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Comments on article 24. Dispute (conflict) resolution through mediation or a participatory procedure. Transfer of the dispute to arbitration of the Civil Procedure Code of the Republic of Kazakhstan
A dispute (conflict) under the jurisdiction of the court that has arisen from civil law relations may, by written agreement of the parties, be resolved through mediation, a participatory procedure, or referred to arbitration when this is not prohibited by law.
The parties may settle the dispute in full or in part by concluding a settlement agreement, an agreement on the settlement of a dispute (conflict) through mediation, or an agreement on the settlement of a dispute through a participatory procedure, or by submitting it to arbitration, when this is not prohibited by law.
The advantages of these alternative dispute resolution methods are as follows: contractual nature of reconciliation; voluntariness; cooperation of the parties; saving time, money, relative formality of the procedure, preservation of relations between the parties in cases of mediation, participatory procedure; confidentiality; the absence of State interference, as well as the principle of legality in arbitration proceedings, which means that arbitrators and arbitrations in their decisions are guided only by the norms of the law applicable by agreement of the parties.
The norms of the CPC oblige the court to take measures to reconcile the parties and assist them in resolving the dispute at all stages of the process.
With the application of conciliation procedures, cases that are considered only in the order of claim proceedings may be completed, that is, with the exception of cases arising from public law relations, unless otherwise provided by the CPC or the law. The participatory procedure is conducted without the participation of a judge through negotiations between the parties with the assistance of dispute settlement by lawyers of both parties.
A settlement agreement, agreements on the settlement of a dispute (conflict) through mediation, a participatory procedure, and definitions on the approval of agreements must comply with the requirements of Articles 176 and 177 of the CPC.
These agreements are executed voluntarily by the persons who have concluded them, in accordance with the procedure and terms stipulated by these agreements. Otherwise, they are subject to compulsory execution on the basis of a writ of execution issued by the court at the request of the person concerned.
The conditions, grounds for the application and execution of alternative dispute resolution methods are regulated in Chapter 17 of the CPC.In addition to the listed alternative dispute resolution methods, this article provides for the possibility of transferring a civil dispute from a state court to arbitration.A dispute may be submitted to arbitration only if there is an arbitration agreement that can be concluded by the parties in writing in respect of disputes that have arisen or may arise between the parties in any particular civil law relationship.
An arbitration agreement in respect of a dispute that is pending before a court may be concluded before a decision on the dispute is made by the said court. In this case, the court issues a ruling on leaving the application without consideration.Disputes arising from civil law relations between individuals and (or) legal entities may be submitted to arbitration by agreement of the parties.
Arbitration has the right to consider disputes between individuals and (or) legal entities of the Republic of Kazakhstan, on the one hand, and government agencies, state-owned enterprises, as well as legal entities with fifty or more percent of voting shares (stakes in the authorized capital) owned directly or indirectly by the state, on the other, with the consent of the authorized body of the relevant industries.
Arbitration is not subject to disputes concerning: the interests of minors; persons recognized as legally incompetent or with limited legal capacity; bankruptcy and rehabilitation; between subjects of natural monopolies and their consumers; arising from personal non-property relations unrelated to property; related to life and health, privacy, personal and family secrets, the right to a person's name; in other cases provided for by law.
The relations arising in the course of the activity of arbitration in the territory of the Republic of Kazakhstan, as well as the procedure and conditions for the recognition and enforcement of arbitral awards in Kazakhstan are regulated by the Law "On Arbitration".
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
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