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.

The latest legislative changes are intended to improve the legal mechanism of investor-State dispute settlement. Full and absolute protection of rights and interests of investors has to be reached inter alia through modification of jurisdiction of civil cases – investment disputes[1]. So according to item 4 of Art. 27 and item 2 of Art. 28 of the Civil Procedure Code (CPC) amended and restated[2], civil cases on investment disputes, since January 1, 2016, are to be settled by Court of Astana city and investment disputes with the involvement of “significant investor” are to be settled by the Supreme Court of the Republic of Kazakhstan, by rules of court of the first instance. No changes were made to the legal definition of “the significant investor”, namely, according to item 4 of Art. 274 of the Commercial Code of the Republic of Kazakhstan, “significant investor” means the natural person or legal entity, which carries out investments in the Republic of Kazakhstan at a rate of not less than two million-times amount of the minimum calculation index[3].

Lodging an appeal against decisions of the Court of  Astana city on investment disputes, are possible in Specialized judicial board of the Supreme Court of the Republic of Kazakhstan, composed of not less than three judges of the board (Art. 402 of CPC). According to item 1 of Art. 434 of CPC, judicial acts of Specialized judicial board of the Supreme Court can be reviewed in a cassation by the Supreme Court.

As for the decisions of the Supreme Court hold on investment disputes with the involvement of “significant investor” by rules of court of the first instance, they enter into force from the date of their announcement (item 4 Art. 240 of CPC), and therefore, cannot be appealed.

For improvement of the system of justice, the restated CPC also provides the possibility of attraction of the third parties during consideration of investment disputes (which can express opinion of advisory nature), namely the conclusion of specialists of the International council at the Supreme Court of the Republic of Kazakhstan with participation of authoritative foreign judges and lawyers. The creation of such a council was provided by the Plan of the nation (25th step)[4].

New approach of the state on reforming of the judicial system, legal mechanisms of protection, which the investor will be able to use in case of violation of his rights and interests from the state side, assumes the creation of the most comfortable conditions for doing justice. It has to lead to settlement of disputes with participation (foreign) investors, significant investors, at higher professional level and in shorter terms, and, thereby, promote attraction of new investments to the country

[1] According to item 1 of Art. 296 of the Commercial code of the Republic of Kazakhstan, “Investment dispute” means the dispute, following from contractual obligations between investors, significant investors, and state authorities, in connection with investment activity of the (significant) investor.

[2] The Civil procedure code of the Republic of Kazakhstan, dated October 31, 2015, No. 377-V, enacted since 01.01.2016.

[3]The mount of the Minimum calculation index in 2016 makes 2121 KZT.

[4] The plan of the nation – 100 concrete steps on realization of five institutional reforms of the Head of state Nursultan Nazarbayev (May, 2015)

 

Gaukhar Abdigaliyeva 

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