Category Archives: Litigation & Arbitration

Determination of the governing law of arbitration agreement

It is not infrequent for the parties to fail to specify the governing law of the arbitration agreement (clause) they include in the contract.

If the parties fail to identify the substantive law governing their arbitration agreement, then, depending on the jurisdiction, the arbitration tribunal can choose any substantive law from the following:

  1. The law governing the contract;
  2. The law of the forum;
  3. The law of jurisdiction best suited for resolving the dispute to be arbitrated.

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Reforming of judicial system in respect of investor-State dispute settlement

Since the beginning of the New Year, some provisions of law were brought into force, which are directed on reforming of judicial system for the purpose of improvement of investment climate in the country, namely ensuring performance of guarantees of legal protection of activity of (foreign) investors in the territory of the Republic of Kazakhstan. Continue reading

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Submission of dispute between Kazakhstani companies to international arbitration court. Is it possible?

As a general rule, investors and Kazakhstani entrepreneurs prescribe an arbitration clause in contracts with foreign counterparties and, subsequently submit disputes to international arbitration courts in other states (herein below “international arbitration courts”), and  Kazakhstani residents also sometimes submit their disputes to international arbitration courts. Continue reading

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Reviewing the case by state court when there is an arbitration agreement

We had an issue in practice, what should the state court do when it receives the claim regarding the violation of the works contract, which has the arbitration clause.

At first sight, the court must either reject the claim or return it to claimant before commencing the proceedings, or stop the proceedings or dismiss the claim without prejudice at the stage of preparation the case for the trial. However, existing civil procedure legislation does not oblige to do so. In other words, the legislation lets the state court to commence the proceedings even if there is an arbitration agreement, which we believe is not correct due to the following reasons.

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International Arbitration – practical recommendations

Resolving disputes by way of international arbitration is a relatively new development in Kazakhstan. However, the observations suggest that more and more Kazakhstan companies favour international arbitration as the dispute resolution mechanism in their cross-border contracts.

According to various statistics data, the number of claims brought before international arbitration tribunals against Kazakhstan and Kazakhstan companies has doubled for the last 10 years, and this trend is likely to increase.

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Enforcement of foreign judgments in England and Kazakhstan

There have been an impressive number of recent cases involving CIS parties (including Kazakhstan) heard in English courts. Although CIS companies and individuals frequently choose to litigate in London, there are very few reported cases concerning recognition and enforcement of judgments granted by the CIS courts in England and Wales.

The author has yet to experience Kazakh judgments to be enforced in England and Wales, however the recent Russian case JSC VTB Bank v Skurikhin and others [2014] EWHC 271 (Comm) clearly shows what position the English court might take.

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