Issue 4 (14) 2011

19 THE DEVELOPMENT OF THE INTERNATIONAL COMMERCIAL ARBITRATION LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN

THE DEVELOPMENT OF THE INTERNATIONAL COMMERCIAL ARBITRATION LEGISLATION OF THE REPUBLIC OF KAZAKHSTAN

M.K. Suleymenov

Kazakh Humanitarian and Law University
8, Korgalzhinskoye shosse, Astana, Republic of Kazakhstan, 010000

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А.Е. Duseynova

Kazakh Humanitarian and Law University
8, Korgalzhinskoye shosse, Astana, Republic of Kazakhstan, 010000

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The proposed article is devoted to the analysis of the newest legislation that regulates the issues of the state immunity as well as the analysis of the problems of improvement of the operation of arbitration courts and international commercial arbitration in the Republic of Kazakhstan. The analysis touches upon the disputed issue that concerns correlation between jurisdictional immunity of a state and reference to the international commercial arbitration.

According to the authors’ opinion, the consent of a state to consider a dispute in the arbitration does not mean a waiver of the judicial immunity, but at the same time, it means the consent of a state to enforcement of an arbitral award. The affirmation of that can bee found in the legislation of different countries. The legislation of Kazakhstan demonstrates the same position (Article 432, the Civil Procedure Code).

The concrete proposals concerning the improvement of the legislation of the Republic of Kazakhstan on arbitration courts are provided. According to the authors’ opinion, for the further successful development of the arbitration courts in Kazakhstan it is necessary to:

1) exclude the principle of legality from the list of grounds for appeal of arbitral awards as it is contradicting the principles of arbitration proceedings, according to which the arbitral awards shall not be reviewed by the state courts;

2) remove the restriction of court jurisdiction, which at present covers only disputes arising from the civil law contracts;

3) exclude the possibility to appeal the arbitral awards by a third party not being a party to arbitration proceedings.


Keywords: Jurisdictional immunity; Arbitration court; International Commercial Arbitration; Improvement of the legislation


Bibiliograficheskijj spisok

  1. Boguslavskijj M.M. Mezhdunarodnoe chastnoe pravo: uchebnik. 5-e izd. M.: Jurist", 2004. 583 s.

 

 


      

      

 
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