Arbitration and Enforcement of Both Arbitral and Competent Courts Awards

Arbitration and Enforcement of Both Arbitral and Competent Courts Awards

The frequency of seeking by citizens for protection of their violated rights in the courts is increasing from year to year. However, the organisations have also not been neglecting their rights. That is why arbitration disputes are one of the most common types of cases among all the court cases.

Kazakhstani arbitration courts settle the contractual property disputes.

To date, organisations and companies from different countries, when concluding contracts, generally believe that arbitration proceeding is better than court proceedings, that conciliation of the parties is better than an appeal to arbitration, and dispute prevention is much better than the conciliation. However, it is not always possible to prevent disputes between the parties, to resolve the conflict through direct negotiations, so for the legal security of transactions it becomes important to create conditions ensuring the objective and competent resolution of potential disputes. Therefore, international arbitration, as well as the national arbitration, is a way to final resolution of the dispute by an impartial, non-state arbiter in accordance with the voluntary arrangement between the parties.

What is an international commercial arbitration (arbitration court)? This is the main mechanism for dealing with disputes related to the international trade, economic, scientific, technical and other forms of cooperation between the individuals and legal entities, which arise in connection with the failure or improper performance of the obligations under the contract or to different interpretations by the parties of the contract, or the lack of conditions and related references.

The only need is to know how to interpret the law. In the meantime, the tax arbitrage disputes are a share of professionals. Only a qualified lawyer, who not only knows the theory, but, what is more importantly, is an excellent practitioner, will be able to guarantee the successful resolution of any arbitration dispute.

The experts of our company have deep knowledge of the procedural and civil law as well as general legal practice.

Recent Experience:

• legal assistance to the large German company in undertaking of the security measures to ensure the arbitral award;
• protection of Italian company’s interests in the Kazakh arbitration court from the claim regarding the improper performance of the supply contract.

Execution of Judicial Acts

Execution of judicial acts is an essential part of legal practice, which reflects the effectiveness of justice in the State.

Imperfection of the legal framework that governs the execution, including the enforcement, negates the protection of the rights and law-protected interests and reduces the credibility of the judicial authorities.

The case won in the court is not always a guarantee that the court decision will be executed.

Many businessmen wrongly believe that once a writ of execution is with a bailiff, then there are no concerns for them because the bailiff will do everything for them. However, it is not so. Bailiffs are very busy, and if they are not controlled, then they perform their duties very formally. Of course, they will check availability of funds in current accounts of the debtor; but, as a rule, to this time, there are already no funds in accounts. Further, the bailiff is required to take all steps to search for the property, seize it, sell, etc. Needless to say what unpleasant and time-consuming work it is. So if a creditor failed to take care of its own interests as the writ of execution may be left without any progress for a long time.

That is why it is important to seek assistance in a law firm that has relevant experience in this field.  

Execution of Kazakhstani Court Decisions

The tasks of enforcement proceedings are obligatory and timely execution of court decisions, rulings and resolutions on civil and administrative cases, verdicts and judgments on criminal cases in terms of asset recovery, as well as execution of judgments and decisions of other bodies in the cases stipulated by law.

The enforcement stage is the final and obligatory stage in the civil litigation.

First, it is a result of the consideration and resolution of civil cases, and, secondly, the protection of subjective civil rights and legal interests.

Many principles of the civil procedural law are effective in enforcement proceedings, for instance legality, permissive rule, equality of the parties, the equality before law. The feature of the enforcement proceedings is that it is not subject to the principles of objective (court) truth, immediacy, continuity.

The ultimate purpose of considering any civil case is a legitimate and valid court decision. Once it comes into force, it becomes obligatory and results in committing those acts, to that extent and by those persons, in respect of which the court decision has been made, as well as in forced influence from of the law enforcement authorities in accordance with the law.

Execution of Arbitral Awards and Decisions of Foreign Courts

An arbitral award is recognised binding, and when submitting to the competent court a written petition is to be executed in the procedure and within the period set forth in the decision.

If an arbitral award does not establish the period, it shall be subject to immediate execution.

Decisions of foreign courts and arbitration are recognised and executed in the Republic of Kazakhstan, if it is specified by law or international agreement of the Republic of Kazakhstan on the reciprocal basis.

Terms and procedure for recognition and execution of foreign judgments and arbitral awards are determined by law, unless otherwise established by an international agreement of the Republic of Kazakhstan.

The decision of a foreign court or arbitration may be brought to the enforcement within three years after the decision enters into force. Such period missed for cause may be reinstated by the court of the Republic of Kazakhstan.

Enforcement of Arbitral Award

Foreign judgments and arbitral awards are recognized and enforced in the Republic of Kazakhstan, unless required by law or international treaty of the Republic of Kazakhstan on the basis of the reciprocity. That is, in this case recoverer can apply directly to the Court of Kazakhstan according to the rules of the relevant international treaties.

In this case it is possible to extract write of execution to enforce the award in both Kazakhstan and the place of arbitration.  

If an arbitral award has not been executed voluntarily within a period specified thereby, the party, in which favour the arbitral award was rendered (collector), may apply to a court at the place of the dispute consideration by arbitration with a claim for enforcement of the arbitral award.

A claim for the writ of enforcement is attached with the duly certified original award or a duly certified copy thereof, and the original arbitration agreement or a duly certified copy thereof. If the award or agreement is in a foreign language, the party shall provide a duly certified translation into Kazakh or Russian.

The claim for a writ of execution may be filed not later than three years after the expiration of the period for voluntary execution of the arbitral award.

The claim for a writ of enforcement, which was filed with delay or which had no required documents attached, is returned by the court without consideration with the relevant ruling.

The court may restore the period for filing a claim for a writ of enforcement, if it finds the excuse for missing the deadline as reasonable.

The claim for a writ of enforcement is considered solely by a judge within fifteen days after the receipt of the claim.

The court will notify a debtor of the claim for enforcement of the arbitral award, as well as on the location and time of consideration thereof. The claimant is also notified of the place and time for consideration of its claim. The failure of the debtor or the creditor to appear in court is not an obstacle to the consideration of the claim, unless the debtor requested to postpone the claim consideration indicating reasonable excuses for its failure to appear on hearing.

When considering the claim for a writ of enforcement the court may not review the arbitral award on the merits.

According to the result of the claim consideration the court makes a ruling to issue a writ of enforcement or refuse to dismiss the claim.

The court ruling on to issue a writ of enforcement shall be immediately executed.

Thus, at present, due to significant changes in the structure of public administration, expansion and deepening of legal reforms, it is better always to consult a competent lawyer, who will advise on all relevant issues. So, our company may assist you in this respect.

Thus, enforcement of judgments and arbitral awards in Kazakhstan is associated with the need to apply relevant knowledge and comply with many formalities in the process. In this case, you may need to refer to a competent lawyer, who will professionally advise you on all issues. Qualified lawyers of our company will be glad to assist you in dealing with such situations.

Recent Experience:

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