The powers of persons who have applied to the court with a request for the annulment of an arbitration award, an application for the issuance of a writ of execution
It should be noted that there are differences in the formalization of the powers of representatives when filing a claim and resolving a dispute in arbitration and when applying to the court for the annulment of an arbitral award or an application for the issuance of a writ of execution.
Thus, representatives who apply for a settlement of a dispute are not required to provide a written notice of protection (representation) and a copy of a lawyer's certificate, and legal consultants are not required to provide a document confirming membership in the chamber of legal advisers, therefore, the specified documents are not subject to arbitration, article 32 of the Law does not provide for such requirements.
According to paragraph 2 of Article 32 of the Law, the powers of representatives of the parties must be executed in compliance with the requirements stipulated by the legislation of the Republic of Kazakhstan.
Persons who have applied for the annulment of an arbitration award or for the issuance of a writ of execution must have a duly executed power of attorney.
Paragraph 1 of Article 53 of the Law stipulates that a petition for the annulment of an arbitration award is filed with the court in accordance with the civil procedural legislation of the Republic of Kazakhstan.
The literal content of the rule of law means that if a representative applies to the court with a request for the annulment of an arbitration award or an application for the issuance of a writ of execution, then his powers must comply with the requirements of Articles 58, 61 of the CPC.
Taking into account the provisions of these legal norms, representatives, when applying to lawyers, must be lawyers of the relevant board of lawyers or members of one of the chambers of legal advisers to provide legal assistance in the form of representation of the interests of persons in court, therefore, in addition to a power of attorney, they must provide the court, if a lawyer, with a written notice of protection (representation) and a copy of the lawyer's certificate, and the legal adviser - a document confirming membership in the Chamber of Legal Advisers.
The actions of courts that return petitions for the annulment of arbitral awards and applications for the issuance of writ of execution submitted to the court by representatives whose powers do not comply with the above requirements of the law comply with the requirements of the law.
For example, Story Technology LTD LLP filed a petition with the court to overturn the arbitration award issued by the representative office of Astana Arbitration LLP in the East Kazakhstan region of Ust-Kamenogorsk on January 19, 2021.
By the ruling of the Judicial Board for Civil Cases of the East Kazakhstan Regional Court dated March 10, 2021, the petition of Story Technology LTD LLP was returned due to the fact that it was signed by a person who does not have the authority to sign it.
The power of attorney issued to lawyer A.B. Kochkarov does not provide for the representative's authority to perform the procedural action of signing a petition for the annulment of the arbitral award.
By the ruling of the Judicial Board for Civil Cases of the Almaty City Court dated July 23, 2021, the petitions of D.K. Sarsenbaev for the annulment of the decision of the Forum Votem arbitration court dated September 21, 2016 were denied.
The representative of Sarsenbayev, D.H., lawyer Bisenov, J.N., appealed to the court of cassation instance to cancel the ruling.
The appeal was returned by the cassation instance, since it was not accompanied by a written notification from the lawyer about the defense of D.K. Sarsenbaev's interests in the cassation instance court.
By the ruling of the judicial board for civil cases of the Court of the city of Nur-Sultan dated November 3, 2020, the petition was denied.
LLC "Realexport" on the cancellation of the decision of the Arbitrator of the Permanent Arbitration Court of the city of Nur-Sultan dated September 1, 2020 on satisfaction of the claim of LLP "Market 2050" to LLC "Realexport" on debt collection, damages, penalties, arbitration fee and representation expenses.
The representative of Realexport LLC, 0Mip6eKoe A.T., appealed to the court of cassation instance to cancel the ruling.
The petition was returned to the cassation instance, since it does not include a document confirming the membership of 0Mip6eKoea A.T. in the chamber of legal consultants, or a corresponding notice of protection (representation), a copy of the lawyer's certificate.
Persons involved in the case
Part 1 of Article 464 of the CPC provides for an exhaustive list of persons entitled to file a petition for the annulment of an arbitration award - these are the parties to the arbitration proceedings and third parties.
When submitting a petition by a third party, the court should establish that the arbitration has made a decision regarding its rights and obligations, while it has not been involved in the case.
Sub-paragraphs 1)-5) of paragraph 1 of Article 52 of the Law provide for the grounds for the annulment of the arbitral award.
The Law does not provide for such an independent basis for annulment of an arbitration award as infringement of the rights of third parties. This means that three persons, along with a party to the arbitration proceedings, are required to comply with two conditions at the same time.:
The right to file a petition is vested not with any third party, but only with someone who has not been involved in the case, but with respect to the rights and obligations that the arbitration has decided.;
A third party must prove to the court that there are grounds for revoking the arbitration award provided for in subparagraphs 1)-5) of paragraph 1 of Article 52 of the Law.
In accordance with part 2 of Article 465 of the CPC, the court notifies the parties to the arbitration proceedings, as well as third parties, of the time and place of the court session, if they file a petition. Notification of the arbitration, the cancellation of which has been announced, is not required.
Meanwhile, the courts continue to subpoena not only the parties to the arbitration and third parties, but also the arbitrators. The arbitral tribunal is not a party, and its participation in the proceedings is not provided for by law.
For example, the arbitration decision of June 10, 2019, as part of the sole arbitrator Mukhamedzhanov A.S. satisfied the claim of Ruf V.V. Kbaydauletov A.B. for the recovery of the amount.
Baidauletov A.B. appealed to the court with a motion to cancel the arbitration award, arguing that he had not been notified of the arbitration proceedings.
The Esil District Court of Astana informed the parties to the arbitration proceedings, as well as the arbitrator A.S. Shamedzhanov, who appeared at the court session, about the consideration of the said motion. Moreover, at the pre-trial hearing, the judge heard his explanations, who asked for the annulment of the arbitration decision to be refused.
Also, by an arbitration decision dated January 31, 2020, as part of R.R. Arbitrakumurskin, the claim of A.S.K. Kazakhstan LLP was satisfied to FKH "Burp <leather>" and LLP "Eulie-Ata Phoenix" on debt collection and penalties.
The defendants applied to the Council of Ministers of the North Kazakhstan region with a motion to cancel the arbitration award due to the lack of jurisdiction of the arbitration dispute.
The court notified the parties to the arbitration proceedings, as well as the arbitrator, R.R. Kumurskin, about the consideration of the said petition. Moreover, the court heard his explanations at the court session, who asked to refuse to cancel the arbitration decision.
The Court of Appeal of the North Kazakhstan region also notified the arbitrator R.R. Kumurskin of the private complaint, the latter applied for consideration of the case without his participation.
A similar violation was committed by the same court in case No. 5930-20-00-2/641.
Thus, violations are committed both by the courts, notifying the arbitrators of the out-of-court proceedings, and by the arbitrators who take part in reviewing petitions for the annulment of arbitral awards.
Summoning an arbitrator to court and hearing his position on the arbitration award is contrary to the principles of the CPC.
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