Litigation & Dispute Resolution: Kazakhstan 2016

1 EFFICIENCY OF PROCESS

Overview

Kazakhstan gained its independence in 1991 from the USSR. Kazakhstan's judicial system is young, relatively underfinanced, and thus not sufficiently strong or independent. The system is in transition from a Soviet-style and judge-dominated, inquisition-type civil process to a more liberal, competitive judicial process. Corruption, although not common, is said to take place.

This causes a series of uncertainties in the judicial system, such as lack of sufficient predictability in judicial practice of courts, lack of sufficient qualification of judges (sometimes), relatively low level of rule of law (depends on a judge), although overall the system works at acceptable levels and much depends on individual judges assigned to review specific cases.

Judicial process is relatively quick and legal fees are not significant.

Courts are generally driven by form rather than substance, which is a general feature of most post-Soviet courts. Courts are strict in terms of observing formalities. For example, witness statements are extremely rarely taken seriously in commercial cases, while document evidence is seen as a key source of evidence.

Foreign clients should therefore be prepared for these uncertainties when entering domestic litigation in Kazakh courts. The situation in the judicial system is improving, although not as fast as we could wish.

Structure of courts

Kazakhstan's court system is generally comprised of three tiers of courts: (i) special district courts and general district courts; (ii) appellate courts; and (iii) cassation court (the Supreme Court).

Specialised district courts review special categories of cases, such as administrative, commercial, criminal and juvenile. The vast majority of commercial disputes are tried in specialised commercial (economic) district courts. These courts have jurisdiction to review all commercial disputes, regardless of their size, provided both parties to the dispute are legal entities or entrepreneurs. General district courts review all civil cases that do not fall within the jurisdiction of any other specialised district court.

The distribution of courts according to specialisation exists only at the level of district courts. There is no such distribution in the appellate courts and cassation courts. However, within the appellate court and the cassation court, there are special boards that focus on certain categories of cases (civil and administrative, or criminal).

Civil courts are spread throughout 16 administrative regions of Kazakhstan, with each administrative region having one specialised commercial (economic) district court and appellate court. Generally, each town and smaller district comprising the administrative region has a general district court.

For certain categories of disputes, for example, so-called investment disputes (disputes arising out of an investment contract between the state and an investor) or disputes relating to investment activity, the appellate court of the city of Astana (capital city) would be the court of first instance, while the Supreme Court would be the court of appeals and cassation. For investment disputes or disputes relating to investment activity involving a large investor (where the size of investment exceeds approx. US$ 12.7m), the Supreme Court acts as the court of first instance.

Commencing proceedings

Pre-trial procedure According to rules of Kazakh civil procedure, before applying to court, a claimant may be required to follow certain pre-trial procedure, i.e. usually filing a written demand addressing relevant clams to the counter party. Mandatory pre-trial procedure is required by law in relation to certain sensitive categories of civil claims (e.g. claims against transport operators, consumer claims, and claims against mass media for the protection of reputation and dignity, employment-related claims, etc.).

Mandatory pre-trial procedure is also required when such pre-trial procedure is set by contract. Failure to observe pre-trial procedure when required by law or contract would usually prevent a civil claim filed to court from moving forward. The court would return the case file and advise that the pre-trial procedure is observed, except where the claimant can demonstrate that pre-trial procedure is not possible to observe.

Bringing a claim to court, review and appeal process District court

A civil case is commenced by filing a statement of claim. A statement of claim must satisfy the requirements to its form and contents as stipulated in Articles 148 and 149 of Civil Procedure Code...

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