Comments on article 255. Refusal to issue a writ of execution of the Civil Procedure Code of the Republic of Kazakhstan
1. The court issues a ruling on the refusal to issue a writ of execution for the enforcement of an arbitral award if:1) the party against whom the arbitration award was made will provide evidence to the court that: the arbitration agreement is invalid under the laws of the state to which the parties subordinated it, and in the absence of such indication - under the laws of the Republic of Kazakhstan; the arbitral award was made on a dispute that is not provided for by the arbitration agreement or does not fall under its terms, or contains rulings on issues beyond the scope of the arbitration agreement, as well as due to the lack of jurisdiction of the dispute to arbitration; one of the parties to the arbitration agreement was declared legally incompetent or limited by the court; the party against whom the award was made was not properly notified of the appointment of an arbitrator or of the arbitration proceedings, or for other reasons recognized by the court as valid, could not submit its explanations to the arbitration; there is a court decision that has entered into force, rendered in a dispute between the same parties, on the same subject and on the same grounds. or an arbitral award or a court or arbitration ruling on the termination of proceedings in connection with the plaintiff's rejection of the claim; the award was made possible as a result of the commission of a criminal offense established by a court verdict that entered into force; the composition of the arbitration or the arbitration procedure did not comply with the requirements of the law; the award has not yet become binding on the parties or has been annulled, or its execution has been suspended by a court of the country in accordance with the law of which it was made; 2) the court finds that the enforcement of this award is contrary to public policy of the Republic of Kazakhstan or that the dispute on which the award was made cannot be the subject of arbitration proceedings in accordance with the law.
2. If an arbitral award on matters covered by an arbitration agreement can be separated from decisions on matters not covered by such an agreement, the issuance of a writ of execution for the enforcement of that part of the award that is covered by the arbitration agreement may not be refused.
3. The court shall issue a ruling on the enforcement of an arbitral award, which may be appealed or protested in accordance with this Code.
1. The grounds for refusal to issue a writ of execution provided for in the commented article are set out in an exhaustive manner and are not subject to extensive interpretation. It should also be noted that these grounds for refusal fully comply with article V of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958, ratified by Kazakhstan by Decree of the President of the Republic of Kazakhstan dated October 4, 1995 No. 2485.In accordance with article 8 of the Law on Arbitration, disputes arising from civil law relations between individuals and (or) legal entities may be submitted to arbitration by agreement of the parties.Arbitration also 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, fifty percent or more of the voting shares (stakes in the authorized capital) of which are directly or indirectly owned by the state, on the other, with the consent of the authorized body of the relevant industry.At the same time, arbitration does not have jurisdiction over disputes that affect 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.Also, arbitration does not have the right to consider disputes arising from personal non-property relations that are not related to property interests; related to life and health, privacy, personal and family secrets, and the right to a person's name.It should also be borne in mind that the Law "On Arbitration" defines the terms and requirements for an arbitration agreement.Thus, an arbitration agreement is concluded in writing. It is considered concluded in writing if it is contained in the form of an arbitration clause in a document signed by the parties, or concluded through the exchange of letters, telegrams, telephone messages, teletypograms, faxes, electronic documents or other documents defining the subjects and the content of their will.An arbitration agreement is also considered concluded in writing if it is concluded by exchanging a statement of claim and a response to the claim in court, in which one of the parties proposes to refer the case to arbitration., and the other one doesn't mind it.A reference in a contract to a document containing a condition for the transfer of a dispute to arbitration is an arbitration agreement, provided that the contract is concluded in writing and this reference is such that it makes the arbitration agreement part of the contract.The compliance of the arbitration decision with the public policy of the Republic of Kazakhstan is verified by the court. The use of the institution of public order is possible in exceptional cases when the enforcement of an arbitration award encroaches on the foundations of the rule of law of the Republic of Kazakhstan.
2. There may be cases when the arbitration court goes beyond the scope of the arbitration agreement, resolving issues not covered by it. In these cases, the court must distinguish between the issues that are covered by the arbitration agreement and those that are not covered by such an agreement. The issuance of a writ of execution for the enforcement of that part of the award that is covered by the arbitration agreement may not be refused.
3. The court shall issue a ruling on the enforcement of an arbitral award, which may be appealed or protested in accordance with this Code.
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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