He is obliged to fulfill contractual obligations and to collect the amount of the fine
The main requirements for satisfied decisions of government agencies are related to the compulsion to fulfill contractual obligations and to recover the amount of the fine.
In each of these cases, the courts conduct a study of the facts and circumstances that led to the violation of contractual obligations.
So, in the case of the claim of the Ministry of Energy to LLP "B" for the collection of a fine and the requirement to fulfill contractual obligations, the court of first instance supported the investor and refused to satisfy the claim. The court of appeal upheld the decision (No. 7119 23-00-2/194).
Resolving the dispute and rejecting the claim, the local courts proceeded from the fact that, in addition to the contract, the financial obligations expressed in the works and envisaged for 2019 were fully transferred to the work program for the period 2020-2022.
Consequently, the fulfillment of obligations for 2019, taking into account their transfer to the current work program, can be carried out by the defendant only upon completion of 2022.
This was brought to the plaintiff, but the state agency continued to challenge the decisions of the courts. The SCUD of the Supreme Court refused to transfer the plaintiff's petition. However, the courts do not always take the side of investors, especially in cases where the law explicitly establishes requirements confirming the arguments of a state agency.
For example, in the case of the claim of MIIR to "T" for invalidation of the license, the plaintiff state agency indicated that the defendant did not have the legal opportunity to explore for uranium and thus the granting of licenses contradicts the requirements of the law (No. 7119-23-00-2/61).
The Court of first Instance noted the plaintiff's arguments as justified on the following grounds.
In accordance with paragraph 3 of Article 70 of the Code "On Subsoil and Subsoil Use", the management program of the state subsoil fund may contain an indication of the territory within which the right of subsoil use may be granted only to a national company for exploration and production or production of hydrocarbons, as well as for exploration or production of uranium at a uranium or rare earth-crane deposit.
Accordingly, these territories, contrary to the legislation, were included in the management program of the state subsoil fund for exploration of solid minerals.
Based on this, the claim was satisfied.
The appellate instance left the decision of the court of first instance unchanged.
The cassation instance, having studied the case materials, decided to refuse to transfer the plaintiff's petition.
At the same time, issues of actions of government agencies that led to the illegal issuance of a license and, as a result, a legal dispute remain outside the scope of judicial review.
These issues should be constantly monitored by the Government of the Republic of Kazakhstan.
Determination of jurisdiction
The dispute between the courts of first instance located in different regions, cities of republican significance and the capital is resolved by the Supreme Court of the Republic of Kazakhstan upon presentation of the relevant regional or equivalent court (Part 2. of Article 109 of the CPC).
Defendants in investment disputes
The defendant is "an administrative body or an official who is sued in court" (subclause 15 of Part 1 of Article 4 of the APPC). In turn, the administrative body according to paragraph 7) of the first part of Article 4 of the APPC is a state body, a local government body, a state legal entity, as well as another organization, which, in accordance with the laws of the Republic of Kazakhstan, are authorized to adopt an administrative act, commit an administrative action (inaction).
The defendant is "an administrative body or an official who is sued in court" (subclause 15 of Part 1 of Article 4 of the APPC). In turn, the administrative body according to paragraph 7) of the first part of Article 4 of the APPC is a state body, a local government body, a state legal entity, as well as another organization, which, in accordance with the laws of the Republic of Kazakhstan, are authorized to adopt an administrative act, commit an administrative action (inaction).
Refunds of claims
Refunds on administrative claims are carried out on the grounds provided for in part two of Article 138 of the APPC.
The basis (subparagraph, part two of Article 138 of the APPC)
2) the claim does not comply with the requirements of the second part of Article 131 of this Code
5) in the proceedings of the same or another court, there is a case on a dispute between the same parties
6) the plaintiff has withdrawn the filed claim
9) the parties have concluded an agreement on reconciliation, mediation or dispute settlement
11) the case is not subject to consideration in the order of administrative proceedings
15) the court refused to restore the missed deadline
17) the case is not within the jurisdiction of this court
A large number of refunds based on subparagraphs 11) and 17) of the second part of Article 138 of the APPC are related to errors made by plaintiffs when filing civil lawsuits with the SMAS.
In accordance with the second part of Article 5 of the CPC, the task of administrative proceedings is a fair, impartial and timely resolution of administrative cases in order to effectively protect and restore violated or disputed rights, freedoms and legitimate interests of individuals, rights and legitimate interests of legal entities in public relations.
It is important to note that public law relations arise between subjects of law in connection with the exercise by one of the participants in relation to the other of their powers.
If we are talking about challenging the terms of a contract, which is a civil contract, then the state body acts in it as a party to the contract and is not associated with the exercise of authority.
Consequently, such cases are considered in civil proceedings.
For example, the SMAS returned the claim, stating that "the defendant's refusal is not an onerous act, does not contain an authoritative expression of will, is not aimed at the emergence, modification and termination of the plaintiff's rights and obligations arising from public relations.
In these circumstances, the claim should be returned, regardless of the wording of the claims, as not subject to consideration in administrative proceedings" (No. 7194-23-00-4/1127).
Or in another case, SMAS noted that "the plaintiff's claims in this case do not relate to public relations, the plaintiff's claims are based on the terms of the Contract concluded between the parties.
The plaintiff disputes the defendant's refusal to extend the Contract.
In this regard, if there is a concluded contract with the state for the implementation of investments, this dispute cannot be the subject of an administrative claim.
Based on the above, the court considers that the claim is not subject to consideration in administrative proceedings" (No. 7194-23 00-4/675). It is with this issue that the largest number of refunds of claims is associated.
It is described in more detail in section 4.1 of this analysis.
Also, we note the following relatively low administrative claims. According to Part 1 of Article 120 of the APPC, reconciliation of the parties is allowed if the defendant has administrative discretion, which is the authority of an administrative body, an official to make one of the possible decisions based on an assessment of their legality, for the purposes and limits established by the legislation of the Republic of Kazakhstan.
In this regard, the APPC does not oblige the judge to take measures to reconcile the parties, as established by Part 1 of Article 174 of the CPC.
This causes a difference in the number of reconciliations in administrative and civil cases.
In the future, it should be borne in mind that if the concept of an administrative contract is introduced into the APPC, the appropriate changes will affect the reconciliation mechanism.
Abbreviations used
1) APPC – Administrative Procedural Code of the Republic of Kazakhstan;
2) CPC – Civil Procedure Code of the Republic of Kazakhstan;
3) Civil Code – The Civil Code of the Republic of Kazakhstan;
4) PC – Business Code of the Republic of Kazakhstan;
5) NP VS – Normative resolution of the Supreme Court of the Republic of Kazakhstan;
6) The Tax Code of the Republic of Kazakhstan;
7) SCUD of the Astana city Court - the judicial board for administrative cases of the Astana city Court;
8) SCAD VS – judicial board for administrative cases of the Supreme Court of the Republic of Kazakhstan;
9) SMAS – Specialized Inter-district Administrative Court;
10) SMES – Specialized Inter-district Economic Court;
11) CGO is a central government agency.
Regulatory sources used
The norms of substantive law that guided the courts in considering investment disputes include the legislative acts currently in force.
The main normative legal acts regulating the issues of disputes of the generalized category are:
1) The Constitution of the Republic of Kazakhstan;
2) Civil Code of the Republic of Kazakhstan dated December 27, 1994 No. 268-XIII;
3) Entrepreneurial Code of the Republic of Kazakhstan dated October 29, 2015 No. 375-V;
4) The Administrative Procedural Code of the Republic of Kazakhstan;
5) The Civil Procedure Code of the Republic of Kazakhstan;
6) Land Code of the Republic of Kazakhstan No. 442 dated June 20, 2003;
7) Budget Code of the Republic of Kazakhstan dated December 4, 2008 No. 95-IV;
8) Code of the Republic of Kazakhstan dated December 25, 2017 No. 120-VI "On Taxes and other mandatory payments to the Budget" (Tax Code), etc.
Attention!
The Law and Law Law Firm draws your attention to the fact that this document is basic and does not always meet the requirements of a specific situation. Our lawyers are ready to assist you in legal advice, drafting any legal document that is suitable for your situation.
For more information, contact a Advokat/Lawyer by phone; +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Lawyer Almaty Lawyer Legal service Legal advice Civil Criminal Administrative cases disputes Defense Arbitration Law Company Kazakhstan Law Firm Court cases
