Compliance with the pre-trial dispute settlement procedure
In accordance with paragraphs 2 and 3 of Article 296 of the PC, investment disputes are resolved through negotiations or in accordance with a dispute resolution procedure previously agreed upon by the parties. If it is impossible to resolve investment disputes in accordance with the provisions of paragraph 2 of this article, its resolution is carried out in accordance with international treaties and legislative acts in the courts of the Republic of Kazakhstan, as well as international arbitrations determined by agreement of the parties. The dispute resolution procedure is usually established in an investment agreement, which provides for its resolution through arbitration or arbitration, or stipulates the need to comply with a pre-trial dispute resolution procedure. In this regard, the courts, at the stage of accepting or preparing a case, are required to study the terms of the concluded investment agreement for compliance by the party with the pre-trial dispute settlement procedure.
Compliance with the pre-trial dispute settlement procedure
Failure to comply with this procedure is the basis for the return of the claim in accordance with subparagraph 1) paragraph 1 of Article 152 of the CPC or leaving the claim without consideration on the basis of subparagraph 1) of Article 279 of the CPC. Thus, in judicial practice, investors file unsubstantiated petitions for the non-jurisdiction of cases to the courts due to the existence of arbitration clauses in investment contracts. Example: the case of the claim of the Russian State Institution "Department of Ecology of the West Kazakhstan region" to JSC "K" for compensation of environmental damage. The investor's petition for the non-jurisdiction of the dispute to the courts of Kazakhstan due to the existence of an arbitration clause was left without satisfaction, since the obligation to comply with the environmental legislation of the Republic of Kazakhstan is imposed on the investor not by the investment agreement, but by the requirements of national legislation. In certain categories of cases, the pre-trial dispute settlement procedure is provided for by law. According to Article 126 of the EC, an application for decisions, actions (inaction) of officials exercising state environmental control is filed with the court after their appeal to a higher state body or official. In accordance with Chapter 55 of the Customs Code, a mandatory pre-trial procedure has been established for the declarant to appeal to the Appeals Commission the notification of the results of the inspection and (or) notification of the elimination of violations. Example: by a ruling of the Astana city court dated January 26, 2017, the application of "T" LLP to the State Environmental Inspector for Atyrau region D. on recognition of illegal actions and acts was left without consideration, since the plaintiff did not comply with the pre-trial dispute settlement procedure established by law for this category of cases and the possibility of applying this procedure has not been lost. The definition of the Supreme Court of the Republic of Kazakhstan has left this definition unchanged.
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