Disputes over arbitration agreements
According to paragraph 1 of Article 9 of the Law "On Arbitration", an arbitration agreement is concluded in writing. An arbitration agreement 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, faxes, electronic documents or other documents defining the subjects and content of their will. She filed a lawsuit against A "F" LLP (hereinafter referred to as "LLP, pawnshop") to invalidate the arbitration clause in the loan agreement dated March 15, 2018, concluded between the plaintiff and the LLP (hereinafter referred to as the agreement). The claim was satisfied by the absentee decision of the district court No. 2 of Almaly district of Almaty dated October 2, 2018. By a court ruling dated November 5, 2018, the absentee judgment of October 2, 2018 was overturned. On January 10, 2019, a representative of the LLP applied to the court with a request to transfer the case to the court at the location of the LLP. By the ruling of the District Court No. 2 of the Almaly district of Almaty dated January 11, 2019, the civil case was sent to the court of the Baikonur district of Astana. By the ruling of the Judicial Board for Civil Cases of the Almaty City Court dated March 6, 2019, the ruling of the court of first instance was canceled. S.'s statement of claim to LLP for invalidation of the arbitration clause in the loan agreement dated March 15, 2018 was left without consideration. The Judicial Board for Civil Cases of the Supreme Court upheld the ruling of the appellate instance on the following grounds. It follows from the case file that on March 15, 2018, a loan agreement was concluded between the plaintiff and the LLP. In accordance with clause 1.1. of the agreement, the LLP provided the plaintiff with a short-term loan in the amount of 2,600,000 tenge for a period of 92 days, from March 15 to June 15, 2018. In connection with the plaintiff's failure to fulfill obligations for the timely repayment of the loan to LLP on June 13, 2018 to S. a notice of non-fulfillment of obligations was sent and, subsequently, in case of non-repayment of the debt, a claim was filed with the arbitration court.
Disputes over arbitration agreements
Believing that the debt collection dispute was beyond the jurisdiction of arbitration, S. filed this lawsuit with the court. The claim is motivated by the fact that section 9 of the agreement stipulates that all disputes arising from or in connection with this agreement are subject to final resolution in permanent arbitration – A LLP. According to the provisions of the Law, this reservation would be valid if it had been concluded after the grounds for filing a claim had arisen. This reason arose after June 13, 2018, when the pawnshop sent a notice of default to the borrower, but the arbitration clause was contained in the loan agreement itself at its conclusion. In essence, the dispute has not been resolved by the local courts. By the court of first instance, the statement of claim was sent by jurisdiction to the court of the Baikonur district of Astana. When considering the plaintiff's private complaint against the above ruling, the court of appeal concluded that the dispute was not under the jurisdiction of the courts of general jurisdiction and therefore, overturning the ruling of the court of first instance on the transfer of the case by jurisdiction, left S.'s claim without consideration. The Board agrees with the conclusions of the court of appeal in view of the following. According to paragraph 1 of Article 9 of the Law, the arbitration agreement is concluded in writing. An arbitration agreement 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, faxes, electronic documents or other documents defining the subjects and content of their will.
Disputes over arbitration agreements
It follows from the case file that an arbitration agreement has been concluded between the parties, which is set out in clause 9.1 of the loan agreement signed by the parties. This paragraph stipulates that in the event of failure to reach agreement between the parties, all disputes, disagreements and claims arising from or in connection with this agreement, including those relating to its execution, termination or invalidity, are subject to final resolution in permanent arbitration – LLP "A". In accordance with paragraph 1 of article 20 of the Law, arbitration independently decides whether or not it has the authority (jurisdiction) to consider a dispute submitted for its resolution, including in cases where one of the parties objects to arbitration proceedings because of the invalidity of the arbitration agreement. For this purpose, the arbitration clause, which is part of the contract, is interpreted as an agreement independent of other terms of the contract. Thus, the parties to the agreement determined the jurisdiction of this dispute to arbitration, which is why the requirement to invalidate the arbitration clause was subject to arbitration determined by the parties to the agreement, and therefore the conclusion of the court of appeal on the dismissal of the claim is justified.
The plaintiff's references to the application of article 8 of the new version of the Law to disputed relations, indicating that an arbitration agreement on the settlement of a dispute under a loan agreement between a commercial organization and an individual who is not an individual entrepreneur is valid if such an agreement is concluded after the grounds for filing a claim have arisen, cannot be accepted, since the specified The amendments were introduced into the law on January 21, 2019 and do not apply to the legal relations of the parties arising from the agreement dated March 15, 2018., which expired due to execution in August 2018. The previous version of this provision also did not require the defendant to comply with the procedure specified by the plaintiff for concluding an arbitration agreement (after the grounds for filing a claim arose), since an independent loan agreement was concluded with the plaintiff, and not an agreement by joining the standard terms. In addition, given the jurisdiction of the dispute to arbitration, S. was entitled to present these arguments during the arbitration proceedings.
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