Comments on article 482. Waiver by a foreign State of immunity in respect of arbitration proceedings of the Civil Procedure Code of the Republic of Kazakhstan
If a foreign State has expressed its written consent to arbitration of disputes with its participation that have arisen or may arise in the future, it is recognized that, in relation to these disputes, it has voluntarily agreed to waive judicial immunity in matters related to the exercise by the court of the Republic of Kazakhstan of its functions in relation to arbitration.Along with the widespread use of the right to immunities, international organizations may, due to certain circumstances, waive them.
Only the highest official of an international organization or his deputy acting on the basis of a special power of attorney is authorized to waive immunity.International immunities are waived in order to ensure the impeccable reputation of international organizations and their willingness to act in good faith in cases where the use of immunity would be evidence of inhumane treatment of injured people in need of compensation. To this end, international organizations are recommended to conclude insurance contracts for vehicles in case of non-contractual harm. In case of harm from a source of increased danger, international organizations express their readiness to consider a civil dispute in a national court. In other circumstances, international organizations carefully evaluate appeals to them regarding the waiver of international immunities and consent to participate in court proceedings.
The waiver of judicial immunity of both a foreign State and an international organization entails unhindered consideration of the case by an arbitration court in accordance with the generally established procedure. According to article 17 of the United Nations Convention on Jurisdictional Immunities of States and Their Property (New York, December 2, 2004), if a State enters into a written agreement with a foreign natural or legal person to submit disputes concerning a commercial transaction to arbitration, that State cannot invoke immunity from jurisdiction in proceedings before a court of another State. a State that normally has the competence to deal with cases concerning:a) validity, interpretation or application of the arbitration agreement; b) the arbitration procedure; or c) the confirmation or cancellation of the award, unless otherwise provided in the arbitration agreement.
In accordance with article 27 of the United Nations Convention on Jurisdictional Immunities of States and Their Property (New York, December 2, 2004), a State may make a reservation that it does not consider itself bound by paragraph 2 of this article, stating that disputes between States parties concerning the norms of the Convention that are not resolved through negotiations may be considered by arbitration or in an International Court.
These dispute resolution methods are proposed in the event that no agreement has been reached between them as a result of negotiations. The declaration of this reservation to the said norm of the Convention is not required due to the recognition of the jurisdiction of the International Court of Justice within the framework of UN membership, as well as arbitration as one of the dispute resolution methods in the Law of the Republic of Kazakhstan "On Arbitration". In addition, the Republic of Kazakhstan is a party to the Convention on the Settlement of Investment Disputes between States and Citizens of Other States of March 18, 1965 and the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards of June 10, 1958.
LIBRARY OF THE SUPREME COURT OF THE REPUBLIC OF KAZAKHSTAN
Astana, 2016
UDC 347 (574)
By 63
ISBN 978-601-236-042-4
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