in satisfaction of each claim applied;
10) the amount of expenses related to the resolution of the dispute in the Arbitration, the distribution of these expenses between the Parties and, if necessary, the time and order of execution of the decision taken.
Article 39. Correction and explanation of the arbitrament.
Additional arbitrament
39.1. Within sixty calendar days after receipt of the arbitrament:
1) either of the Parties, having notified the other party about this, may ask the Arbitration Court to correct any mistakes in the calculations, misprints or typos or other errors of a similar nature;
2) either of the Parties, having notified the other party about this, may ask the Arbitration to give an explanation of any particular item or part of the decision taken.
39.2 The Arbitration is obliged to give, within a period of not less than thirty calendar days from the time of the request of any of the Parties for an explanation, the clarification of any point or part of the arbitrament, or to correct the arbitrament accordingly by issuing the relative ruling. Clarification of the arbitrament is an integral part of the arbitration decision.
39.3 Upon the request of either Party within sixty days from the receipt of such request, or on its own initiative (after due notification of the Parties to the dispute), within sixty days from the date of the arbitrament, the Arbitration eliminates the mistakes in the calculations, misprints or typos, or other errors of a similar nature;
39.4. Unless otherwise is agreed by the Parties, either Party may, within sixty calendar days after receipt of the arbitrament, request the Arbitration Tribunal to make an additional arbitrament regarding the claims that were made in the course of the arbitration, but are not reflected in the decision. The Arbitration, if it considers the request as the justified one, must make an additional arbitrament within sixty calendar days after its receipt.
Article 40. Revision of the arbitrament under newly discovered circumstances
40.1 An arbitrament may be reviewed at the request of one of the Parties to the arbitration agreement or another person whose rights are affected by the newly discovered circumstances. The grounds for reviewing the arbitrament due to the newly discovered circumstances include:
1) essential circumstances that were not and could not be known to the applicant during the arbitration proceedings;
2) deliberately false testimony of the witness established by the court verdict that came into force, deliberately false testimony of the expert, knowingly incorrect translation, falsification of documents or material evidence, which entailed the adoption of an illegal or unjustified decision;
3) the criminal actions of the Parties, other persons participating in the case, or their representatives or the criminal acts of the arbitrator, committed during the consideration of this case, established by the court verdict that has entered into force;
4) the recognition by the Constitutional Council of the Republic of Kazakhstan of a law or other normative legal act that was applied by the arbitration tribunal in the making the arbitrament as unconstitutional.
40.2. The application for review of the arbitrament due to the newly discovered circumstances is made and reviewed by the Arbitration that has made the decision, within three months from the date of finding out the circumstances that served as the basis for the review. Cases for newly discovered circumstances are reviewed and resolved by the Arbitration within a period of up to one month.
40.3 If it is impossible for the Arbitration Tribunal that made the decision, to get together in its previous composition, the application for review of the decision due to the newly discovered circumstances is considered by the new Arbitration Tribunal formed in accordance with the procedure established by these Regulations.
Article 41. Execution of the arbitrament
41.1. The decisions of the Arbitration are executed by the Parties voluntarily within the period specified in the decision.
If the deadline for execution is not specified in the arbitrament, it is a subject to immediate execution.
- 2. Decisions that were not carried out within the specified period voluntarily are carried out in accordance with the current civil procedural legislation of the Republic of Kazakhstan.
41.3 The compulsory enforcement of the arbitrament is carried out in accordance with the rules of enforcement proceedings that are in effect at the time of execution of the decision.
41.4 The Party, in whose favor the arbitrament is rendered, applies to the court of the general jurisdiction at the place of making the arbitrament, with the application for the issuance of the order of enforcement. The received order of enforcement is presented by the Judgment creditor for enforcement in the manner prescribed by the legislation of the Republic of Kazakhstan on enforcement proceedings. Additional costs associated with enforcement of the decision are assigned to the Party that did not voluntarily fulfill the decision.
Образование: Таджикский Государственный Университет им.В.И.Ленина, Юрист
Лёвкина Тамара Алексеевна
