Issues of allocation of court costs in arbitration proceedings

In accordance with article 56 of the Law, additional costs related to the enforcement of an arbitration award are imposed on the party that did not voluntarily execute the award.

Since the provisions of the Tax Code contain the obligation of the applicant to pay the state fee, and the appeal to the court is caused by the failure to execute the arbitration award voluntarily, we believe it is legitimate for the court to impose the obligation to reimburse the costs of paying the state fee on the debtor, if the application is satisfied.

For example, by the ruling of the court No. 2 of the city of Uralsk dated October 26, 2020, on the application of Money to the Population LLP for the issuance of an executive list, the court, satisfying the specified application, collected from the party who did not comply with the decision voluntarily - Burtai F.N. the state duty was guided by Article 56 of the Law.

However, the generalization showed that the courts do not always correctly apply the norms of the law, which should be guided.

Thus, according to the application of UralmetallInvest LLP for the issuance of an enforcement list, the court recovered court costs from the debtor who did not execute the arbitration award voluntarily, guided by Article 109 of the CPC (definition of the specialized interdistrict economic Court of the West Kazakhstan region dated February 10, 2020).

Article 109 of the CPC cannot be applied in this case.

When collecting court costs, Chapter 5 of the Law, as well as the Rules of Arbitration, are subject to application.

The norm of Article 246 of the CPC does not apply to arbitral awards

The norm of Article 246 of the CPC does not apply to an arbitral award, and inter-judicial courts apply it to arbitral awards.For example, the private bailiff Eskaraeva N.B. (hereinafter - CHSI)she applied to the court with a petition to change the method and procedure for executing the decision of the permanent arbitration court of Bolshoe juriKazakhstan dated March 15, 2019, by foreclosing on an apartment owned by debtors Panteleev O.N., Panteleeva L.A., Stankevicius A.O.

The petition was granted by the ruling of the Ridder City Court of the East Kazakhstan Region dated December 3, 2019, which was left unchanged by the court of appeal. The method and procedure for executing an arbitration award by foreclosing on a fixed apartment have been changed.

It follows from the case file that the above-mentioned decision has entered into legal force and is subject to compulsory enforcement.

On July 24, 2019, the Civil enforcement proceedings were initiated. Upon execution, the debtors were found to have no funds, deposits, or other property. The disputed apartment was provided as collateral under a bank loan agreement, the collateral value was determined at 4,494,000 tenge.

The local courts motivated the satisfaction of the petition by the fact that the debtors had not taken any measures to enforce the arbitration award, they did not have any funds or other property that could be seized, they were jointly and severally liable, and there were no obstacles to foreclosure on the debtors' sole property.

According to part 1 of Article 246 of the CPC, the court that issued the decision or judicial order in the case, as well as the court at the place of execution of the decision, may, at the request of the bailiff and (or) at the request of the parties to the enforcement proceedings, change the method or procedure for its execution, at the request of the parties to the enforcement proceedings, delay or delay the execution of the court decision, if circumstances arise that make the commission executive actions are difficult or impossible.

According to the CPC, all issues that have arisen during enforcement proceedings (changing the method or procedure of execution, postponement or installment, etc.) are resolved by the court if the writ of execution is issued on the basis of judicial acts, i.e. the court must make a decision or a court order accordingly.In cases of this category, the arbitral award is made by arbitration, and the courts may annul or leave the arbitral awards in force.

At the same time, the court, on the basis of Article 253 of the CPC, issues, on the basis of the claimant's application, a writ of execution for the compulsory execution of the arbitration court.

The opinions of the judges of the republic were divided. Some courts consider that the above-mentioned norm of the CPC is applicable only to judicial acts. Therefore, I am denied satisfaction. Other courts consider it possible to apply this rule by analogy.

The first position would be correct, since the literal content of Article 246 of the CPC presupposes the court that issued the decision.

Accordingly, the courts cannot apply a delay or an installment plan for the execution of an arbitral award in relation to arbitral awards, since if the courts apply the norms of article 246 of the CPC in relation to arbitration decisions, the concept of arbitration law will be violated.

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