What Is The Correct Way To Determine Jurisdiction Of Disputes With Participation Of Investors In The Subsoil Use Sphere?

Resolution of disputes with participation of investors

Under provisions of the new Civil Procedure Code1 effective from 1 January 2016, there is a special procedure for the consideration of certain "investment disputes" by the Supreme Court of the Republic of Kazakhstan (Supreme Court) and the Astana City Court as first instance courts (collectively - Investment Courts).

The new Civil Procedure Code envisages different procedures for consideration of investment disputes depending on the investor's category. According to Article 28 of the Civil Procedure Code the competence of the Supreme Court includes only two categories of disputes, one of which is the "investment disputes with the participation of a large investor," whereas "investment disputes" not included in the competence of the Supreme Court will be considered by the Astana City Court as the court of first instance.

The term "investment dispute" defined in Article 296 of the Entrepreneurial Code2 as "disputes arising from contractual relations between investor, including large investor, and the state authorities in connection with the investment activities of the investor". The term "investor" refers to legal entities and individuals performing investments in the Republic of Kazakhstan, whereas the term "large investor" means a legal entity or individual that invested in the Republic of Kazakhstan not less thantwo million times monthly calculation indexes3 (MCIs).

Article 274 of the Entrepreneurial Code provides that the term "investments" refers to all kinds of property (except of the goods intended for the personal use) including assets purchased under financial lease arrangements from the dated of the lease agreement as well as rights on such items contributed by an investor into a charter capital of a legal entity or increase of fixed assets used for the entrepreneurial activity, as well as for the implementation of public-private projects and concession projects. Disputes that fall under the category of "investment disputes" are considered in Astana City Court acting in the capacity of a first instance court following the generally established procedure, except for the cases under the jurisdiction of the Supreme Court. In addition to "investment disputes" the Astana City Court also considers "other disputes between investors and the state authorities associated with investment activity of investors".

According to Article 402 of the Civil Procedure Code an appellate claim on the decision...