The form and content of the application for the issuance of a writ of execution Jurisdiction and State Duty

In accordance with Part 1 of Article 253 of the CPC, an application for compulsory enforcement of an arbitral award is filed.:

at the place where the dispute is being considered by arbitration;

at the debtor's place of residence;

at the location of the body of the legal entity;

at the location of the debtor's property (if the debtor's place of residence or location is unknown).

However, courts do not always correctly determine jurisdiction.

For example, by the ruling of the Yesilsky District Court of the city of Nur-Sultan dated December 28, 2020, Simofeeva A.I.'s application for the issuance of a writ of execution was returned by the decision of the permanent Arbitration Court of the city of Nur-Sultan dated November 23, 2020, to recover the amount of debt and arbitration fee from Emperum LLP.

The court reasoned its conclusions by the fact that the application is not subject to review by the court, since the location of the permanent arbitration office in the city of Nur-Sultan belongs to the territory of the district.

Baikonur of the city of Nur-Sultan, the debtor of "Emperum" LLP is registered in the city of Almaty.

By the ruling of the judicial board for Civil cases of the Nur Sultan City Court dated January 28, 2021, the court's ruling was canceled, the application was sent for reconsideration to the same court, since the court established that the Arbitration Court of the city of Nur Sultan is located on the territory of the Ilsky district. Therefore, the Esil District Court had no grounds for returning the application.

By the ruling of the Saryarkinsky District Court of Astana dated August 20, 2019, the application of ALAM 2018 LLP for the issuance of a writ of execution for an arbitration award to recover the amount of debt from ECOTECHNOLOGY KZ LLP was returned.

The court's conclusions on the return of the application are motivated by the fact that the parties to the dispute were legal entities, and therefore the issue of issuing a writ of execution is subject to consideration by the specialized inter-district economic court of the city of Nur-Sultan.

The court of appeal overturned the court's rulings, as the arbitration court that issued the decision was registered in the Saryarkinsky district, and therefore the application is under the jurisdiction of the Saryarkinsky District Court of the city of Nur Sultan.

The courts, by incorrectly defining jurisdiction, create red tape.

State duty

Along with the need to attach the documents provided for in part 2 of Article 253 of the CPC, the recoverer is obliged to pay the state duty.

In accordance with subparagraph 11) of paragraph 1 of Article 610 of the Tax Code, a state fee of 5 MCI is levied on applications for the issuance of a duplicate writ of execution, applications for the issuance of writ of execution for the enforcement of decisions of the arbitration and foreign courts.

If the state fee is not paid, such an application is returned to the applicant without consideration on the basis of part 2 of Article 253 of the CPC, in accordance with the procedure provided for in part 2 of Article 152 of the CPC.

Payment of a state fee in amounts that do not comply with the requirements of the Tax Code is also the basis for returning an application.

An analysis of judicial practice has shown that the courts comply with the law on the payment of state fees.

The subject of the application

In accordance with Part 1 of Article 253 of the CPC, the party to the arbitration proceedings in whose favor the award was made (the recoverer) has the right to apply to the court for compulsory enforcement of the award.

Other persons do not have this right.

For example, First Economic Arbitration LLP appealed to the court with a request to issue a writ of execution to recover the arbitration fee, citing the lack of voluntary enforcement of the arbitration award by the defendants.

By the ruling of the Karatau District Court of Shymkent dated October 14, 2022, the application was satisfied, a writ of execution was issued for the joint recovery from Oasis-S LLP, A.S. Smaglov in favor of Agrarian Credit Corporation JSC of the amount of debt in the amount of 629 128 189.66 tenge, arbitration fee in the amount of 12 582 563.79 tenge.By the ruling of the Judicial Board for Civil Cases of the Shymkent City Court dated December 15, 2022, the ruling was canceled, and the application was refused. The court motivated the annulment of the judicial act by the fact that only the arbitration court has the right to apply for a writ of execution, in favor of which the arbitration decision was rendered, in this case the recoverer is JSC Agrarian Credit Corporation.

The First Economic Arbitration LLP filed an application motivated by the need to collect court costs.

The Court of cassation agreed with the conclusions of the Court of Appeal. He justified the conclusions by the fact that the issues of reimbursement of expenses related to dispute resolution in arbitration, including arbitrators' fees and arbitration costs, are regulated by chapter 5 of the Law. The arbitrators have the right to require the parties to provide security for the costs incurred by the arbitrators in connection with dispute resolution in arbitration.This means that in order to enforce an arbitral award in part to reimburse arbitration costs, the arbitral tribunal has the right to require the provision of collateral from the parties to the arbitration.

Thus, in the case of an application for the issuance of an enforcement list, not by the party to the arbitration proceedings in whose favor the arbitration decision was rendered (by the recoverer), such an application is subject to return without consideration.

Article 2 of the Law defines the concept of "arbitration", "arbitrator".

Arbitration is an arbitration formed specifically for the consideration of a specific dispute or permanent arbitration.

An arbitrator is an individual elected by the parties or appointed in accordance with this Law and/or the rules of the relevant arbitration to resolve a dispute.

Thus, the arbitrator does not belong to the parties to the arbitration dispute. Therefore, he does not have the right to apply to the court for a writ of execution based on Article 253 of the CPC.

The form and content of the application for the issuance of a writ of execution

According to Part 2 of Article 253 of the CPC, an application for the issuance of an enforcement list must comply with the requirements of the sub-paragraphs 1), 2), 3), 5), 7) and 8) parts 2 and 4 of Article 148 of the CPC.

The following documents are attached to the application for the issuance of a writ of execution:

the original or a copy of the award. A copy of the permanent arbitration award is certified by the head of this arbitration. A copy of the arbitration award for the resolution of a specific dispute must be notarized;

the original or a notarized copy of the arbitration agreement concluded in accordance with the procedure established by law.

It should be noted that these norms in the CPC fully comply with the requirements of the New York Convention regarding the requirement to present only two documents to a competent court - the award itself and the arbitration clause.

If the application submitted to the court does not comply with the requirements of part 2 of Article 253 of the CPC, it is subject to return without consideration in accordance with the procedure established by part two of Article 152 of the CPC (amended on June 10, 2020).

The attachment of the documents provided for in Part 2 of Article 253 of the CPC is a prerequisite for consideration on the merits of an application for the enforcement of an arbitral award.

It is not necessary to request a mark on the arbitration award or a certificate of its entry into force. Such instructions to the court attest to a violation of the procedural legislation.

The CPC contains not only a list of documents to be attached to the application, but also the requirements for the form of identification of documents submitted in copies.:

A copy of the decision of the permanent arbitration court must be signed by the head of this arbitration court.;

A copy of the arbitration award for the resolution of a specific dispute must be notarized;

A copy of the arbitration agreement must be notarized.

For example, by the ruling of the Stepnogorsk City Court of the Akmola region dated March 7, 2019, the application of Denginaselenie LLP for the issuance of a writ of execution by the decision of the International Arbitration Court for the West Kazakhstan region to recover from A.S. Khokhlunov the amount of 140,000 tenge was satisfied.

As follows from the material, copies of the arbitration agreement of the arbitral award are attached to the application, however, the authenticity of the copy is not certified in the manner and in the form provided for in part 2 of Article 253 of the CPC.

Therefore, those courts that return applications for a writ of execution in such cases are doing the right thing, in accordance with paragraph 2 of Article 152 of the CPC.

Qaz Finance Services LLP applied to the court for the issuance of a writ of execution for the enforcement of the decision of the AVAL International Arbitration Court dated December 30, 2020.

By the ruling of the Council of Economic and Social Council of Almaty dated February 16, 2021, left unchanged by the court of appeal, the application was returned, since the arbitration award attached to the application was not verified by the head of this arbitration, and there is no arbitration agreement to which the applicant refers.

LIKELOMBARD LLP (hereinafter referred to as the LLP) applied for the issuance of a writ of execution following the decision of the Edy Sot Arbitration Court dated June 15, 2022 to recover from E.A. Zheksenbaev in favor of a debt in the amount of 50,000 tenge, an arbitration fee in the amount of 18,378 tenge.

By the ruling of the Karasai District Court of the Almaty region dated August 19, 2022, which was left unchanged by the court of Appeal, the application was returned because the original or a notarized copy of the arbitration agreement concluded by Kazdu LLP and Zheksenbaev E.A. was not attached.

The courts may consider applications that do not comply with the requirements of part 2 of Article 235 of the CPC, followed by leaving them without consideration.

Boyan Trkul applied to the court for the issuance of an executive order for the execution of the settlement agreement concluded with Atyrau Regional Football Team LLP and approved by the FIFA Dispute Resolution Chamber, which is a permanent body, the arbitration court.

By the decision of the Atyrau City Court of Atyrau region dated July 10, 2019, the application was left without consideration due to the fact that the arbitration agreement was not attached to the application.

The court considered the said application at a court hearing, while informing the parties about the trial.

Thus, judicial practice is generally different in the Republic. Some courts return applications from the acceptance stage, while others consider such applications at a court hearing and leave them without consideration.

If the application submitted to the court does not comply with the requirements of part 2 of Article 253 of the CPC, it is subject to return without consideration in accordance with the procedure established by part two of Article 152 of the CPC.

The legislator's reference to the need to comply with the procedure provided for in Part 2 of Article 152 of the CPC indicates the possibility of returning the application at the stage of acceptance of the application, including the need to comply with the deadline when deciding whether to return the application.

Applications for the issuance of a writ of execution are often sent to the court in electronic format, which is allowed by the CPC.

Thus, by the ruling of the Semeysky City Court of the East Kazakhstan Region dated September 9, 2020, the application of Denginaselenie LLP for the issuance of a writ of execution against Apet K.N. was returned.

The reason for the refund was that the original arbitration agreement or its notarized copy were not attached to the application sent in electronic format. The attached copy of the loan offer dated November 22, 2016 was not signed by the parties.

In such cases, courts should not act formally; when reviewing applications submitted in electronic format, courts are required to request the defense documents provided for in part 2 of Article 253 of the CPC.

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