Getting The Deal Through – Dispute Resolution 2014

Litigation

1 What is the structure of the civil court system?

Kazakhstan's court system is comprised of four tiers of courts:

special district courts and general district courts; appellate courts; cassation courts; and the Supreme Court. Specialised district courts focus on specific 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, the cassation court and the Supreme Court, there are special panels that focus on certain categories of cases.

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

2 What is the role of the judge and the jury in civil proceedings?

Although the Republic of Kazakhstan Code of Civil Procedure (CPC) declares that the civil procedure is adversarial, in practice, due to the Soviet history, courts generally tend to take the central role in civil proceedings, requiring parties to produce evidence, raising questions to parties and witnesses, appointing experts, and otherwise ensuring that the circumstances of the case are fully and properly examined. The jury is not involved in civil litigation. The jury could be engaged in criminal proceedings with respect to certain categories of crimes.

3 What are the time limits for bringing civil claims?

Statutory limitation is a matter of substantive law, and the relevant rules are described in the Civil Code. The expiry of the statutory limitation period prior to filing a lawsuit is a ground for rejecting a claim. Statutory limitation is applied by a court only at the request of the defendant, provided this is done prior to issuing the judgment.

Generally, the statute of limitation in commercial cases is three years following the date when an affected party became aware or ought to become aware of the violation of his or her right. Although the Civil Code does not specifically provide the possibility for parties to suspend the statutory limitation, it lists a number of situations where the statute of limitation could be suspended.

The statute of limitation renews with filing of a lawsuit, entry by the parties into a mediation agreement, or a debtor's actions that demonstrate recognition of debt or other commitment. Under certain exceptional circumstances where a court may find that the statutory limitation period was missed due to valid reasons, eg, serious illness, the court may restore the statutory limitation period.

4 Are there any pre-action considerations the parties should take into account?

Generally, there are no mandatory prerequisites for filing a lawsuit, except where explicitly required by law or contract. For example, in relation to certain categories of claims (claims against transport operators, claims against mass media, consumer claims, or claims seeking termination of a contract, etc), prior submission of the claim to the potential defendant is mandatory. Bringing a lawsuit would be possible only upon expiration of a time frame set by law following the submission of such prior claim.

Alternatively, if parties agreed in a contract that, prior to bringing a lawsuit, they would follow certain preliminary procedures (eg, mediation, negotiation, expert determination), such preliminary procedure must be observed by the time a lawsuit is filed. Otherwise, courts would refuse to initiate the proceeding until such procedures are observed, unless one party can prove that it is no longer possible to observe this preliminary procedure.

5 How are civil proceedings commenced? How and when are the parties to the proceedings notified of their commencement?

Most proceedings are initiated by filing a statement of claim. In a number of special proceedings, a petition would be filed to initiate the proceeding (eg, bankruptcy proceedings, proceedings over challenges of acts of state authorities, proceedings seeking recognition of a legal fact).

Generally, the court informs the defendant of the lawsuit by post. Depending on the circumstances, instead of by post, the notice could be served by courier, electronic mail, text message, fax, telegram or other means of communication, provided it records the notice. Sometimes, a court may request that the claimant serves notice if he or she agrees.

There is no specific time frame within which notice must be served. Generally, notice is served within two to three weeks of the opening of the case, unless the defendant is located outside of Kazakhstan, when service may take considerably longer.

Along with the notice, the defendant is also provided with a copy of the claim and documents supporting the claim. The notice is served at the address of the defendant as indicated by the claimant. If a defendant is not present at its address, the notice could be served at the defendant's place of employment or residence. If the defendant is not available, the notice is served with a local municipality or property management organisation at the defendant's last known place of residence.

6 What is the typical procedure and timetable for a civil claim?

District courts review cases within two months and seven days following initiation of the case. This term could be extended to up to three months in total. The appellate court, the cassation court and the Supreme Court would review cases within one month upon receipt of the case.

Proceedings are commenced by the judge's announcement that the proceedings are open and a description of the dispute. A secretary will report to the judge on the parties present in court. The judge will check the powers of attorneys...