On the accession of the Republic of Kazakhstan to the European Convention on Foreign Trade Arbitration of 1961
Decree of the President of the Republic of Kazakhstan dated October 4, 1995 N 2484
I decree: 1. The Republic of Kazakhstan shall accede to the European Convention on Foreign Trade Arbitration, adopted in Geneva on April 21, 1961.
2. This Decree shall enter into force from the date of publication.
President of the Republic of Kazakhstan annex EUROPEAN CONVENTION ON FOREIGN TRADE ARBITRATION* (unofficial text) The undersigned, being duly authorized, meeting under the auspices of the United Nations Economic Commission for Europe,
Noting that on June 10, 1958, at the United Nations Conference on International Commercial Arbitration, the Convention on the Recognition and Enforcement of Foreign Arbitral Awards was signed, desiring to promote the development of European trade by eliminating, as far as possible, some difficulties in the functioning of foreign trade arbitration in relations between individuals and legal entities of various European countries, agreed on in the following resolutions.
Article I. Scope of the Convention
1. This Convention applies: (a) to arbitration agreements of both natural and legal persons who, at the time of conclusion of such an agreement, have their permanent residence or location in different Contracting States, respectively, on the settlement of disputes arising in the course of foreign trade transactions; (b) to arbitration proceedings and decisions, based on the agreements referred to in paragraph 1, paragraph "a" of this article.
2. For the purposes of this Convention: (a) The term "arbitration agreement" means an arbitration clause in a written transaction or a separate arbitration agreement signed by the parties or contained in an exchange of letters, telegrams or teletypes, and in relations between States in which no law requires a written form for an arbitration agreement, - any agreement concluded in the form permitted by these laws; (b) The term "arbitration" means the hearing of disputes by arbitrators appointed for each individual case (ad hoc arbitration) and by permanent arbitration bodies; (c) The term "location of a legal entity" means the place where the office of the legal entity that concluded the arbitration agreement is located.
Article II. An opportunity for public-law legal entities to apply to arbitration
1. In the cases provided for in paragraph 1 of article I of this Convention, legal entities which, according to the national law applicable to them, are considered as "legal entities of public law", will have the opportunity to conclude arbitration agreements. 2. Upon signing or ratifying this Convention or acceding to it, each Contracting State may make a declaration limiting the said possibility to the conditions specified in its declaration.
Article III. On the right of foreign nationals to be arbitrators For the settlement of disputes provided for in this Convention, foreign nationals may be appointed as arbitrators.
Article IV. Implementation of the arbitration process
1. The parties to the arbitration agreement may, at their discretion: a) provide for the transfer of disputes to a permanent arbitration body; in this case, the disputes will be considered in accordance with the rules of such body; b) provide for the transfer of disputes to arbitration in this case (ad hoc arbitration) and in this case, in particular: (i) To appoint arbitrators or, in the event of a dispute, to determine the methods of their appointment; (ii) To establish the location of the arbitral tribunal; (iii) Establish rules of procedure to be followed by the arbitrators.
2. If the parties have provided for submitting disputes that may arise between them to ad hoc arbitration and if one of the parties has not appointed its own arbitrator within 30 days from the date of the respondent's notification of the transfer of the case to arbitration, then, unless the parties have provided otherwise in the arbitration agreement, the arbitrator of this party shall be appointed at the request of the other party by the chairman the competent chamber of Commerce of the country in which, at the time of filing the request for referral to arbitration, the party that did not appoint the arbitrator resides or has its location. This paragraph applies equally to the replacement of arbitrators appointed by one of the parties or the Chairman of the aforementioned Chamber of Commerce.
3. If the parties have provided to submit disputes that may arise between them to arbitration ad hoc, consisting of a single arbitrator or several arbitrators, but if the arbitration agreement does not contain the data necessary for the arbitration process referred to in paragraph 1 of this article, then if the parties have not agreed on this matter and Subject to the case referred to in paragraph 2, appropriate measures will be taken by the arbitrator or arbitrators already appointed. If the parties have not agreed on the appointment of a sole arbitrator, or if the appointed arbitrators could not agree on the measures to be taken, the plaintiff will have to request these measures, if the parties have agreed on the place of arbitration, of his choice, or to the chairman of the competent chamber of commerce of the place of arbitration agreed by the parties., or to the chairman of the competent chamber of Commerce of the place of the respondent's country in which, at the time of filing the request for transfer of the case to arbitration, he resides or has his location; If the parties have not agreed on the place of arbitration, the plaintiff may, at his option, apply either to the chairman of the competent chamber of Commerce of the respondent's country in which he resides or has his headquarters at the time of filing the request for referral to arbitration, or to an Ad Hoc Committee, the composition and nature of whose activities are defined in the annex to this Convention.. If the plaintiff has not exercised the rights granted to him by this paragraph, these rights may be exercised by the defendant or the arbitrators.
4. The Chairman or the Ad Hoc Committee to which the request is addressed may, depending on the nature of the request: (a) appoint a sole arbitrator, if agreed by the parties, a chairman, a super arbitrator or a third arbitrator; (b) replace an arbitrator (or arbitrators) appointed in a manner other than that provided for in paragraph 2 of this article; c) establish the location of the arbitral tribunal, and another place of arbitration may be chosen by the decision of the arbitrators.; (d) Establish, either directly or by reference to the rules of procedure of a permanent arbitration body, the rules of procedure to be followed by the arbitrators if, in the absence of agreement between the parties, the arbitrators themselves have not established their own rules of procedure.
5. If the parties have provided for the transfer of disputes that may arise between them to a permanent arbitration body, but have not appointed this body and have not reached an agreement on this matter, the plaintiff may request such appointment in accordance with the provisions of paragraph 3 of this article.
6. If the arbitration agreement does not specify which type of arbitration - permanent ad hoc - should resolve the dispute between the parties, and if the parties have not reached an agreement on this matter, the plaintiff will be able to send a request for a resolution of this issue in accordance with the provisions of paragraph 3 of this article. The Chairman or the Ad Hoc Committee may either refer the parties to the permanent arbitration body or order them to appoint their arbitrators within the time period specified by the Chairman or the Ad Hoc Committee and take the necessary measures for the arbitration process within the same time period. In the latter case, paragraphs 2, 3 and 4 of this article shall apply.
7. If, within 60 days of receiving a request to perform one of the functions listed in paragraphs 2, 3, 4, 5 and 6 of this Article, the Chairman of the Chamber of Commerce to which the request was sent by virtue of the provisions of one of the above paragraphs, does not take appropriate measures, the person who made the request A task that has not been performed may request the Ad Hoc Committee to take over the functions that have not been performed.
Article V. Recusal of the arbitration court for lack of jurisdiction
1. The challenge of an arbitration court by any of the parties for lack of jurisdiction must be filed with the arbitration court no later than the relevant party submits its statement of claim or its objections on the merits of the case, if this challenge is based on the absence or invalidity of the arbitration agreement or its loss of force; and if it is based on the fact that the issue raised exceeds the powers of the arbitrator, as soon as an issue is raised during the arbitration process, which, in the opinion of the objecting party, falls outside the competence of the arbitrator. A request for withdrawal made at a later stage of the arbitration process may be granted if the arbitral tribunal finds the reason for the delay to be valid.
2. The objections referred to in paragraph 1 to the jurisdiction of the arbitral tribunal that are not raised within the time limits set out in this paragraph may not be raised at a later stage of the arbitration process, as well as in a State court when requesting it to consider the case on its merits or to enforce an arbitral award, unless these objections relate to such matters, the initiation of which is not left to the free discretion of the parties by virtue of the law applicable by the arbitrator, or, accordingly, by virtue of the law, applicable by a competent State court in accordance with the conflict of laws rule of the court's country. The decision of the arbitrator to skip the deadline may be appealed to the State court.
3. The arbitral tribunal, against which the challenge of non-jurisdiction has been filed, should not refuse to hear the case and has the right to decide on its own competence or on the existence or validity of an arbitration agreement or transaction of which this agreement is an integral part, provided, however, that the said decision of the arbitral tribunal may subsequently be appealed. in a competent State court in accordance with the law of the country of the court.
Article VI. Jurisdiction of State courts
1. A challenge by a state court for non-jurisdiction based on the existence of an arbitration agreement and filed in a state court in which a case has been initiated by one of the parties to the arbitration agreement must be filed under threat of loss of the right due to a missed deadline before or at the time of filing objections on the merits of the claim, depending on whether the law of the country of the court considers such a claim. recusal as a matter of procedural or substantive law.
2. When making a decision on the existence or validity of the said arbitration agreement, the State courts of the Contracting States in which the issue is raised will have to be guided, if this issue concerns the legal capacity of the parties, by the law that applies to them, and in other matters: a) by the law to which the parties have subordinated the arbitration agreement; b) in the absence of instructions in this regard, by the law of the country in which the decision is to be made.; (c) If there is no indication of the law to which the parties have subordinated the arbitration agreement, and if, at the time when the matter is submitted to a State court, it is impossible to determine in which country the award should be made, by the law applicable by virtue of the conflict-of-laws rule of the State court in which the case is initiated. The court in which the case is initiated may not recognize the arbitration agreement if, according to the law of its country, the dispute cannot be the subject of arbitration.
3. If one of the parties to the arbitration agreement has filed an application requesting arbitration, the state court, to which the other party may subsequently file a claim on the same subject or on the absence, invalidity or invalidity of the arbitration agreement, must postpone the decision on the competence of the arbitration court until then. until the arbitration court makes a decision on the merits of the case, since the state court does not have sufficient substantial grounds for derogation from this rule.
4. The request by one of the parties for interim measures or provisional security measures in a state court should not be considered either incompatible with the arbitration agreement or as referring the case to a state court for resolution on the merits.
Article VII. Applicable law
1. The parties may, at their discretion, establish, by common agreement, the law to be applied by the arbitrators in resolving the dispute on its merits. If there is no indication from the parties about the law to be applied, the arbitrators will apply the law established in accordance with the conflict of laws rule that the arbitrators deem applicable in this case. In both cases, the arbitrators will be guided by the provisions of the contract and trade customs.
2. Arbitrators shall make a decision as "friendly intermediaries" if there is an agreement between the parties on this matter and if the applicable law permits it. Article VIII. Reasons for the award It is considered that the parties in the arbitration agreement have agreed on the need for a reasoned award, unless they: a) specifically stipulated that the award should not be motivated, or b) did not choose an arbitration procedure in which it was not decided to motivate the award, and if none of the parties did not require in particular, before the end of the oral proceedings or, in the absence of oral proceedings, before the award is drawn up, so that the decision is motivated.
Article IX. Declaring the arbitration award invalid
1. The cancellation of an arbitral award subject to this Convention in one of the States Parties to the Convention will be the reason for the refusal of recognition or enforcement of this award in other States. - parties to this Convention only on condition that the annulment of the award was made in the State in which or under the law of which the award was made, and only on one of the following grounds: a) the parties to the arbitration agreement were, under the law applicable to them, in any way incapacitated or this agreement was invalid according to the law to which the parties subordinated it, and in the absence of such an indication, according to the law of the country where the decision was made.; or (b) the party requesting the annulment of the award was not properly notified of the appointment of an arbitrator or of the arbitration proceedings, or for other reasons was unable to provide its explanations; or (c) the said award was made in a dispute that is not provided for or does not fall under the terms of the arbitration agreement or the arbitration clause in the contract, or contains rulings on matters outside the scope of the arbitration agreement or the arbitration clause in the contract, with the understanding, however, that if rulings on matters covered by the arbitration agreement or clause may If they cannot be separated from those that are not covered by such an agreement or clause, then that part of the award that contains rulings on the following issues:, the arbitration agreement or the arbitration clause in the contract may not be cancelled; or (d) the composition of the arbitration panel or the arbitration procedure did not comply with the agreement of the parties or, in the absence of such agreement, did not comply with the provisions of article IV of this Convention.
2. In relations between the States Parties to this Convention that are simultaneously parties to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958, paragraph 1 of this article restricts the application of article V, 1 "e" of the New York Convention to the cases provided for in paragraph 1 of article IX of this Convention..
Article X. Final provisions
1. This Convention shall be open for signature or accession by the member States of the Economic Commission for Europe and by countries admitted in an advisory capacity in accordance with paragraph 8 of the terms of reference of that Commission.
2. Countries that may participate in certain activities of the Economic Commission for Europe in accordance with article 11 of its terms of reference may become Contracting Parties to this Convention by acceding to it upon its entry into force.
3. The Convention shall be open for signature until the thirty-first of December, one thousand nine hundred and sixty-one inclusive. After that date, it will be open for accession.
4. This Convention is subject to ratification.
5. The Convention shall be ratified or acceded to by depositing an appropriate instrument with the Secretary-General of the United Nations.
6. Upon signing, ratifying or acceding to this Convention, each Contracting Party shall transmit to the Secretary-General of the United Nations a list of chambers of commerce and other bodies of its country, the chairmen of which will perform the functions assigned by Article IV of this Convention to the chairmen of the competent chambers of commerce.
7. The provisions of this Convention shall not affect the validity of multilateral and bilateral arbitration agreements concluded by the Contracting States.
8. This Convention shall enter into force on the ninetieth day after the five countries referred to in paragraph 1 of this article have submitted their instruments of ratification or accession. In respect of each country that ratifies or accedes to this Convention subsequently, this Convention shall enter into force on the ninetieth day after the country has deposited its instrument of ratification or accession.
9. This Convention may be denounced by any Contracting Party by notification addressed to the Secretary-General of the United Nations. The denunciation shall take effect upon the expiration of a period of twelve months after receipt by the Secretary-General of the above-mentioned notification.
10. If, after the entry into force of this Convention, the number of Contracting Parties becomes less than five as a result of denunciation, this Convention shall cease to be in force from the date on which the last of the denunciations becomes effective.
11. The Secretary-General of the United Nations shall inform the countries referred to in paragraph 1, as well as the countries that have become Contracting Parties pursuant to paragraph 2 of this article: (a) declarations made in accordance with paragraph 2 of article II; (b) ratifications and accessions to the Convention in accordance with paragraphs 1 and 2 of this article.(c) Communications received in accordance with paragraph 6 of this article, (d) the dates of entry into force of this Convention in accordance with paragraph 8 of this article, (e) Denunciations in accordance with paragraph 9 of this article, (f) the termination of this Convention in accordance with paragraph 10 of this article.
12. After the thirty-first day of December, one thousand nine hundred and sixty-one, the original of this Convention shall be deposited with the Secretary-General of the United Nations, who shall transmit duly certified copies to each of the countries referred to in paragraphs 1 and 2 of this article.
In witness whereof, the undersigned, being duly authorized thereto, have signed this Convention.
Done at Geneva on the twenty-first of April, one thousand nine hundred and sixty-one, in a single copy in the Russian, English and French languages, all three texts being equally authentic.
President
Republic of Kazakhstan
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