Comments on article 501. Recognition and enforcement of decisions of foreign courts, arbitral awards of foreign arbitrations of the Civil Procedure Code of the Republic of Kazakhstan

1. Decisions, resolutions and rulings on the approval of amicable agreements, court orders of foreign courts, as well as arbitral awards of foreign arbitral tribunals shall be recognized and enforced by the courts of the Republic of Kazakhstan, if recognition and enforcement of such acts are provided for by legislation and (or) an international treaty ratified by the Republic of Kazakhstan, or on the basis of reciprocity.

2. The conditions and procedure for the recognition and execution of the acts specified in the first part of this Article shall be determined by law, unless otherwise provided by an international treaty ratified by the Republic of Kazakhstan.

3. The acts specified in the first part of this Article may be submitted for compulsory execution within three years from the date of their entry into force. A missed deadline for a valid reason may be restored by a court of the Republic of Kazakhstan in accordance with the procedure provided for in Article 126 of this Code.

1. Initially, the acts referred to in the first part of this article do not operate outside the territory of the State where they were issued, and acquire legal force in another State only if it recognizes it. By recognizing these acts in the territory of the Republic of Kazakhstan, they are given a status equivalent to the decisions of Kazakhstani courts and arbitrations.The recognition and enforcement of the acts referred to in the first part of this article shall be carried out in accordance with the principle of reciprocity enshrined in bilateral international treaties. Reciprocity means the same attitude of the Contracting Parties to the issue of recognition and enforcement of decisions of the courts and arbitral tribunals of the opposite Contracting Party.

2. The procedure for the recognition and execution of acts specified in the first part of this Article is regulated by this Code and the legislation on enforcement proceedings. If an international treaty ratified by the Republic of Kazakhstan provides for a different procedure, the rules of the international treaty shall apply.Under the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, June 10, 1958), to which the Republic of Kazakhstan acceded in accordance with Presidential Decree No. 2485 of October 4, 1995, each Contracting State The State recognizes arbitral awards as binding and enforces them in accordance with the procedural rules of the territory where recognition and enforcement of these decisions is sought., under the conditions set out in the following articles. The recognition and enforcement of arbitral awards to which this Convention applies shall not be subject to substantially more burdensome conditions or higher fees or charges than those existing for the recognition and enforcement of domestic arbitral awards (article 3 of the Convention of 10 June 1958).In order to obtain recognition and enforcement of an arbitral award, the party requesting recognition and enforcement, when submitting such a request, the:a) a duly certified original award or a duly certified copy thereof; b) an original agreement or a duly certified copy (agreement on the transfer of the dispute to arbitration).If the award or agreement is not set out in the official language of the country where recognition and enforcement of the award is sought, the party requesting recognition and enforcement of the award shall provide a translation of these documents into that language. The translation is certified by an official or sworn translator or a diplomatic or consular institution (article 4 of the Convention of June 10, 1958).

The Agreement on the procedure for the Mutual Enforcement of Decisions of Arbitration, Commercial and Economic Courts in the Territory of the CIS Member States (Moscow, March 6, 1998, ratified by the Law of the Republic of Kazakhstan dated December 30, 1999 No. 10-II, entered into force on January 9, 2001) defines the procedure for the mutual enforcement of decisions of arbitration, economic and the economic courts of the Contracting Parties in cases under their jurisdiction involving economic disputes. The procedure for the mutual enforcement of judgments in cases not covered by this Agreement and the Agreement on the Procedure for Resolving Disputes Related to Business Activities, as well as Other Categories of court Cases, is determined by the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of January 22, 1993 (article 1 of the Agreement of March 6, 1998 year).According to the opinion of the CIS Economic Court, as set out in the decision of February 21, 2007 No. 01-1/2-06, The Agreement of March 6, 1998 provides for a simplified procedure for communication.In accordance with Article 3 of this Agreement, a decision of the competent court of one Contracting Party that has entered into legal force is executed indisputably on the territory of the other Contracting Party.

In order to foreclose on the debtor's property, a petition is sent to the competent court of the Contracting Party with a duly certified copy of the competent court's decision confirming its entry into force, a document confirming the debtor's participation in the court session, and in case of non-appearance, an enforcement document.The order, procedures, limits of recovery and measures to ensure the enforcement of the decision of the competent court are determined by the legislation of the Contracting Party in whose territory the recovery is carried out. The recovery is carried out on the same terms as the execution of the decision of the own court of the given Contracting Party (Article 4 of the Agreement of June 10, 1958).

According to the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters of October 7, 2002 (Chisinau Convention), the following documents are attached to the application for recognition and enforcement of the decision: the decision or its certified copy, as well as an official document stating that the decision has entered into force and is enforceable, or that that it is enforceable before it enters into force, unless it follows from the decision itself.; a document from which it follows that the party against whom the decision was made, who did not take part in the process, was duly and promptly summoned to court, and in the case of her procedural incapacity was duly presented; a document confirming the partial execution of the decision at the time of its transmission; a document confirming the agreement of the parties on cases contractual jurisdiction. The application and the documents attached to it shall be provided with a translation into the language of the requested Contracting Party or into Russian (Article 56 of the Chisinau Convention). The court considering the application is limited to establishing that the conditions provided for in the Convention have been met. If the conditions are met, the court decides on the execution.

3. In the case being commented on, from the date of expiry of the period for the voluntary execution of acts specified in part one of this Article, the period may be restored if it is missed for a valid reason. The procedure for considering a petition for the restoration of this period is provided for in Article 126 of the CPC. The condition for restoring this period is an exceptionally valid reason, which must be proved by the petitioner - the recoverer. It seems that if the deadline set by part 3 of the commented article is missed, then simultaneously with the application for compulsory execution, a petition for the restoration of this period must be submitted, indicating valid reasons and providing appropriate evidence.

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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