Investors' appeal against decisions, actions (inaction) of government agencies and their officials
Since an investment dispute is understood to be a dispute arising from equal contractual obligations between an investor and a government agency, a separate point of contention is the issue of classifying as such public law disputes considered by courts in accordance with Chapter 29 of the CPC - on investors' appeal against decisions, actions (inaction) of government agencies and their officials. Judicial practice has shown that a government agency, being a party to an investment agreement, exercises its powers to monitor its execution only by issuing an administrative act. Violation of contractual obligations on the part of a government agency in relation to an investor is also expressed in an administrative act adopted by it in the form of a prescription, submission, notification, order, including termination or amendments to this agreement. And accordingly, the investor disputes the specified act in the order of special claim proceedings - Chapter 29 of the CPC. An example is the civil case considered by the rules of the court of first instance in the Supreme Court on the claim of JSC "M" to the State Institution "Department of the Committee for Regulation of Natural Monopolies and Protection of Competition in the Almaty region" on the recognition of illegal and cancellation of the act on the results of an unscheduled inspection, regulations. The dispute was based on the appeal by JSC "M" against the instructions of the state body, which is a party to the investment agreement, on the issue of non-fulfillment of the terms of this agreement and the return of undeveloped amounts. In order to eliminate doubts about the jurisdiction of the case, the Supreme Court sent a ruling to the members of the International Council for giving an appropriate opinion.
As a result, the dispute was recognized by the latter as an investment dispute, since it is related to the fact that the investor violated obligations under the investment contract. The legal status of JSC "M", which is a subsidiary of JSC "S", a quasi-public sector organization, has also caused some controversy. According to paragraph 2 of Article 273 of the Tax Code, it does not regulate relations related to the implementation of investments from the state budget. The court found that non-governmental borrowed funds were obtained under a state guarantee for the implementation of the investment project "C". By virtue of the provisions of paragraph 1 of Article 213 of the Budget Code, financing investment activities at the expense of a non-governmental loan provided under a state guarantee does not constitute an investment from the state budget and does not indicate that the plaintiff's investment activities are not regulated by the PC rules. In this regard, the plaintiff is recognized as a major investor in accordance with paragraph 4 of Article 274 of the PC. It should be noted that not all public law disputes (tax, customs, etc.) can be recognized as investment disputes (within the jurisdiction of the Supreme Court).
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