Consideration of an application for annulment of an arbitral award
LLP "A" appealed to the court with a request to restore the procedural time limit for appealing the decision of the international arbitration court "IUS" and a request to cancel the decision of the international arbitration court "IUS" dated May 17, 2019, arguing that the rules of procedural and substantive law were violated when making the decision by the arbitration court. By the ruling of the specialized interdistrict Economic Court of Almaty dated August 14, 2019, the application of LLP "A" was denied. By the ruling of the Judicial Board for Civil Cases of the Almaty City Court of September 11, 2019, the ruling of the court of first instance was canceled. The deadline for appealing the decision of the international arbitration court "IUS" dated May 17, 2019 in case No. 18/52-CF on the claim of LLP "A" to LLP "K" for debt collection, on the counterclaim of LLP "K" to LLP "A" for damages has been restored. The decision of the international arbitration court "IUS" dated May 17, 2019 has been canceled. The Judicial Board for Civil Cases of the Supreme Court overturned the ruling of the appellate instance, upholding the decision of the court of first instance on the following grounds. According to paragraphs 2 of article 53 of the Law "On Arbitration" (hereinafter referred to as the Law), a request for annulment of an arbitral award cannot be filed after one month from the date of receipt by the party submitting this request of the arbitral award. The case materials confirmed that the arbitration award was received by LLP "A" on May 21, 2019. The request for annulment of this award was received on August 2, 2019, and the deadline for filing the request expired on June 21, 2019. The appellate instance, restoring the time limit for appealing the decision, referred to the fact that the plaintiff's representative A. had injured her leg, and submitted a medical certificate.
The court of first instance reasonably disagreed with the applicant's arguments on the restoration of the time limit for appealing the decision of the commercial court, pointing out that this certificate of temporary disability of a representative of a legal entity dated July 26, 2019 cannot serve as a sufficient basis for restoring the missed deadline. The plaintiff is a legal entity, and the illness of one of its representatives is not a valid reason to restore the deadline for filing a petition. In substantiating the legality of the applicant's claims, the court of appeal stated in its ruling that the arbitrator of the international arbitration "IUS" K., in direct contradiction with the norms of the Laws "On Civil Service" and "On Joint-Stock Companies", is a civil servant. These conclusions do not correspond to the case file and are based on the incorrect application of substantive law. It is established that K. He is a member of the Board of Directors of JSC "N", but as an independent director. According to subparagraph 20) of Article 1 of the Law of the Republic of Kazakhstan "On Joint-Stock Companies", an independent director is a member of the board of directors who is not an affiliated person of this joint-stock company and a government employee. The Cassation Judicial Board also declared unlawful the conclusions of the court of appeal that public order had been violated when making the award. According to subparagraph 1) of Article 2 of the Law, the concept of public order of the Republic of Kazakhstan is defined as the basis of law and order, enshrined in the legislative acts of the Republic of Kazakhstan. Based on the analysis, meaning and content of the given rule of law, it follows that the public order of the Republic of Kazakhstan should be understood as the fundamental fundamental principles and norms on the economic and social structure established by the state, the main foundations of the rule of law, enshrined in the Constitution and national legislation of the Republic of Kazakhstan. Thus, an arbitration award can be recognized as violating the public order of the Republic of Kazakhstan only if, as a result of its execution, actions are committed that are either directly prohibited by law or that damage the sovereignty or security of the State and affect the interests of large social groups.
Consideration of an application for annulment of an arbitral award
The applicant did not provide such evidence in court. The Court of Appeal's reference to the provisions of resolution No. 2/2002 of the International Commercial Arbitration Committee of the International Law Association (ILA – non-profit association) is untenable. In this resolution, the association provides a number of recommendations on the application by courts of the norms of national legislation on public order in the recognition and enforcement of foreign arbitral awards. In this case, the subject of the proceedings in the International Arbitration "IUS" was a commercial dispute between two Kazakhstani private commercial enterprises. The claims of the parties considered by the arbitration are exclusively private law and are related to the fulfillment of contractual obligations. The parties to the dispute are residents of the Republic of Kazakhstan. An arbitration award made in the Republic of Kazakhstan will be executed on its territory. Thus, the arbitration award does not contain any violations of public policy. The court of appeal overstepped its authority and unreasonably assessed the evidence, thereby violating paragraph 3 of article 52 of the Law, according to which, when considering an application for annulment of an arbitral award, the court does not have the right to review the arbitration award on its merits. In such circumstances, the court of appeal had no legal grounds to overturn the ruling of the court of first instance.
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
