Petitions from the Law Firm for the annulment of the arbitration award

To the district court No. 2 of Almaly district of Almaty

from the defendant: LLC "__________________" INN __________________

Kurchatov, Kursk region, Russian Federation, __________________

Proxy representative: Law and Law Law Company LLP

BIN 190240029071 Almaty, Zhibek Zholy ave., 50, office 202, Business center Quarter

info@zakonpravo.kz / www.zakonpravo.kz + 7 727 978 5755; +7 700 978 5755

plaintiff: LLP "__________________" BIN 070740002112 Almaty, __________________ +7 __________________

 

The petition

on the cancellation of the arbitration award

__ May 20__ permanent Arbitration "__________________" ( hereinafter referred to as Arbitration) consisting solely of the presiding arbitrator, __________________, when to the secretary __________________, with the participation of the plaintiff's representative, __________________, in a closed session in the Arbitration room "__________________", located at: Republic of Kazakhstan, Almaty, __________________, having considered the arbitration case №__________________ according to the statement of claim of the LLP "__________________" (hereinafter referred to as the Plaintiff) to LLC "__________________" ( further– the Defendant) on the recovery of the amount owed, DECIDED: the claim of LLP "__________________" to LLC "__________________" to collect the amount owed - to satisfy in full; Collect from LLC "__________________" in favor of the LLP "__________________" the amount of debt in the amount of 7,733,700 (seven million seven hundred thirty-three thousand seven hundred) rubles, which is equivalent to the amount of 45,860,841 (forty-five million eight hundred and sixty thousand eight hundred and forty-one) tenge (at the exchange rate of the National Bank of the Republic of Kazakhstan on the date __.05.20__, 1 ruble is equal to 5.93 tenge); Collect from LLC "__________________" in favor of the LLP "__________________" the amount of the arbitration fee in the amount of 77,310 (seventy-seven thousand three hundred ten) rubles, which is equivalent to the amount of 458,608.41 (four hundred and fifty-eight thousand six hundred and eight) tenge (at the exchange rate of the National Bank of the Republic of Kazakhstan as of 04/22/20__ 1 ruble is equal to 5.93 tenge).We disagree with the Arbitration decision on the following grounds:_ On January 20, a sublease agreement for railway freight wagons was concluded between the Plaintiff and the Defendant №________________ ( hereinafter referred to as the Agreement), under which the Plaintiff undertakes to provide the Defendant with railway gondola cars for temporary use under the Act of Acceptance and Transfer to Sublease (hereinafter referred to as the Agreement). – Wagons) in the amount of 25 units._ On _ February 20__, an additional agreement No. ___ to the Contract was concluded between the Plaintiff and the Defendant (hereinafter referred to as – Agreement), according to which the number of sublet Wagons was increased to 50 units.The cars received under the Sublease Agreement began

 

to break down and fail, the Defendant, not wanting to come into conflict with the Plaintiff, repaired the Wagons at his own expense. Due to unforeseen financial costs, the Defendant had difficulties in making timely payments for the use of Wagons under the Contract.According to clause 7.1 of the Agreement, the claim procedure for dispute resolution is mandatory. On March 27, 20__, the Defendant received the claim by e-mail (ex. №__________________) from the Plaintiff with a demand to immediately pay the amount owed. Claims from __ April 20__ and __ April 20__ were also received by e-mail.In response to the Plaintiff's claims, the Defendant explained his financial difficulties, asked to make an invoice for payment and undertook to repay the amount owed in parts until the Wagons were sublet to the Plaintiff. However, the Plaintiff did not provide an invoice for payment, moreover, he did not intend to resolve the dispute through negotiations, although clause 7.3 of the Contract states that all disputes and disagreements arising during the performance of obligations under the Contract are resolved through negotiations between the Parties.In accordance with clause 7.2 of the Agreement, the party receiving the claim is obliged to review it and respond on its merits no later than 30 days from the date of its receipt. That is, according to the Contract, the deadline for reviewing the claim expires on __ April 20__ of the year. However, despite this, the Plaintiff filed a claim with the Arbitration Court on April 20.The Defendant learned that the arbitration was scheduled for __ May 20__ of the year on __ April 20__ of the year.

Since the Defendant is in the Russian Federation, he was unable to attend the court hearing and defend his rights and interests, as well as defend his position._ On April 20, the Defendant sent a response to the statement of claim to the Arbitration Court, in which he requested that the arbitration be postponed for three weeks in order to determine the actual amount owed to the Defendant (since the claims were overstated) and to provide an opportunity to conclude a settlement agreement on voluntary repayment of the debt. However, despite the Defendant's requests, the hearing scheduled for __ May 20__ was not postponed and was held without the Defendant's participation._ On May 20, the Defendant sent another response to the statement of claim to the Arbitration Court, requesting that the proceedings be postponed until the Wagons were completely removed from the sublease in order to determine the exact amount of the debt, since at the time of filing the claim the Wagons were still in sublease, therefore it was impossible to calculate the actual debt. It is interesting that the Plaintiff in his claims requests to recover from the Defendant the entire amount payable for the month of April, however, based on the principles of good faith and reasonableness, given that the claim was filed on __ April 20__, the Plaintiff should have asked to recover the amount owed for the month of April from __.04.20__ On 04.20, in accordance with paragraph 1 of Article 31 of the Law of the Republic of Kazakhstan "On Arbitration" (hereinafter referred to as the Law), the parties participating in the arbitration proceedings have the right to review the case materials and make copies of these materials.According to paragraph 3 of Article 32 of the Law, an arbitration hearing (part of it) may be conducted using videoconferencing and other programs and technical means at the request of the parties or at the initiative of the arbitration._ On May 20, the Defendant sent a petition to the Arbitration Court with a request:

Provide copies of all documents submitted by the plaintiff in the civil case via electronic communication, by e-mail __________@mail.ru to prepare a reasoned response to the statement of claim and prepare documents for participation in the proceedings;

Provide video conferencing, due to the fact that the Respondent's representative cannot appear due to the distance from the place of arbitration proceedings.

To postpone the consideration of the case to __.05.20__ in order to prepare a reasoned response to the statement of claim with the provision of all necessary documents and evidence.

_ On May 20, the Plaintiff sent an objection to the Respondent's withdrawal, in which he asked the Arbitration Court to refuse to satisfy the Respondent's request to postpone the court session, but no justification for such a refusal was given. On the same day, the Plaintiff filed an objection to the Defendant's motion to consider the case by videoconference, in which he asks the Arbitration Court to reject the motion, arguing as follows: "It seems that the Defendant is deliberately delaying time, and we demand that the case be considered in a general manner and with the participation of the Defendant's representative personally in Arbitration."________________". It is unclear to us how the Defendant's motion to review the case by videoconference could delay time. In this case, the Plaintiff's intention is to deprive the Defendant of the opportunity to defend his position._ On May 20, the Arbitral Tribunal, by its ruling, refused to satisfy the Defendant's request dated May _, 20, regarding the conduct of arbitration proceedings by videoconference, and regarding the provision of copies of all documents submitted by the plaintiff in the civil case by electronic communication and postponing consideration of the case on 05/20/20 in The Arbitrator does not specify anything in the operative part. In the reasoning part of the ruling dated __ May 20__, the Arbitrator stipulates that Arbitration does not prevent the review and copying of case materials, but the Law does not require sending copies of materials by electronic or other mail.By his ruling of __ May 20__, the Arbitrator violated:

The requirements of clause 4 of Article 26 of the Law according to which, unless otherwise agreed by the parties, copies of all documents, materials and information provided to the arbitration by one of the parties must be transferred by the arbitration to the other party within seven calendar days from the date of their receipt by the arbitration.

The requirements of clause 3 of Article 32 of the Law, according to which an arbitration hearing (part of it) may be conducted using videoconferencing and other programs and technical means at the request of the parties or at the initiative of the arbitration.

The requirements of clause 4 of Article 5 of the Law, according to which arbitration proceedings are conducted in compliance with the principles of competition and equality of the parties, meaning that the parties to arbitration proceedings choose their position, ways and means of defending it independently and independently of anyone, and enjoy equal rights and bear equal responsibilities.

The requirements of clause 5 of Article 5 of the Law, according to which arbitration proceedings are conducted in accordance with the principles of fairness, which means that arbitrators and arbitrations in resolving disputes referred to them and the parties to arbitration proceedings must act in good faith, observing the established requirements, the moral principles of society and the rules of business ethics.

 

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