Investors in the application must explain in detail the jurisdiction of the dispute, set out the terms of the investment agreement from which contractual obligations arise, and indicate the amount of investments invested in the economy of Kazakhstan in order to confirm their status.
When applying to the Supreme Court or the Astana City Court, applicants - investors in the application must explain in detail the jurisdiction of the dispute, set out the terms of the investment agreement from which contractual obligations arise, and indicate the amount of investments invested in the economy of Kazakhstan in order to confirm their status. The requirements established by the court are correct and justified, since the shortened time frame for preparing the case for trial, considering the case on its merits, and the absence of such a stage as leaving the claim without motion do not allow time to waste on requesting additional evidence to confirm the status of the investor and the jurisdiction of the dispute, and thus create red tape. The problem of providing written evidence on the part of the investor is also related to the fact that such documents (contracts, reports, etc.) are usually stored at the company's head offices outside the Republic of Kazakhstan and, accordingly, the time allotted for the consideration of the case is extremely insufficient to provide them. Therefore, before filing a claim, the investor must collect all the necessary documents and attach them to the statement of claim in order to ensure proper protection of their rights and legitimate interests. For example, LLP "Zh" appealed to the Supreme Court with an application to the State State Revenue Agency for the West Kazakhstan region to declare illegal and cancel the notification of the results of the tax audit.
To confirm his status as an investor, a subsurface use contract concluded with the State Committee for Investments of the Republic of Kazakhstan, Work programs and reports on the fulfillment of contractual conditions (Forms No. 2 – LKU) for the entire period of investment activity were attached to the application, which detailed the amounts invested. A reference is provided to the special conditions (clause) of the subsoil use contract violated by the authorized state body when additional taxes and other mandatory payments were made to the budget. Based on the content of the application and the materials attached to it, the Supreme Court recognized this dispute as an investment dispute and considered it on its merits according to the rules of the court of first instance. 2. JSC "M" appealed to the Supreme Court with a statement to the State Institution "Department of the Committee for Regulation of Natural Monopolies and Protection of Competition in the Almaty region" on recognition as illegal and cancellation of the act on the results of an unscheduled inspection, regulations. The proof of confirmation of the status of a major investor was a trilateral investment agreement concluded with the Ministry of Industry and New Technologies of the Republic of Kazakhstan and the Department of the Agency of the Republic of Kazakhstan for Regulation of Natural Monopolies in the Almaty region, which reflects the amount of investments. In this regard, this dispute was also recognized as an investment dispute and considered on its merits by the Supreme Court. However, there were facts of non-compliance by the applicants (investors, authorized bodies) with the above requirements at the stage of filing claims with the court of first instance, which led to the cancellation by the specialized judicial board of the Supreme Court of three rulings of the Astana City Court on the non-jurisdiction of the case. 1. The Russian State Institution "Department of Ecology for the West Kazakhstan Region" filed claims against JSC "K" for compensation for damage caused to the environment in the amount of 1,264,189,637 tenge and 1,646,440,693 tenge. By the rulings of the Astana City Court dated September 22, 2016, the statements of claim were returned due to the lack of jurisdiction of the cases. The plaintiff has not provided contracts with a government agency or other evidence confirming the investor's investment activities. The court is enraged by the requirement of the necessity of the above.
By the rulings of the specialized Judicial Board of the Supreme Court of November 4 and 10, 2016, the above rulings were canceled. The statements of claim have been returned to the Astana City Court for consideration on their merits. 2. LLP "T" appealed to the court with a statement to the State Institution "Department of the Committee for Regulation of Natural Monopolies and Protection of Competition in Atyrau region" on recognition of illegal actions, expressed in the presentation of requirements for the provision of commercial information. By the ruling of the Astana City Court dated July 22, 2016, the case was sent to the Council of Ministers of Atyrau region due to the lack of jurisdiction of the case. By the ruling of the specialized judicial board of the Supreme Court dated August 19, 2016, the ruling of the court of first instance on the investor's private complaint was canceled, the case was returned to the Astana City Court for consideration on the merits. The Supreme Court concluded that the dispute affects the investor's investment activities, since the nature and scope of the list of requested documentation and information provided in the request indicates that the actual purpose of the request is to verify the activities of T LLP as a buyer-consumer of all goods necessary for its operation. 3. JSC "R" filed an application to the Astana city court to the RSU "Department of State Revenue for the city of Astana" to declare illegal and cancel the act of customs inspection, the decision based on the results of the complaint and notification. By the ruling of the Astana City Court dated September 30, 2016, the application was returned due to the lack of jurisdiction of the case. By the ruling of the specialized judicial board dated November 1, 2016 on the private complaint of the investor, this ruling was canceled, with the referral of the case to the Astana City Court for consideration on the merits. By virtue of paragraph 3 of Article 274 of the Tax Code, investment activity is understood as the activity of individuals and legal entities to participate in the authorized capital of commercial organizations or to create or increase fixed assets used for entrepreneurial activities. During the review of the materials in the court of appeal, it became clear that the main shareholders of JSC "R" are JSC "National Company "K" (58%) and the Chinese state Fund "C" (11%). The main activity of the Company is related to the extraction of hydrocarbon raw materials and its subsequent sale, and the subject of the appeal was the decision of the state body on mandatory customs duties when declaring oil, that is, the dispute is related to the investment activity of the investor. The reason for the cancellation of these definitions was the failure of the plaintiffs, both government agencies and investors, at the stage of filing a claim to substantiate the jurisdiction of the case, attach to the statement of claim a copy of the investment agreements between the government agency and the investor and other evidence confirming the investment activity. All these arguments and evidence are presented by the plaintiffs only in the court of appeal during the consideration of private complaints, which accordingly entails the cancellation of the original ruling (including to eliminate red tape and preserve the statute of limitations).
In this regard, these cancellations cannot be regarded as procedural violations committed by the Astana City Court. Subsequently, in order to eliminate such practices, the specialized judicial board sent letters to government agencies explaining the need to substantiate the jurisdiction of the dispute and the category of the case in the statements of claim, as well as the obligation to attach a copy of the investment agreement to the claim in order to confirm the investor's status. The official website of the Supreme Court has been supplemented with a detailed explanation of the procedure for filing lawsuits in investment disputes, indicating the mandatory list of documents attached to it.
Attention!
Law and Law Law Law draws your attention to the fact that this document is basic and does not always meet the requirements of a particular situation. Our lawyers are ready to assist you in legal advice, drawing up any legal document suitable for your situation.
For more information, please contact a Lawyer / Attorney by phone: +7 (708) 971-78-58; +7 (700) 978 5755, +7 (700) 978 5085.
Attorney at Law Almaty Lawyer Legal Services Legal Advice Civil Criminal Administrative Cases Disputes Protection Arbitration Law Firm Kazakhstan Law Office Court Cases
